Landis & Landis Construction, LLC v. Nicola Nationa d/b/a Nation Management

A construction crew encountered evidence of rodents the



day they began moving into leased housing. They left without waiting for the



problem to be resolved, and the construction company sued the landlord to



recover prepaid rents. A rodent infestation evident at move-in represents an



actionable breach of the implied warranty of habitability, justifying rescission of



the rental agreement and immediate vacation of the premises. Because the



tenant presented sufficient evidence to prove the presence of an actual or



potential safety hazard, we reverse the order granting summary judgment to the



landlord.



FACTS



No. 67216-9-I/2



Nicola Nation owns a house in Bothell. She lived in it herself for three



years before she began renting it out in 1998. In November 2009, Nation was



contacted by a representative of Landis & Landis Construction. Landis needed



a house for a construction crew to live in for a few months. Nation agreed to rent



the house on a short-term basis for $1,700 per month. On November 19, 2009,



Landis foreman Cory Moore inspected the house with Nation and found it



suitable. Moore and Nation completed and signed a move-in checklist. Nation



gave Moore the keys. A lease was signed. Landis paid Nation $2,437 in rent for



the remainder of November and all of December, as well as a security deposit



and a utility deposit.



On November 23, 2009, the Landis crew began moving into the house.



According to statements by Landis personnel, the crew smelled a strong "dead



animal" odor in the house. One crew member went out and bought an air



freshener to mask the odor, but the smell persisted. As the crew unpacked their



belongings, they found rodent feces and poison in the kitchen and pantry. In the



backyard and under the deck, they found food wrappers that had been ripped



into tiny pieces. Believing the house was infested by rodents, the crew left.



Moore immediately reported the problem to Nation, told her that Landis



could not expose its employees to the danger of a rodent infestation, and asked



for a refund. According to Moore, Nation admitted there had previously been



rats in the house due to a previous renter's food garbage, but she said she



2



No. 67216-9-I/3



believed she had eradicated the problem.



Nation went to the house to inspect for rodents and put out poison and



traps. According to Nation, she did not observe any evidence of rodents before



the Landis crew moved in or after they departed.



Nation refunded the deposits, but she refused to return the prepaid rent



based on a lease provision that made Landis responsible, in the event of an



early departure, for paying rent until another tenant moved in. A new tenant



moved in on January 1, 2010.



Landis sued for return of rent. The trial court granted Nation's motion for



summary judgment dismissal and awarded attorney fees. Landis appeals,



arguing that Nation breached an implied warranty of habitability contained in the



rental agreement.



THE IMPLIED WARRANTY OF HABITABILITY

IS INDEPENDENT OF THE RESIDENTIAL LANDLORD TENANT ACT OF 1973



Nation contends there is no implied warranty of habitability in rental



housing independent of the Residential Landlord Tenant Act, chapter 59.18 RCW.



The act went into effect in July 1973. Laws of 1973, 1st Ex. Sess., ch.



207. The act imposes on landlords a general duty to "at all times during the



tenancy keep the premises fit for human habitation." RCW 59.18.060. It affords



tenants a way of compelling landlords to remedy certain unsafe conditions in



leased residential premises and it specifically mentions the landlord's duty to



provide a reasonable program for the

3



No. 67216-9-I/4



control of infestation by pests. RCW 59.18.060(4). Upon notice, the landlord is



obliged to take swift action -- between 1 and 10 days, based on the type of risk to



the tenant -- to remedy the defective condition. RCW 59.18.070.



The landlord can take even longer than 10 days if the defect is "so



substantial that it is unfeasible for the landlord to remedy the defect within the



time allotted." RCW 59.18.120. In the latter case, the tenancy may be



terminated by court order. RCW 59.18.120. In all other cases, tenants pursuing



action within the statutory scheme remain in the tenancy while the landlord



carries out the needed repairs. If the landlord fails to carry out repairs within the



allotted timeframe, the tenant then has the option to terminate the rental



agreement and "quit the premises." RCW 59.18.090(1).



