August 27th 2007 06:28 pm
Don’t Never Do This
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
TMNo Comments yet »
