Landlord Duty to Deliver Possession

Implied in every lease agreement in Washington is a covenant, or duty of the landlord, to deliver exclusive possession to the tenant.[1] Preventing a tenant from gaining exclusive possession to land to which he or she is entitled under an agreement breaches this covenant and excuses any obligation to pay rent.[2] A tenant waives the right to rescind the lease but may still sue for damages when prevented from gaining possession of the demised premises at the beginning of the term, but waiting and occupying the premises as soon as they are available.[3]

A lessee who is wrongfully refused possession of the leased premises by the lessor is entitled to general damages measured by the difference between the fair rental value of the premises and the rent called for in the lease.[4]

A tenant denied a part of the premises may seek a pro tanto setoff in rent[5] or seek to rescind.[6]

A lessee denied possession because of the presence of a holdover tenant is not limited to an action for damages, but may enforce the lease by an ejectment action.[7] This is contrary to the common law rule which required a tenant to have actual possession to acquire an estate in land and have standing to bring an ejectment action.[8]

[1] Draper Machine Works, Inc. v. Hagberg, 34 Wn. App. 483, 486, 663 P.2d 141 (1983).

[2] Draper Machine Works, Inc. v. Hagberg.

[3] Draper Machine Works, Inc. v. Hagberg.

[4] Ivy v. Argentieri, 2 wash app 999, 471 p2d 122 (1970). Engstrom v. Merriam, 25 Wash. 73, 64 P.914 (1901).

[5] McLoed v. Russell, 59 Wash. 676, 110 P.626 (1910).

[6] Univ. Props., Inc. v. Moss, 63 Wn.2d 619, 388 P.2d 543(1964).

[7] Blanc’s Cafe v. Corey, 110 Wash. 242, 188 P.759 (1920). Duckworth v. Michael, 172 Wash. 234, 19 P.2d 914 (1933).

[8] Blanc’s Cafe at 244.