Property Management Q&A…. repairs by your tenant?

p r o p e r t y  m a n a g e m e n t  q & a

This question seems to arise more and more frequently and came from the Washington Realtor News May/June 2009.

 

Q: A tenant gave notice on 2/25 to repair a leaking toilet, saying that the handle was broken and it needed internal repairs. I know that I had three days to perform this kind of repair, but I didn’t respond in time. Although the initial repair request did not include an estimate, she went on to request that a plumber replace both toilets in the house. I estimate the repair she original called about would cost $100 - $200, but replacing both toilets was $868. She has now withheld this amount from her March rent.

 

I issued her a three day notice. She has now hired and attorney. I don’t want to escalate this into an expensive legal battle, but I need to know where I stand legally, before I decide what to do.

 

A: When a question like this arises, I follow this “checklist” to analyze the situation.

 

1. Does a repair duty exist on the part of the landlord? The only relevant duties are in RCW 59.18.060, in this case subsection (7) which states: “[the landlord shall]… (7) Maintain all electrical, plumbing, heating, and other facilities and appliances supplied by him in reasonable good working order;” Thus, as long as the toilet was in “reasonably good working order”, you don’t have a duty to perform a repair. The statute does not require that a device be in “perfect working order” or some such thing. Obviously, there is a lot of gray area here, but it should be noted that an older but still functional piece of equipment may not necessarily require repair.

 

2. Did the tenant cause the problem? Please note the final unnumbered paragraph of RCW 59.18.060, which provides, “No duty shall devolve upon the landlord to repair a defective condition under this section, nor shall any defense or remedy be available to the tenant, his family, invitee, or other person action under his control.” This doesn’t appear to be an issue in your case, but it is something to keep in mind for the future.

 

3. Did the tenant wait the correct period of time? Most tenants think plumbing issues are three day notice items under RCW 59.18.070(2). It is worth carefully reviewing that statute, which states in relevant part, “[the landlord shall commence remedial action within] ….(2) Not more than seventy-two hours, where the defective condition deprives the tenant of the use of a refrigerator, range and oven, or a major plumbing fixture supplied by the landlord;” So I pose the question as to whether or not the tenant was “deprived of the use of the fixture.” It is not clear whether the toilet was still operable. If so, there is an argument that the tenant did not wait the correct period of time before acting. Arguably, as long as it always functioned, even if not perfectly, the 10 day notice period should apply under RCW 59.18.070(3).

 

4. When can the tenant engage in “repair and deduct”? RCW 59.18.080 states, “the tenant shall be current in the payment of rent including all utilities which the tenant has agreed in the rental agreement to pay before exercising any of the remedies accorded him under the provisions of this chapter.” Again, this doesn’t appear to be an issue in your case, but it is something to keep in mind for the future.

 

5. Did the tenant provide an estimate of the cost? This is required by RCW 59.18.100. The estimate can be (and in fact, usually is) provided at the same time as the RCW 59.18.070 notice. “Such estimate may be submitted to the landlord at the same time as notice is given pursuant to RCW 59.18.070.” There is no right for the tenant to perform the repairs (or have them performed by contractors) without first providing an estimate of the costs. The statute is silent on what happens if the estimate is inaccurate.

 

6. How long does the landlord have to review the estimate (if one is provided)? The statute doesn’t expressly state a time period. Presumably, the landlord has time to review the estimate and decide what to do. I operate under the assumption that the landlord has the same time period permitted by RCW 59.18.070 to review an estimate. I do, however, strongly recommend initiating a dialog with the tenant, the sooner the better. If you intend to perform the repairs yourself, you want to make sure the “train doesn’t leave the station without you.”

 

7. Can I evict the tenant for wrongfully withholding rent? Yes, you can. However, I also encourage you to read RCW 59.18.080, which states, “PROVIDED FURTHER, that this section shall not be construed as limiting the tenant’s right in an unlawful detainer proceeding to raise the defense that there is no rent due and owing.” You are right to be cautious about fighting over whether the tenant properly exercised their “repair and deduct” rights. I could imagine a judge being very sympathetic to the tenant and waiving some provisions of the law, particularly if you never replied to the tenant before they went ahead and paid to have the repairs performed (which likely, may be beneficial to the property).

 

I have seen judges ignore the requirement that a tenant provide an estimate before withholding rent. You want to be on 100% solid ground, before you pursue this in court.

 

If you know who the tenant’s plumber was (if not, ask for a copy of the invoice), try to find out the exact condition of the toilet(s). Where they non-functional or just in need of a repair to enhance performance or improve efficiency? The less immediate the need for a repair, the stronger your position would be to pursue these monies from the tenant.

 

Finally, eviction for nonpayment of rent is not your only remedy. You could also inform the tenant that you refute their right to deduct from the rend, that you consider the rend remaining due and owning, and that you intend to deduct it from their deposit on move-out.

 

Christopher T. Benis an attorney with Harrison, Benis, and Spence, LLP, with offices in Seattle. The information contained herein is not legal advice. You are encouraged to consult with your attorney before relying on anything contained herein.