Nation contends that Landis had to proceed under the Residential



Landlord Tenant Act and give her notice and an opportunity to eliminate the



rodents before suing for breach of contract. She argues that the Residential



Landlord Tenant Act superseded common law remedies.



The act did not supersede common law remedies. By its plain language,



the act preserves other tenant remedies against a landlord. The statutory notice



and remedy process is provided to the tenant "in addition to pursuit of remedies



otherwise provided him or her by law." RCW 59.18.070. A tenant may premise



an action against a landlord under any of three legal theories: the act, the rental



agreement, or the common law. Dexheimer v. CDS, Inc., 104 Wn. App. 464,



4



No. 67216-9-I/5



467, 470, 17 P.3d 641 (2001).



One common law theory available to a tenant is the implied warranty of



habitability. Our Supreme Court first recognized this theory in October 1973,



three months after the Residential Landlord Tenant Act went into effect, in Foisy



v. Wyman, 83 Wn.2d 22, 515 P.2d 160 (1973). In Foisy, the tenant argued that



the landlord's violation of an implied warranty of habitability excused his failure



to pay rent and provided him an affirmative defense to the landlord's unlawful



detainer action. The court agreed, reasoning that any "realistic analysis of the



lessor-lessee or landlord-tenant situation leads to the conclusion that the



tenant's promise to pay rent is in exchange for the landlord's promise to provide



a liveable dwelling." Foisy, 83 Wn.2d at 27. The court held that "in all contracts



for the renting of premises, oral or written, there is an implied warranty of



habitability," and that breach of this implied warranty could be employed by the



tenant as a defense to unlawful detainer. Foisy, 83 Wn.2d at 28. The court's



belief that "public policy demands such a result" was "reinforced" by the new



statute. Foisy, 83 Wn.2d at 28. Because the act and the Foisy decision



developed independently, "we cannot presume that the Legislature intended the



act to restrict application of the implied warranty of habitability." Aspon v.



Loomis, 62 Wn. App. 818, 825, 816 P.2d 751 (1991), review denied, 118 Wn.2d



1015 (1992).



Nation contends that the implied warranty of habitability is only available



in disputes that arose before the

5



No. 67216-9-I/6



Residential Landlord Tenant Act went into effect and also that the implied



warranty is limited to the context of unlawful detainer. Nothing in Foisy indicates



such limitations.



Nation contends the act was intended to modify and supersede the



implied warranty of habitability found in Foisy. Because the act preceded Foisy,



this contention is inaccurate. Nation relies on an opinion that states,



erroneously, that the implied warranty of habitability governed Washington



tenancies even prior to the adoption of the act and that the act "codified" the



implied warranty of habitability. Howard v. Horn, 61 Wn. App. 520, 524, 810



P.2d 1387 (1991). The erroneous chronology in Howard originated in a



misleading statement in an earlier case, where the court implied that the



legislature was following the "lead" of Foisy when it enacted the Residential



Landlord Tenant Act. Lincoln v. Farnkoff, 26 Wn. App. 717, 719-20, 613 P.3d



1212 (1980). The legislature may have been following a general trend in the



law, but obviously the legislature was not following the lead of Foisy, which had



not yet been decided.



In short, the implied warranty of habitability recognized in Foisy has not



been superseded by statute. The implied warranty of habitability recognized in



Foisy is available to a tenant as a basis for legal action against a landlord under



the common law, independent of the Residential Landlord Tenant Act.



NOTICE AND OPPORTUNITY TO CURE

6



No. 67216-9-I/7



Nation next contends that a defective condition cannot be an actionable



breach of the implied warranty of habitability until the landlord receives notice of



the alleged defect and fails to remedy it after a reasonable time. Nation



supports this argument by citing Franklin v. Fischer, 34 Wn.2d 342, 348-49, 208



P.2d 902 (1949), a case from the era of caveat emptor.



In Franklin, lessees of a commercial property claimed the landlord had



breached an express covenant to keep the water supply and roof in repair.



