Rental agreements and leases.

RESIDENTIAL RENTAL AGREEMENTS AND LEASES

THE BASICS

February 4, 2010

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TENANCIES - Definitions

• Tenancy at will: A rental agreement that may be terminated "at the will" of either landlord or tenant. Typically an unwritten agreement may require a brief period of notice of termination.

• Tenancy at sufferance: A tenant who has no right to occupy the premises, but is tolerated by the landlord and may be terminated at the will of the landlord. Payment of rent by the tenant transforms the tenancy into an "at will" tenancy.

• Tenancy for year to year: A written lease with a term of at least one year. If there is no expiration date, the lease may require a notice of termination of one to three months.

• Tenancy from month to month: A written lease with a term of less than one year. Termination typically requires a one month notice.

SOURCE: Robert S. Schonshinski, American Law of Landlord and Tenant, §§2:16-2:19 (1980) and Cumulative Supplement (2008).

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RCW 59.18.060INFORMATION LANDLORD TO PROVIDE TENANT

A summary of Washington State and City of Seattle landlord/tenant regulations MUST be given to all tenants by owners of residential rental property located in Seattle on at least an annual basis.

• Enforcement of this part of the ordinance:• Seattle’s Rental Agreement Regulation Ordinance (Ordinance #116843:

Chapter 7.24 Seattle Municipal Code) • If a landlord does not provide the summary according to the guidelines

above, the tenant is entitled to a $100 penalty from the landlord. If a landlord deliberately fails to give the tenant the summary, the tenant is entitled to $200.

When: At lease signing and annually thereafter.

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Receipts , Condition Move-In Check List, Application Fee

RCW 59.18.063• Tenant entitled to written receipts from landlord

upon request.• Condition Check Move -in List Both tenant & LL must

sign & Tenant to obtain copyRCW 59.18.260• Application or Holding Fee RCW 59.18.253

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ILLEGAL PROVISIONS IN RENTAL AGREEMENTS

• [RCW 59.18.230] These include:• A provision which waives any right given to

tenants by the Landlord-Tenant Act or that surrenders tenants’ right to defend themselves in court against a landlord’s accusations.

• A provision stating the tenant will pay the landlord’s attorney’s fees under any circumstances if a dispute goes to court.

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Month-to-Month Agreement.

• rent usually payable on a monthly basis or other short term period. The agreement itself can be in writing or oral, but if any type of fee or refundable deposit is collected, the agreement must be in writing. [RCW 59.18.260]

• Practice Tip regarding rent payments:• A landlord is not required to accept a partial

payment. [RCW 59.12.030, 59.18.115(5)]

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Proper Notice to Leave for Month-to-Month Agreements.

• When a tenant wants to end a month-to-month rental agreement, written notice must be given to the landlord. RCW 59.18.200 (1)(a)

• The notice must be received at least 20 days before the end of the rental period (the day before the rent is due).

• The day which the notice is delivered does not count. A landlord cannot require a tenant to give more than 20 days notice when moving out.

• When a landlord wants a month-to-month renter to move out, a 20-day notice is required.

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RCW 59.18.200 Month to Month 20 DAY NOTICE TO TERMINATETENANCY (RCW 59.12.030(2))

• Tenancy from month to month or for rental period –

• Termination -- Armed Forces exception• Exclusion of children – RCW 59.18.200(2)(a) • Conversion to condominium – Notice• the landlord shall provide a written notice to a

tenant at least one hundred twenty days before termination of the tenancy, in compliance with RCW 64.34.440(1)

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TENANT FAILS TO GIVE PROPER NOTICE TO LEAVE

• If a tenant moves out without giving proper notice, the law says the tenant is liable for rent for the lesser of: 30 days from the day the next rent is due, or 30 days from the day the landlord learns the tenant has moved out. However, the landlord has a duty to try and find a new renter.

• If the dwelling is rented before the end of the 30 days, the former tenant must pay only until the new tenant begins paying rent.

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CONDO CONVERSIONS

• In the situation of a conversion to a condominium or a change in the policy excluding children the landlord must provide 120 days written notice to the tenant. [RCW 59.18.200]

• RCW 64.34.440Conversion condominiums — Notice — Tenants — Relocation

assistance.

• RCW 59.18.440Relocation assistance for low-income tenants — Certain cities,

towns, counties, municipal corporations authorized to require.

