OH, RATS!  MY TENANT MOVED OUT CLAIMING RODENT INFESTATION AND DID NOT GIVE ME A CHANCE TO FIX THE PROBLEM.  WHAT CAN I DO?

            As a recent Court of Appeals case has stated, the landlord in such a situation has no right to keep prepaid rent.  Residential rental property is subject to the Residential Landlord Tenant Act, and the landlord in this case argued that the tenant moved out before giving the landlord a chance to eradicate a rodent infestation, thus losing the legal right to move out and receive a refund of prepaid rent under the Act. 

            The facts were that a construction company needed housing for its workers at a job site in Bothell, and entered into a written short term lease with the landlord of a single family residence there.  The landlord had rented the house out for about eleven years.

            The construction company representative and the landlord did the usual pre tenancy checklist and walk through of the house and then the lease was signed, about one and one half months’ worth of rent was paid and the customary deposits were deposited.  When the construction crew began to move into the house, they noticed a “strong dead animal odor” in the house, and one crew member went out and bought an air freshener to try to mask the smell.  The smell persisted, and the crew found physical evidence of rodents including droppings and food wrappers that had been torn into tiny pieces.  The construction company’s employees immediately moved out and the company notified the landlord of this fact and requested a refund.  The landlord admitted that there had been rats in the house due to a previous tenant’s failure to keep foods secured but the landlord believed she had corrected the problem.  The landlord returned the deposits but refused to refund the rent based on a provision in the lease that stated that the tenant who moved out prematurely was responsible for rent until a replacement tenant moved in.

            The construction company sued for the refund and the superior court ruled for the landlord before trial, dismissing the company’s lawsuit.  The company appealed and the appeals court reversed the superior court on the basis that there is an implied warranty of habitability that applies to residential rental property which is in addition to the protections for tenants in the Residential Landlord Tenant Act.

            What is the implied warranty of habitability and how is it different from the provisions of the Residential Landlord Tenant Act?   The Landlord Tenant Act requires a landlord to maintain premises that are fit for human habitation and provides tenants a way of compelling landlords to remedy unsafe conditions and sets time limits for compliance.  Under the Landlord Tenant Act, only after notice to the landlord of an unsafe condition and failure by the landlord to remedy the condition in the time prescribed by the Act, can the tenant terminate the tenancy. 

The common law, which is judge-made law as distinguished from the law created by the Legislature enacting a statute such as the Residential Landlord Tenant Act, contains an implied warranty of habitability that says that by entering into a contract, which is the lease involved, the landlord warranted or promised that the premises would be liveable and that a breach of this warranty by the landlord is a basis for the tenant to rescind or cancel the contract.

            The landlord argued that this common law warranty was superseded by the Residential Landlord Tenant Act, but the court of appeals disagreed, pointing out that the Act specifically says it is in addition to protections given in the common law.  The court also rejected the landlord’s argument that she should have been given notice and a chance to cure the problem before the tenant moved out.  The court pointed out that the warranty provides a contractual right to rescind based on the facts at the time the lease was signed.  The court also rejected the landlord’s claim that the tenant should have to prove that the house was actually unsafe to live in before invoking the implied warranty of habitability.  The court noted that rodents are a potential safety hazard and that no more needs to be shown by a tenant who invokes the implied warranty of habitability.

            This case is instructive for landlords on the diligence that is required for them to retain rents under a lease where an actual or potentially unsafe condition exists in rental residential property.  Other potential safety hazards can exist in addition to pests in residential property, such as mold. 

            The preceding is intended as instruction and education and should not be construed as legal advice.