Retaliatory Eviction and Periodic Tenants in Washington

• Jurisdiction: Washington,United States
• Citation: Vol. 4 No. 03
• Publication year: 1981

UNIVERSITY OF PUGET SOUND LAW REVIEWVolume 4, No.2SPRING 1981

Retaliatory Eviction And Periodic Tenants In Washington

Phillip Raymond

In recent years, landlord-tenant law has moved toward a greater recognition of tenants' rights to safe and sanitary housing. One doctrine that has developed to protect tenants' rights, recognized in most jurisdictions,(fn1) is the retaliatory eviction (fn2) defense that prevents landlords from evicting tenants for attempting to assert their rights. In contrast to the trend, however, a Washington State Court of Appeals recently denied the retaliatory eviction defense to periodic tenants, those tenants most in need of its protection.(fn3) Despite the appellate court's decision, the policies underlying the Washington State Residential Landlord-Tenant Act(fn4) and the Act's language require recognition of the retaliatory eviction defense for periodic tenants.

This comment evaluates the availability of the retaliatory eviction defense to periodic tenants in Washington State in light of a recent appellate court decision, Stephanus v. Anderson, (fn5)denying periodic tenants the defense where the statutorily required twenty day termination notice is provided. An analysis of the basic policies underlying the Act, to ensure safe, sanitary housing conditions and to prohibit landlords' retaliatory actions against tenants exercising their rights to attain decent housing conditions, indicates periodic tenants be allowed to assert the retaliatory eviction defense. Additionally, the language of the retaliatory action provision of the statute supports an interpretation granting periodic tenants use of the defense. Based on these considerations, this comment concludes that Washington State courts should recognize the availability of the retaliatory eviction defense to periodic tenants.

The common law warranty of habitability and housing codes formed the basis for the development of the retaliatory eviction defense. Historically at common law, when a tenant leased land from a landlord, property law governed the transaction;(fn6) the lease was considered a conveyance of an interest in land.(fn7) The tenant acquired an estate in land and was subject to the doctrine of caveat emptor, which placed the burden of inspecting the premises on the tenant and left him without redress for defective housing conditions.(fn8) In light of economic and social conditions of that time, placement of the burden on the tenant made sense. In an agrarian economy, the land itself was valuable and the tenant worked on the land to make money for rent.(fn9) Generally, both landlord and tenant had knowledge of the land's condition(fn10) and the tenant had the skills to make needed repairs,(fn11) particularly because buildings were constructed simply.(fn12) At that time leases were not standardized forms, but probably manifested the actual expectations of the parties.(fn13)

The conditions that justified the early landlord-tenant law, however, no longer exist. Today leases are used primarily in urban settings.(fn14) Few tenants obtain rent by working the land; they do not lease land. Rather they bargain for living space,(fn15) usually in multi-unit apartment complexes.(fn16) Typically, the landlord has more knowledge of the premise's condition than the tenant; any violations of housing or building codes are reported to the landlord.(fn17) Today's city dweller is unlikely to possess the requisite skills or financial resources to make repairs in modern apartment buildings.(fn18) Moreover repairs in multiple unit buildings frequently require access to areas in control of other tenants or the landlord.(fn19) Finally, tight housing markets, common in urban areas, leave the tenant with little bargaining leverage;(fn20) he needs a home and has few choices. Standardized form leases predominate, rendering unequal the bargaining positions of landlord and tenant.(fn21) Yet, as cities grew the courts continued to apply the common law caveat emptor notion that developed in an agrarian culture.(fn22) More recently, legislative bodies and courts realized that the economic and social conditions forming the basis of the early common law no longer applied in an urban setting and that application of those principles caused substandard housing conditions.(fn23) This recognition led to the development of housing codes(fn24) and the implied warranty of habitabil-ity,(fn25) designed to secure safe and sanitary housing conditions. Housing codes and warranties of habitability were of little value, however, if landlords could retaliate against tenants by evicting them for complaining of housing violations.