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RENT INCREASES/ MONTH TO MONTH

• The rent can be increased or the rules changed at any time, provided the landlord gives the tenant written notice at least 30 days before the effective date of the rent increase or rule change. [RCW 59.18.140]

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LEASES & REQUIREMENTS

• A lease requires the tenant to stay for a specific amount of time and restricts the landlord’s ability to change the terms of the rental agreement. A lease must be in writing to be valid

• Note: The Statute of Frauds requires "a lease for more than one year must be written.“ RCW 64.04.010 Real Estate Statute of Frauds

12

Entering Into A Lease

• Is there a period in which a tenant or a landlord may rescind a residential lease agreement after entering into it and before the tenant has moved into the property, giving either party the right to cancel their obligations under the lease?

13

LEASES

• During the term of the lease, the rent cannot be raised or the rules changed unless both landlord and tenant agree.

• Roommate Agreements: Rights and Liabilities Remember, the roommate agreement is an

agreement among the roommates; it is not binding upon the landlord. The lease is the agreement between tenants who signed the lease and the landlord.

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If A Roommate Violates the Lease

• If roommate doesn't pay the rent, damages the place or makes too much noise, the landlord can hold everyone responsible.

• Any tenant who has signed the lease is responsible for the rent for the entire duration of the lease whether he or she lives on the premises or not.

• If more than one person has signed the lease, each person individually and all persons collectively are responsible for paying the rent in full.

• If one roommate moves out and does not pay his or her share of the rent, the other roommates must pay the rent in full or they will be subject to eviction for nonpayment of rent.

15

MAKING CHANGES TO LEASES

• Under a lease, in most cases, changes during the lease term cannot be made unless both landlord and tenant agree to the proposed change.

• If the property is sold. The sale of the property does not automatically end a tenancy. When a rental unit is sold, tenants must be notified of the new owner’s

name and address, either by certified mail, or by a revised posting on the premises.

• All deposits paid to the original owner must be transferred to the new owner, who must put them in a trust or escrow account.

The new owner must promptly notify tenants where the deposits are being held.

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Leases -“What if the property is foreclosed?” Title VII, Protecting Tenants at Foreclosure Act of 2009.

• The new owner may terminate the tenancy if the owner will occupy the unit as a primary residence, and has provided the tenant a notice to vacate at least 90 days before the effective date of such notice.

• This is the only exception to the rule that the tenant may not be evicted during the term of the lease.

• At the end of the term of the lease, the new owner may terminate the tenancy if the new owner provides a 90-day notice.

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Protecting Tenants at Foreclosure Act of 2009 [Title VII of the Helping Families Save Their Homes Act of 2009 (Federal Law)

The new Act expires December 31, 2012.

• LEASES AND THE NEW LEGISLATION• • The Protecting Tenants at Foreclosure Act of 2009

provides that an unexpired residential lease will survive foreclosure for whatever amount of time remains on the lease. A lease is bona fide if:

• · The tenant is not the Mortgagor or the Mortgagor’s child, spouse or parent;

• · The lease is the result of an arms-length transaction; and,• · The rent due under the lease is not substantially less

than market rent, unless the rent is reduced by a subsidy.

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An unexpired residential lease will survive foreclosure for whatever amount of time remains on the lease.

• EXCEPTIONS WHEN NEW OWNER CAN EVICT PRIOR TO LEASE END

• If the new owner wants to make the property their primary residence, they only have to give the tenant 90 days’ notice to leave after they become the property’s owner; or,

• If the tenant does not pay rent, the new owner can serve tenant the appropriate pay or vacate notice.

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UNDER WASHINGTON STATE LAWTenants and Foreclosure

• Repossession of Property from Tenant. A new section of RCW 61.24, effective as of July 26, 2009, provides additional protections for tenants in possession of residential real property. See, Engrossed Senate Bill 5810. These protections include: (i) to terminate the interest of a tenant, the tenant must be given a separate notice, at the time of the Notice of Trustee’s Sale is given; and (ii) after the foreclosure the tenant must be given 60 days written notice to vacate the property before he or she may be removed.

• Obligation to pay rent: State law doesn't require tenants to pay rent to the new owner if they don't sign a new lease. (Applying the 60 day notice period)

• Housing type: The federal law applies to all housing. The state law applies to rental housing of one to four units.

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Sub-leases & Assignments.

• It is allowable in a lease for the landlord to retain complete control over whether a tenant is allowed to sub-lease the premises?

• In a minority of states, the landlord may not unreasonably refuse permission.

• On the other hand, the landlord is always free to assign his interest in the leased property to another.

• A Tenant must be notified of the change and of the new address at which to pay rent.

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ILLEGAL LEASE PROVISIONSRCW 59.18.230

• Situations where the landlord would normally be responsible.

• A provision which requires the tenant to agree to a particular arbitrator at the time of signing the rental agreement.

