Washington Landlord Tenant Law

Archive for August, 2007

Most residential lease forms have a section regarding utilities. Many such provisions read that the tenant will pay utilities except those boxes the parties chose to check. Usually there is a catch all “other” box and blank the parties can fill in. Often if the landlord intends the tenant to pay all utilities the landlord will check the box and write in the blank “all utilities” or something of similar ilk.

Often if the landlord intends the tenant to pay all utilities the landlord will check the box and write in the blank “all utilities” or something of similar ilk. Taken together the statement then reads essentially “Tenant will pay the utilities with the exception of all the utilities”. This double negative could spell trouble for the landlord.

 

Taken together the statement then reads essentially “Tenant will pay the utilities with the exception of all the utilities”. This double negative could spell trouble for the landlord, especially if attempting an eviction for failure to pay utilities. Also when evicting for failure to pay rent the tenant may argue that he has overpaid for utilities and is entitled to a setoff.

Ambiguities in leases will be construed against the landlord. Leases are contracts as well as conveyances, and the rules of construction which apply to contracts also apply to them. Watkins v. Restorative Care Center, 66 Wn. App. 178, 831 P.2d 1085 (1992), Seattle-First Nat’l Bank v. Westlake Park Assocs., 42 Wn. App. 269, 272, 711 P.2d 361 (1985), review denied, 105 Wn.2d 1015 (1986).

In construing a contract, “[i]t is the duty of the court to declare the meaning of what is written, and not what was intended to be written.” Berg v. Hudesman, 115 Wn.2d 657, 669, 801 P.2d 222 (1990) (quoting J.W. Seavey Hop Corp. v. Pollock, 20 Wn.2d 337, 348-49, 147 P.2d 310 (1944)). “[U]nilateral and subjective beliefs about the impact of a written contract do not constitute evidence of the parties’ intent.” Olympia Police Guild v. Olympia, 60 Wn. App. 556, 559, 805 P.2d 245 (1991) (citing Dwelley v. Chesterfield, 88 Wn.2d 331, 335, 560 P.2d 353 (1977)).

Contract language is ambiguous if reasonably susceptible to two or more interpretations. Berg v. Hudesman, 115 Wn.2d 657, 669, 801 P.2d 222 (1990), Riss v. Angel, 554 80 Wn. App. 553, 912 P.2d 1028 (1996). Appellate courts construe ambiguities against the drafter of a document.

Thus, since “the tenant pay all utilities except all utilities” can be taken to mean that the tenant pays no utilities and the landlord most likely chose the lease form and completed it the tenant has a pretty good argument that the tenant pays no utilities.

If the tenant has been paying utilities then the landlord could argue that the course of performance by the parties indicates the parties’ intention that the tenant is responsible for utilities. “In discerning the parties’ intent, subsequent conduct of the contracting parties may be of aid….” Berg v. Hudesman, 115 Wn.2d 657, 669, 801 P.2d 222 (1990).

It is best to simply avoid the issue altogether. The landlord could state in the “other” blank that the tenant pays all utilities. Redundant, but not ambiguous. Probably better still, simply line out the word “except” and everything following it and have the tenant initial the change.

Scott Eller

Washington Landlord-Tenant Attorney

TM

Both state and federal laws protect active duty military personnel from civil liability.  Soldiers and sailors laws were enacted during the Civil War and World War I.  Another set of legislation was passed during World War II.  This law was amended in 2003 by the Service Members Civil Relief Act (SCRA).  A similar state statute, The Washington Service Members Civil Relief Act (WSCRA), went into effect in 2005. The Washington Residential Landlord Tenant Act (RTLA) has provisions that apply specifically to tenants who are in military service.    

These laws impact landlord-tenant law in several important respects.  The laws allow active military members to terminate tenancies, provide procedurals rights regarding default in all civil litigation, and certain rights pertaining to eviction specifically.   

Termination of tenancies.   

Under the federal Service Members Civil Relief Act (SCRA) as amended in 2003 leases entered into before the service member entered military duty may be terminated by the service member by delivering written notice to the lessor.  Delivery of the notice may be by

Making or using a false affidavit is a misdemeanor under federal law and a Class C felony under Washington state law.   

While both statutes allow the plaintiff to file an affidavit demonstrating lack of knowledge as to military status, in some venues the courts are reluctant to allow a default without proof of non-military status.  Some ex parte commissioners require a print out from the Department of Defense website accompany the motion for default.       

Under SCRA if the defendant is on active duty the court must enter a stay of at least 90 days if the court determines either that there is a meritorious defense and the defense cannot be presented in the absence of the defendant or that after diligence defense counsel is unable to contact the defendant.   Under the same circumstances under the WSCRA the court is to grant a stay until 180 days after termination of or release from military service.     

Under both SCRA and WSCRA the military member may appear and request a stay.    In addition under both SCRA and WSCRA no default may be taken if the defendant is on active duty until an attorney is appointed.  No provisions are made as to how the court appointed attorney is to be paid or by whom.  It is worth noting that in situations where a guardian is appointed for an incapacitated person the landlord should expect to foot the bill.   

Under SCRA the court has the discretion to require the plaintiff to post a bond if the military status of the defendant cannot be determined.   Under both SCRA and WSCRA a service member may set aside default judgments and court orders if the ability of the service member to comply was materially effected by the military service.   Under SCRA this applies to actions commenced during or within 90 days after active duty.  The WSCRA provision further requires a meritorious defense to reopen an action and applies to default judgments entered while the service member was on active duty or within 180 thereafter.   

Protection from eviction.

The SCRA has a section that specifically applies to evictions.  The section applies to residential tenancies where the rent does not exceed an amount annually adjusted for housing price inflation.  The figure was $2,400 when SCRA was enacted in 2003. 

Under this provision if the service member’s ability to pay rent is materially effected by military service the court must stay the proceedings for 90 days or a longer or shorter period as the court determines appropriate or adjust the obligations under the lease to preserve the interests of all parties.  If a stay is granted under this section of the statute the court may grant the landlord such relief as equity may require.   There is no comparable provision under WSCRA.   

Navigating the civil relief statutes is not easy.  If you are a landlord or tenant in a situation where these laws may apply you should consult an attorney.  Nothing in this article or this website is a substitute for legal advice.  For advice about your circumstance consult an attorney.