§17.6 - Repairs and Improvements

• Jurisdiction: Washington

§17.6 REPAIRS AND IMPROVEMENTS

This section discusses relative rights and duties of landlords and tenants with respect to repair and improvements on the leasehold premises.

(1) Common-law duty to repair

Neither landlord nor tenant has a duty to repair the demised premises in the absence of a covenant or a legislative requirement. Tailored Ready Co. v. Fourth & Pike St. Corp., 178 Wash. 673, 35 P.2d 508 (1934) (no landlord obligation). The landlord, as well as the tenant, may covenant to repair, but no covenant is implied solely from the existence of a local custom. Larson v. Eldridge, 153 Wash. 23, 279 P. 120 (1929) (alternative ground). Of course, a tenant may not permit waste. See §17.4(3)(a).

(2) Covenants to repair

The landlord may expressly covenant to make general or specified repairs, and consideration for that promise is found in the tenant's covenants. See Estep v. Sec. Sav. & Loan Soc'y, 192 Wash. 432, 73 P.2d 740 (1937). Usually the landlord's written or spoken undertaking is clear enough. Any phrase such as "necessary repairs to roof, walls or foundations are the concern of the lessor" is sufficient if it shows the parties' intent. Cordes v. Guy Inv. Co., 146 Wash. 143, 262 P. 131 (1927). When a promise to repair is made after the commencement of the term, it is not enforceable unless some fresh consideration is given for the promise. Taylor v. Stimson, 52 Wn.2d 278, 324 P.2d 1070 (1958). Consideration may be found where the tenant threatens to terminate the leasehold if the landlord does not make repairs. Id. (dictum); Lowe v. O'Brien, 77 Wash. 677, 138 P. 295 (1914).

The landlord's duty to repair does not arise until it learns of the need and until it has had a reasonable time to do the work. Marrion v. Anderson, 36 Wn.2d 353, 218 P.2d 320 (1950) (apparent holding); Franklin v. Fischer, 34 Wn.2d 342, 208 P.2d 902 (1949). If the defect existed and the landlord promised to repair at the beginning of the term, no notice is necessary. The landlord has a duty to inspect, discover, and repair hidden defects that then existed. Estep, 192 Wash. 432. The general measure of damages for the landlord's breach of a repair covenant is the difference in rental value between the premises in good repair and in the state of disrepair. Pappas v. Zerwoodis, 21 Wn.2d 725, 153 P.2d 170 (1944). As an alternative, a tenant may make the repairs and recover, or set off against rent, their reasonable cost. Thomson Estate v. Washington Inv. Co., 84 Wash. 326, 146 P. 617 (1915). The tenant may also recover consequential damages if, by reason of the landlord's breach of duty to repair, the tenant suffers lost profits or harm to its goods. Pappas, 21 Wn.2d 725; Cordes, 146 Wash. 143.

Practice Tip: Most leases prohibit offsets against rent, thereby depriving a tenant of the first of these two remedies. Many leases also effectively prohibit self‑help remedies by prohibiting the making of alterations without the landlord's consent.

If the landlord breaches the covenant by failing to repair a defect that exposes the tenant to an unreasonable risk of harm, and the defect in fact causes injury to the tenant, the landlord is liable. Teglo v. Porter, 65 Wn.2d 772, 399 P.2d 519 (1965); Estep, 192 Wash. 432. The landlord may be liable also for injuries caused by its negligent making of repairs, regardless of whether the landlord had been obligated to make them. Swanson v. White & Bollard, 185 Wash. 407, 55 P.2d 332 (1936) (dictum); McCourtie v. Bayton, 159 Wash. 418, 294 P. 238 (1930). The landlord has the defense of assumption of risk if the tenant knows of the defect that causes the injury and uses the defective thing or place in the face of that knowledge. Swanson, 185 Wash. 407 (alternative ground). Dicta in two cases suggest a qualification to this assumption-of-risk doctrine: If the tenant notifies the landlord of the defect and the landlord has agreed to fix it, the tenant does not assume the risk for a reasonable time during which the landlord could make the repairs. If the landlord fails to repair for an "unreasonable" time, however, the tenant once again assumes the risk. Johnson v. Dye, 131 Wash. 637, 230 P. 625 (1924) (dictum); Stoops v. Carlisle ‑ Pennell Lumber Co., 127 Wash. 82, 219 P. 876 (1923) (strong statement, not strictly necessary to reach result).

Tenants' repair covenants are generally of two sortsa covenant to make repairs during the term (a "repair"...