• A provision allowing the landlord to enter the rental unit without proper notice.

• A provision requiring a tenant to pay for all damage to the unit, even if it is not caused by tenants or their guests.

• A provision that allows the landlord to seize a tenant’s property if the tenant falls behind in rent.

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Proper Notice to Leave

• If the tenant moves out at the expiration of a lease, in most cases it is not necessary to give the landlord a written notice.

• However, the lease should be consulted to be sure a formal notice is not required.

• If a tenant stays beyond the expiration of the lease, and the landlord accepts the next month’s rent, the tenant then is assumed to be renting under a month-to-month agreement.

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Damages from fire or disaster.

• If premises is rendered uninhabitable, a tenant may move out and give written notice to the landlord of termination of the lease.

• If only part of the premises is uninhabitable, a tenant may deduct a proportional amount from rent.

• Either the landlord or tenant may recover damages if the other caused the damages.

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Can Tenant move without penalty & get back deposit?

• Q: Lightning caused a fire that destroyed a residential tenant’s apartment. The tenant moved out and gave the landlord notice that he was terminating the rental agreement and wanted his security deposit back. Must the landlord return the security deposit to the tenant?

• ------------------------------------------------------------------• Normal Wear & Tear LL can’t keep the depositRCW 59.18.280

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TENANT CHOOSES TO TERMINATE LEASE EARLY

• There is NO law that says that the tenant cannot break their lease. HOWEVER, by law and by the lease contract, the tenant may be financially obligated to the landlord for rent and other charges to re-rent.

• A tenant who leaves before a lease expires is responsible for paying the rent for the rest of the lease. However, the landlord must make an effort to re-rent the unit at a reasonable price.

• Breaking Lease for Medical Reasons? relocation due to medical treatments (could tenant request a reasonable

accommodation?)

• Career Change?

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Early Lease Termination By Tenant

• -“I am continually disturbed by noisy tenants, and the landlord refuses to remedy the situation.”

It may be grounds to break the lease if Tenant has given landlord notice of the problem, & an opportunity to remedy the problem, and the problem still continues.

Breach of Landlord Duty because: (RCW 59.18.070)The landlord covenants the quiet enjoyment of his/her

rental property.

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TENANT BREAKING LEASE EARLY

• Breaking lease due to Cockroach infestations. (warranty of habitability)?

Normally, the remedy for poor housing quality or health violations is to file a complaint with the local housing inspectors or health department and/or to send a letter by certified mail to the landlord noting the problems & remedy sought

• If accepted into government issued Low Cost Housing?

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DOMESTIC VIOLENCE VICTIMS/LEASES

• A tenant who has given written notice to the landlord that he or she or a household member was a victim of domestic violence, sexual assault or stalking, may immediately terminate a rental agreement when a valid order for protection has been violated or the tenant has notified the appropriate law enforcement officers of the violation.

• The tenant must terminate the rental agreement within 90 days of the act or event leading to the protection order or report to appropriate law enforcement. [RCW 59.18.575]

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Tenant evicted for non-payment of rent & has an unexpired lease

• Reinstate Tenancy. The Residential Landlord-Tenant Act, RCW 59.18.410, does give tenants a way to reinstate or save their tenancy after judgment in an unlawful detainer action based on nonpayment of rent. In order to save the tenancy, tenant must satisfy the judgment and pay all court costs into the court within five (5) days of its entry.

• You can argue that court costs do not include attorney’s fees under RCW 59.18.410.

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STEPS TO REINSTATE TENANCY

• FULL JUDGMENT MUST BE PAID INTO COURT REGISTRY.

• ADDITIONAL COSTS, FEES AND RENT DUE, NOT JUST BACK RENT.

• COURT REGISTRY FEE IS REQUIRED• MONEY ORDER, CASHIER’S CHECK OR CASH ONLYPRACTICE TIP:Cr 6 APPLIES TO THE COMPUTATION OF TIME INTERVENING WEEKENDS OR HOLIDAYS ARE EXCLUDED

FROM THE 5 DAY PERIOD31

Reinstating a Lease Tenancy RCW 59.18.410

Tenant Presents:• Motion to Reinstate to the Commissioner in

Ex Parte• Copy of Receipt from the Clerk’s OfficeConfirming total balance due has been paid• Have Copy of the Judgment and Writ which

was issued in the case• Have copy of lease

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ENTERING THE UNIT

• PRIVACY—LANDLORD’S ACCESS TO THE RENTAL [RCW 59.18.150]

• The landlord must give the tenant at least a two day notice of his intent to enter at reasonable times.