The retaliatory eviction defense developed to ensure that the decisions of modern legislative bodies and courts to promote habitable rental housing conditions, through housing codes and implied warranties of habitability, were not rendered meaningless by landlord intimidation.(fn26) Traditional property law allowed a landlord to evict a periodic tenant if proper notice was given regardless of motivation.(fn27) Eviction at will under common law, where the tenant presumably had the ability to make repairs himself and no legal right to habitable housing, did not foster unsafe and unsanitary housing. But once the legal right to habitable housing was established, tenants, to obtain safe and sanitary housing conditions, needed protection from eviction for reporting housing law violations. The retaliatory eviction defense prevents a tenant's eviction for exercising his rights, thus providing the necessary protection. The defense is needed t to effectuate the policy promoting habitable housing underlying the housing codes and warranty of habitability.

The Washington legislature, recognizing that the basic principles of an agrarian society no longer applied(fn28) to contemporary landlord-tenant relationships, adopted a comprehensive statutory scheme,(fn29) the Washington State Residential Landlord-Tenant Act, to secure habitable rental housing. To make those provisions designed to secure habitable housing meaningful, the legislature recognized the necessity of preventing retaliatory action by landlords. The 1973 Act contains provisions expressly recognizing "the public policy of this state in favor of the ensuring safe, and sanitary housing"(fn30) and that are designed to assure habitable rental premises.(fn31) Although the Act excludes some classifications of tenants from coverage, it protects periodic tenants.(fn32) The Act gives tenants major responsibility for notifying authorities and landlords of conditions violating the statutory provisions.(fn33) To protect tenants who assert their statutory rights in order to aid the state's enforcement of the policy of providing safe and sanitary housing conditions, the Act also prohibits landlords from taking retaliatory action against tenants.(fn34)

Recently, a Washington Court of Appeals evaluated the retaliatory eviction defense's availability to periodic tenants. In Stephanus v. Anderson (fn35) periodic tenants sought to assert a retaliatory eviction defense under the Landlord-Tenant Act when their tenancies were terminated. Two month-to-month tenants in a large Seattle apartment building received notice, in late 1978, of a rent increase.(fn36) Informed by the State Attorney General's Office that the notice of the rent increase may have been inadequate, the two tenants organized a tenants' meeting.(fn37) Subsequently, the landlord gave the tenants the statutory twenty days termination notice in accordance with section 59.18.200 of the Act.(fn38) The tenants refused to leave and the landlord brought an unlawful detainer action.(fn39) The tenants asserted as an affirmative defense that the eviction was retaliatory under Wash. Rev. Code section 59.18.240, the retaliatory action section of the Landlord-Tenant Act. The trial court, however, struck the defense.(fn40) The court of appeals affirmed, concluding that "the plain words of RCW 59.18.240 state that a tenancy terminated pursuant to RCW 59.18.200(fn41) is not subject to the prohibition against retaliatory eviction."(fn42) The Stephanus decision indicates that, regardless of the motivation for termination, if the landlord provides proper notice, a periodic tenant cannot use the retaliatory eviction defense. Assuming landlords will give proper statutory notice, Stephanus in essence eliminates the retaliatory eviction defense for periodic tenants regardless of the landlord's motive for termination. Thus, even if a tenant exercises his rights under the Act to complain of unsafe housing conditions his tenancy can be terminated, thus necessitating a change of residence.

The Stephanus court's interpretation of the retaliatory action section, denying periodic tenants the retaliatory eviction defense, thus deters periodic tenants from exercising their statutory rights. Changing living quarters entails significant costs including moving expenses, utility deposits, connection charges, and rental security deposits. Surely, in some cases, these costs would be prohibitive. The Landlord-Tenant Act gives landlords fourteen days after vacation of the premises to return rental deposits.(fn43) Yet, rental security deposits are required before moving into a new rental unit. A tenant needs a substantial cash supply to change living quarters. In addition, moving involves time and, perhaps, changes in personal relationships. The combined burdens of these economic and...