Their claims for damages were denied because the lessors made the repairs as



rapidly as possible after being notified of the problem. Franklin, 34 Wn.2d at



348-39. Franklin, however, does not apply because it pertains to a commercial



lease and, as well, because it predates Foisy.



A treatise cited by Nation addresses in general terms what amounts to a



breach of the implied warranty. Nation relies on the author's statement, "it would



seem that the landlord should not be deemed to be in breach of his duty unless



he fails to make the necessary repairs within a reasonable time after receiving



notice . . ." William B. Stoebuck & Dale A. Whitman, The Law of Property §



6.38, at 307 (3d ed. 2000).



But Nation omits the remainder of the sentence, which reads " -- at least



where the defective condition(s) only arise, or become patent, after the tenancy



begins." Here, the evidence of rodent infestation was patent at move-in. Thus



Professor Stoebuck's statement does not

7



No. 67216-9-I/8



mean that Landis had to wait upon Nation's efforts at extermination in order to



have an actionable claim. There was no evidence that the presence of rodents



was due to conduct by the Landis crew.



The Supreme Court of Hawaii has persuasively rejected the argument that



a new tenant who encounters a rodent infestation on the first day of the tenancy



must endure the infestation while waiting for the rodents to be eliminated:



While it is not clear where the rats came from, assuming that they

did originate from outside of the premises, the defendant had it

within her power to keep them out by proper and timely screening

and extermination procedures. Indeed this was done before the

next tenant moved in. But to begin such procedures after the

plaintiff had occupied the dwelling and to expect that he have the

requisite patience and fortitude in the face of trial and error

methods of extermination was too much to ask.



Lemle v. Breeden, 51 Haw. 426, 462 P.2d 470, 475 (1969). Consistent with



Foisy, Lemle adopted the view that "a lease is essentially a contractual



relationship with an implied warranty of habitability and fitness," so that a tenant



may resort to "basic contract remedies of damages, reformation, and rescission"



instead of being constrained by rigid rules originating in the law of property.



Lemle, 462 P.2d at 475.



Nation notes that in Lemle, the tenants stayed in the rat-infested rental for



three days and vacated the premises only after the landlord's early attempts to



get rid of the rats failed. But the Lemle court did not hold that the tenants' right



to relief depended upon giving the landlord time to fix the problem. Rather, the



court said that each case "must turn on its



8



No. 67216-9-I/9



own facts." Lemle, 462 P.2d at 476. Taking into consideration "the seriousness



of the claimed defect and the length of time for which it persists" as relevant



factors, the court concluded the evidence was sufficient to support judgment for



the tenants. Lemle, 462 P.2d at 476.



Similarly here, we conclude there is sufficient evidence for a trier of fact to



find a material breach of the implied warranty of habitability, justifying rescission



of the rental agreement and immediate vacation of the premises. The decision



by Landis to move out immediately without giving Nation a chance to address



the problem was not fatal to the claim.



RODENTS ARE A POTENTIAL SAFETY HAZARD



Nation contends the appropriate standard of habitability is whether the



dwelling is "actually unfit to be lived in," as stated by this court in Wright v.



Miller, 93 Wn. App. 189, 200-01, 963 P.2d 934 (1998) (defective handrail that



did not run the full length of stairwell did not render the dwelling unfit to be lived



in), review denied, 138 Wn.2d 1017 (1999). Landis contends the standard is



less imposing: whether the condition creates an "actual or potential safety



hazard" to the occupants. Lian v. Stalick, 106 Wn. App. 811, 818, 25 P.3d 467



(2001), citing Atherton Condo. Apartment-Owners Ass'n Bd. of Dirs. v. Blume



Dev. Co.,115 Wn.2d 506, 519-22, 799 P.2d 250 (1990).



Landis is correct; the Atherton standard is the current rule. See Westlake



View Condo. Ass'n v. Sixth Ave. View

9



No. 67216-9-I/10



Partners, LLC, 146 Wn. App. 760, 771-72, 193 P.3d 161 (2008). Under



Atherton, "if the violations present a substantial risk of future danger, the implied



warranty of habitability is a viable claim." Westlake, 146 Wn. App. at 771-72.



