Two Warranties of Habitability

Washington tenants now have not just one, but two warranties of habitability. This is the upshot of a recently published Court of Appeals decision.[1]


Since 1973 there has been an unresolved issue of whether there is one implied warranty defined in the Residential Landlord-Tenant Act, or also another created by case law. In 1973 the Washington Supreme Court held in Foisy v. Wyman that residential tenancies have an implied warranty of habitability.[2]  Also in 1973 the legislature passed into law the Residential Landlord-Tenant Act (RLTA).[3]


These two developments in Washington landlord-tenant law occurred independently. The Foisy case originated before the RLTA went into effect – and therefore the RLTA did not apply. An unresolved issue was whether the Foisy implied warranty was separate and independent of the RLTA, or the RLTA superseded or modified the Foisy implied warranty of habitability.


The RLTA requires complaints about habitability to be in writing, limits habitability to an enumerated list of items, and limits the amount a tenant may deduct from rent in a 12-month period. It also gives the landlord the obligation to cure the defect and allows the tenant remedies such as repairing and deducting from the rent only if the landlord fails to cure.


Now Washington landlords may not have an opportunity to cure. The Washington Court of Appeals held that the tenants have the right to simply vacate – without notice and an opportunity to cure – stating that “[t]he decision by [the tenant] to move out immediately without giving [the landlord] a chance to address the problem was not fatal to the claim.”


Until now many – if not most – trial courts have held that the tenant is not entitled to remedies such as off-sets in rent unless the tenant follows the requirements of the RLTA – such as written notice, limits on the amounts deducted, and so forth. Now, tenants may not have to give notice and an opportunity to cure at all. So, arguments landlords have successfully made in court for decades may no longer carry the day.


There may be arguments in given case – depending on the facts and circumstances – that limit the application of the new Landis decision. If you have questions about the warranty of habitability in Washington residential tenancies you should consult with an attorney, particularly as the law has just seismically changed.

[1] Landis & Landis Construction v. Nations, No. 67216-9-I (Published October 8, 2012).

[2] Foisy v. Wyman, 83 Wn.2d 22, 515 P.2d 160 (1973).

[3] RCW 59.18.010 et. seq.