Landis & Landis Construction, LLC entered into a residential lease agreement with Nation to house a construction crew. Upon moving into the leased house, crew members smelled a “strong ‘dead animal’ odor in the house” and found rodent feces, poison, and torn food wrappers in the house and on the leased premises. Concerned about a rodent infestation, the crew members vacated the house. Landis then sued Nation to recover prepaid rent.

The trial court dismissed Landis’s claims on summary judgment. Landis appealed, arguing that Nation had breached an implied warranty of habitability. The Court of Appeals reversed and clarified three points of law germane to landlord-tenant relations: (1) a common law claim for breach of the implied warranty of habitability is separate from, and was not superseded by, statutory remedies created by the Residential Landlord Tenant Act (RLTA), RCW 59.18; (2) notice and opportunity to cure is not a condition precedent to a common-law habitability claim; and (3) rodent infestation is a potential safety hazard giving rise to a habitability claim.

RLTA’s Effect on Common Law Claim for Breach of Implied Warranty of Habitability

  • Even though the RLTA provides a statutory remedy for a landlord’s failure to maintain a habitable residence (see RCW 59.18.060, .060(4), .120, .090), the RLTA did not supersede common law remedies available to tenants. Rather, under the RLTA’s plain language tenants may pursue statutory remedies “in addition to pursuit of remedies otherwise provided . . . by law.” RCW 59.18.070 (emphasis added).
  • Shortly after the RLTA took effect, the Washington Supreme Court recognized the existence of the implied warranty of habitability (see Foisy v. Wyman, 83 Wn.2d 22, 28, 515 P.2d 160 (1973)), and the Court of Appeals later observed that nothing indicated that the Legislature intended for the RLTA “to restrict application of the implied warranty of habitability” (Aspon v. Loomis, 62 WN. App. 818, 825, 816 P.2d 751 (1991)).

Notice and Opportunity to Cure Is Not a Condition Precedent to a Habitability Claim

  • Where a defective condition constituting a material breach of the lease agreement is patent at the move-in date, a tenant need not give a landlord notice and opportunity to cure before availing himself or herself of the remedy of rescission.

Rodents as Safety Hazards

  • The Court clarified that the standard for a common law habitability claim is whether the complained-of condition presents a “‘substantial risk of future danger’” (quoting Westlake View Condo. Ass’n v. Sixth Ave. View Partners, LLC , 146 Wn. App. 760, 771–72, 193 P.3d 161 (2008) (emphasis added); see also Atherton Condominium Apartment-Owners Ass’n Board of Directors v. Blume Dev. Co. , 115 Wn.2d 506, 519–22, 799 P.2d 250 (1990)), not whether the condition at issue rendered a dwelling  actually unfit to be lived in, which standard the court previously referenced in the context of a statutory habitability claim. See Wright v. Miller , 93 Wn. App. 189, 200-01, 963 P.2d 934 (1998).
  • With that clarification, the Court observed that a rodent infestation indisputably constitutes a safety hazard risk supporting a common law habitability claim.

Applying those standards to the evidence submitted to the trial court, the Court concluded that Landis had raised multiple triable issues of fact. It declined as premature Landis’s request for a contractual award of prevailing party attorney fees because no party had yet prevailed.

Read the October 8, 2012 opinion