§17.5 - Interference with Tenant's Possession

• Jurisdiction: Washington

§17.5INTERFERENCE WITH TENANT'S POSSESSION

The tenent's rights in cases of interference with possession by the landlord or a third party are discussed below.

(1) Implied covenant of power to lease

By the act of purporting to lease land to the tenant, the landlord necessarily and impliedly covenants that it has the power to do so. See Vellias v. Fifth-Pike Corp., 172 Wash. 319, 20 P.2d 14 (1933). A breach of this covenant occurs at the instant of leasing and lies in the fact that the landlord then lacked the legal power to let the premises. If the tenant has taken possession and subsequently is ousted by someone having paramount title, a breach of another implied covenant, the covenant of quiet enjoyment, occurs. If the paramount party had the right of possession from the time the lease was made, a prior tenant whose term had not expired, for example, then the landlord breaches both covenants. But if the paramount party's right to possession arose only after the lease was made, as with, say, a foreclosing mortgagee, then only the covenant of quiet enjoyment is breached.

(2) Implied covenant of quiet enjoyment

Implied in the landlord's act of leasing is a covenant of quiet enjoyment that, once the tenant has taken possession, it shall not be disturbed in it by the landlord or by any third person with a paramount right of possession. Wrongful evictions by the landlord, actual or constructive, breach this implied covenant. Interferences by third persons that cause a breach of this covenant may occur if the landlord's estate terminates by the occurrence of falling in of a condition or if a mortgagee prior to the leasehold forecloses. The third person must actually interfere with the tenant's possession if the covenant is to be breached. See 1 AMERICAN LAW OF PROPERTY §§3.47-.53 (A. James Casner ed., 1952).

(3) Interference by third parties under paramount title

No Washington authority has been found specifically on the issue of interference by third persons having a title superior to the tenant's. In two cases in which the landlord's other tenants interfered with the complaining tenant, the Washington court seems to have characterized the acts as being attributable to the landlord. See McKennon v. Anderson, 49 Wn.2d 55, 298 P.2d 492 (1956); Dobrentai v. Piehl, 92 Wash. 433, 159 P. 371 (1916).

(4) Interference by landlord

This section discusses a landlord's liability for interference with a tenant's possession in a variety of ways, including eviction, actual or constructive, interference by third parties not under the landlord's control, and criminal acts.

(a) Actual eviction

An actual eviction occurs when the landlord physically ousts the tenant from possession and keeps the tenant out. The wrongfulness of the landlord's actions is manifest. Shaffer v. Walther, 38 Wn.2d 786, 232 P.2d 94 (1951). Under the Residential Landlord‑ Tenant Act of 1973 it is designated "unlawful" for the landlord to "remove or exclude" the tenant except by court order. RCW 59.18.290(1).

Most of the litigation seems to revolve around the question of what lesser acts will amount to actual eviction. Something less than a physical touching may suffice, such as badgering the tenant out by threats to call the sheriff and otherwise forcing the tenant out. See Hobson v. Union Oil Co. of Cal., 187 Wash. 1, 59 P.2d 929 (1936). But threats that in the circumstances could not be carried out, or if carried out would not oust the tenant, would not be an eviction. Cline v. Altose, 158 Wash. 119, 290 P. 809 (1930). Similarly, threats to bring legal action to evict the tenant or, without more, a notice of forfeiture, would not be an eviction. Ennis v. Ring, 56 Wn.2d 465, 341 P.2d 885, 353 P.2d 950 (1959).

(b) Constructive eviction

The doctrine of constructive eviction is an extension of actual eviction. Instead of the landlord undertaking or threatening the tenant's removal, the landlord breaches a duty to the tenant by reason of which the premises become unusable, or "untenantable."

The interference must be serious enough to interfere with possession substantially, and may result from a wrongful act occurring outside of the leased premises. See John B. Stevens & Co. v. Pratt, 119 Wash. 232, 205 P. 10 (1922) (premises dangerous from disrepair); Buerkli v. Alderwood Farms, 168 Wash. 330, 11 P.2d 958 (1932) (improvements or facilities necessary to its use become unusable); Wash. Chocolate Co. v. Kent, 28 Wn.2d 448, 183 P.2d 514 (1947) (rat infestation); Matzger v. Arcade Bldg. & Realty Co., 102 Wash. 423, 173 P. 47 (1918) (shutting off of light and ventilation). Washington courts have been particularly sensitive to interference with the tenant's conduct of a business. See Coulos v. Desimone, 34 Wn.2d 87, 208 P.2d 105 (1949) (repeated insults in front of customers); Dobrentai v. Piehl, 92 Wash. 433, 159 P. 371 (1916) (violating express covenant granting exclusive concession); Brewster Cigar Co. v. Atwood, 107 Wash. 639, 182 P. 564 (1919) (changing store entrance in violation of covenant); Aro Glass & Upholstery Co. v. Munson-Smith Motors, Inc., 12 Wn.App. 6, 528 P.2d 502 (1974) (allowing water puddles to collect in auto sales lot). No constructive eviction occurred, however, when the landlord operated a tap-dancing studio above the tenant's theater, obtained the appointment of a receiver to collect rents, or inserted a clause in the lease prohibiting pets. Farrow v. Storck, 167 Wash. 233, 9 P.2d 105 (1932) (tap dancing); Exeter Co. v. Holland Corp., 172 Wash. 323, 20 P.2d 1 (1933) (receiver); Blakely v. King County Hous. Auth., 8 Wn.App. 204, 505 P.2d 151 (1973), review denied, 82 Wn.2d 1003 (1973) (pets).

The landlord's act must be wrongful, so the tenant has no cause of action if the tenant has consented to the landlord's acts of interference. Thompson v. R.B. Realty Co., 105 Wash. 376, 177 P. 769 (1919). If the landlord breaches a duty to repair and thereby causes the premises to become...