The absence in Wright of any reference to the Atherton standard was likely due



to the fact that the counterclaim at issue in Wright was "based on an alleged



breach of the statutory warranty of habitability, not on the rental agreement or



the common law." Wright, 93 Wn. App. at 200. The claim in Atherton was



based on the common law implied warranty of habitability.



There is no doubt that a rodent infestation can create an actual or



potential safety hazard. See Apostle v. City of Seattle, 70 Wn.2d 59, 65, 422



P.2d 289 (1966) (referring to the "ever-present danger of disease transmission"

that accompanies a rodent infestation).1



EXISTENCE OF GENUINE DISPUTE



Nation contends the evidence before the trial court was not sufficient to



take the case to a jury. She points out that the move-in checklist signed by



Moore, the Landis foreman, does not mention rodent issues.



The checklist is not dispositive, particularly in light of Moore's declaration



1 Nation has moved under RAP 9.12 to strike four Web articles about rodent

infestation cited in the appellant's reply brief and has asked to have sanctions imposed

under RAP 10.7. We have not considered the articles and therefore do not address

the motion to strike. We deny the request for sanctions.



10



No. 67216-9-I/11



that the day he inspected the house it "smelled strongly of cleaning supplies,"



which could have masked a rodent odor. And a clean inspection on any given



day has limited value in proving the nonexistence of an infestation where there is



other substantial evidence of rodent activity.



To show that there was no significant rodent problem, Nation relies



primarily on her own self-serving declaration. She says she and her husband



lived in the house for 3 years in the 1990s without any rodent problems. She



received only a single complaint regarding rodents in more than 10 years of



renting the house to tenants. That complaint, in December 2008, reported



rodents entering the house through the laundry vent in the pantry. She swiftly



addressed the problem and heard no further complaints. She and her husband



observed no rodent problems when they cleaned and painted the house in



October and November 2009 before the Landis crew moved in. After Landis



complained, they placed traps and poison, which were undisturbed. And her



current tenant has made no rodent complaints.



On review of summary judgment we take the facts and reasonable



inferences from those facts in the light most favorable to the nonmoving party.



Michak v. Transnation Title Ins. Co., 148 Wn.2d 788, 794, 64 P.3d 22 (2003).



Facts contradicting Nation's version are found in Moore's declaration. He



described the evidence of infestation on the day the crew attempted to move in.



He described a strong "dead animal" odor emanating from the basement, visible



rodent droppings in the kitchen and

11



No. 67216-9-I/12



pantry, and food wrappers torn into tiny bits in the backyard. Correspondence



between Nation and a Landis executive assistant soon after the crew moved out



corroborates Moore's claim that the crew members left the rental because they



perceived an infestation.



The implied warranty of habitability does not cover "trivial or aesthetic



concerns." Atherton, 115 Wn.2d at 522. It must be left to a trier of fact to



determine whether the rodent problem in Nation's rental house was trivial, as



she contends, or whether it met the Atherton standard of a condition presenting



a substantial risk of future danger. We conclude Landis produced sufficient



evidence to rebut Nation's declaration and defeat her motion for summary



judgment.



The rental agreement provides for an award of attorney fees to the



prevailing party. Reversal of summary judgment also requires reversal of the



trial court's award of attorney fees to Nation. Landis requests an award of



attorney fees for prevailing on this appeal. An award of attorney fees under a



"prevailing party" lease provision is premature until a party prevails on the



merits. Indigo Real Estate Servs., Inc. v. Wadsworth, __ Wn. App. __, 280 P.3d



506, 513 & n.11 (2012). Attorney fees incurred for this appeal shall be included



in any award ultimately made to the party who prevails at trial.



12



No. 67216-9-I/13



See: https://www.courts.wa.gov/opinions/index.cfm?fa=opinions.showOpinion&filename=672169MAJ

Reversed.