§17.4 - Tenant's Right of Possession and Enjoyment

• Jurisdiction: Washington

§17.4 TENANT'S RIGHT OF POSSESSION AND ENJOYMENT

Because the tenant has an estate in land, it is entitled during the term of the leasehold estate to possession and enjoyment of the interest. This section discusses the tenant's rights with respect to possession and enjoyment of that leasehold interest.

(1) Landlord's implied covenant to deliver possession

The tenant's right to exclusive possession of the demised premises is protected by an implied covenant of quiet enjoyment. A tenant has an action against its landlord for damages if the landlord, or one claiming through the landlord under a paramount title, keeps the tenant out. Engstrom v. Merriam, 25 Wash. 73, 64 P. 914 (1901). The tenant may also claim a pro tanto setoff against rent if the landlord denies the tenant possession of a portion of the premises. McLeod v. Russell, 59 Wash. 676, 110 P. 626 (1910). Alternatively, the tenant may maintain an action for possession against a landlord or against one claiming under the landlord who has control of the premises and refuses to allow the tenant to enter. Blanc's Cafe v. Corey, 110 Wash. 242, 188 P. 759 (1920). Much the same result may be obtained in a tenant's action for specific performance of the lease, even though it has never taken possession. See Duckworth v. Michel, 172 Wash. 234, 19 P.2d 914 (1933). Also, a tenant might rescind a lease if the landlord or a previous tenant with an unexpired leasehold withholds a substantial portion of the premises. Univ. Props., Inc. v. Moss, 63 Wn.2d 619, 388 P.2d 543 (1964).

Division I of the Court of Appeals has held that a landlord makes an implied covenant that an incoming tenant shall be able to take possession. Draper Mach. Works, Inc. v. Hagberg, 34 Wn.App. 483, 663 P.2d 141 (1983). The Supreme Court has not decided the issue. Where the question has been resolved in other states, American courts seem split on whether there is (the so-called English rule) or is not (the American rule) an implied covenant to deliver possession. See 1 AMERICAN LAW OF PROPERTY §3.37 (A. James Casner ed., 1952).

(2) Tenant's possessory interest

Because the tenant has an estate in land, as a general proposition, it is entitled during the term of that estate to exclusive possession against the whole world, including its landlord. Of course a tenant may voluntarily relinquish to or share its possession with others, such as assignees, subtenants, licensees, or guests.

Practice Tip: Most leases reserve a right of entry to the landlord. Issues of prior notice, safety, privacy, and security are typically dealt with in these clauses. See RCW 59.18.150 regarding a landlord's right of entry in leases governed by the Residential Landlord‑Tenant Act of 1973, Chapter 59.18. RCW.

(a) Interests, such as easements, included in leasehold

In a typical situation in which a tenant leases space in a larger building, the tenant also needs use of other parts of the building and property that remain in the landlord's general possession, such as hallways, stairways, elevators, and walkways. The law protects a tenant's use of those parts of the landlord's land and building that are necessary to the expected use and possession of the demised premises. See State v. Fox, 82 Wn.2d 289, 510 P.2d 230 (1973), cert. denied, 414 U.S. 1130 (1974); Schedler v. Wagner, 37 Wn.2d 612, 225 P.2d 213 (1950), aff'd on reh'g, 37 Wn.2d 612 (1951). This right extends also to a tenant's guests and those doing business with the tenant. State v. Fox, 82 Wn.2d 289; Konick v. Champneys, 108 Wash. 35, 183 P. 75 (1919). Although the landlord has general control over the access areas and may maintain them and reasonably regulate their use, it may not unreasonably impede access or interfere with those having the right of use. Konick, 108 Wash. 35; Lindblom v. Berkman, 43 Wash. 356, 86 P. 567 (1906).

Under some circumstances, a tenant may have the right to use the landlord's adjoining premises when necessary to enable the tenant to use the leased premises as intended. A tenant may run necessary utility connections and lines through the landlord's premises, as long as it does not unreasonably interfere with the landlord's own use. Burns v. Dufresne, 67 Wash. 158, 121 P. 46 (1912). This does not imply, however, that the landlord would be required to alter its own premises for the tenant's benefit. See Rockwell v. Eiler's Music House, 67 Wash. 478, 122 P. 12 (1912).

These rights appear to be implied easements and servitudes that a court is willing to say are within the contemplation of the parties. The use must be necessary to the tenant, not merely convenient. Thus, a tenant had no implied easement through a side entrance when it had access through a front entrance on the street. Jemo v. Tourist Hotel Co., 55 Wash. 595, 104 P. 820 (1909).

(b) Right to crops

The tenant owns, and is entitled to harvest, all crops that reach maturity during the term of its lease, even if they were already growing when the term began. Long Island Oyster Co. v. Eagle Oyster Packing Co., 22 Wn.2d 322, 156 P.2d 222 (1945). In the absence of permission from the tenant, neither the landlord nor, presumably, a former tenant may enter to harvest crops that were growing at the commencement of the leasehold. Id. These conclusions flow from the principle that immature crops are part of the land and pass with it. Similarly, a...