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ENTERING THE UNIT

• The law says that tenants shall not unreasonably refuse the landlord access to repair, improve, or service the dwelling. In case of an emergency, or if the property has been abandoned, the landlord can enter without notice. The landlord still must get the tenant’s permission to enter, even if the required advance notice has been given.

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MORE GUIDANCE

• LANDLORD’S RESPONSIBILITIES [RCW 59.18.060]

• TENANT’S RESPONSIBILITIES [RCW 59.18.130]

• THREATENING BEHAVIOR BY A TENANT OR LANDLORD [RCW 59.18.352 and .354]

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REPAIRS

• A tenant must be current in the payment of rent including all utilities to which the tenant has agreed in the rental agreement to pay before exercising any statutory remedies, such as repair options. [RCW 59.18.080]

• RCW 59.18.063Tenant entitled to written receipts from landlord

upon request36

REPAIRS AND REQUIRED NOTICE

• Required Notice [RCW 59.18.070]• The notice must include the address and apartment

number of the rental; the name of the owner, if known; and a description of the problem. After giving notice, the tenant must wait the required time for the landlord to begin making repairs.

• The notice must include the address and apartment number of the rental; the name of the owner, if known; and a description of the problem. After giving notice, the tenant must wait the required time for the landlord to begin making repairs.

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TIME PERIODS FOR REPAIRS

• 24 hours for no hot or cold water, heat or electricity, or for a condition which is imminently hazardous to life;

• 72 hours for repair of refrigerator, range and oven, or a major plumbing fixture supplied by landlord;

• 10 days for all other repairs.

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LANDLORD NON-COMPLIANT

• Tenant’s Options [RCW 59.18.090] • If repairs are not started within the required

time and if the tenant is paid up in rent and utilities, the following options can be used:

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TENANT’S OPTIONS/LANDLORD FAILS TO ACT

• Tenant can give written notice to the landlord and move out immediately. Tenants are entitled to a pro-rated refund of their rent, as well as the deposits they would normally get back.

• In many cases the tenant can have the work done and then deduct the cost from the rent. [RCW 59.18.100]

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TENANT’S REPAIR REMEDIES

• Note: If the repair is one that has a 10-day waiting period, the tenant cannot contract to have the work done until 10 days after the landlord receives notice, or five days after the landlord receives the estimate, whichever is later.

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IF TENANT CONTRACTS OUT FOR REPAIRS

• To follow this procedure a tenant must:• Submit a good faith estimate from a licensed or registered

tradesperson, if one is required, to the landlord.• After the waiting period, the tenant can contract with the

lowest bidder to have the work done.• After the work is completed, the tenant pays the

tradesperson and deducts the cost from the rent payment. • The landlord must be given the opportunity to inspect the

work. • The cost of each repair cannot exceed one month’s rent; total

cost cannot exceed two month’s rent in any 12-month period.

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DEPOSITS AND OTHER FEESRefundable deposits

• If a refundable deposit is collected, the law requires:• • The rental agreement must be in writing. It must say

what each deposit is for and what the tenant must do in order to get the money back. [RCW 59.18.260]

• • The tenant must be given a written receipt for each deposit. [RCW 59.18.270]

• • A checklist or statement describing the condition of the rental unit must be filled out. The landlord and the tenant must sign it, and the tenant must be given a signed copy.

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RETURN OF DEPOSITS [RCW 59.18.280]

• After a tenant moves out, a landlord has 14 days in which to return the deposits, or give the tenant a written statement of why all or part of the money is being kept.

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TENANT ABANDONS UNIT

• When a rental has been abandoned, the landlord may enter the unit and remove any abandoned property.

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Taking the tenant’s property.

• If a landlord takes a tenant’s property and a court later determines there had not actually been an abandonment, the landlord could be ordered to compensate the tenant for loss of the property, as well as paying court and attorney costs.

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ABANDONMENT RELATED TO FAILURE TO PAY RENT

• [RCW 59.18.310]• Under the law, abandonment occurs when a tenant has both

fallen behind in rent and has clearly indicated by words or actions an intention not to continue living in the rental.

• When a rental has been abandoned, the landlord may enter the unit and remove any abandoned property. It must be stored in a reasonably secure place. A notice must be mailed to the tenant saying where the property is being stored and when it will be sold. If the landlord does not have a new address for the tenant, the notice should be mailed to the rental address, so it can be forwarded by the U.S. Postal Service.

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ABANDONMENT RELATED TO EVICTION

• [RCW 59.18.312]• When a tenant has been served with a writ of

restitution in an eviction action, the tenant will receive written notification of the landlord's responsibilities regarding storing the tenant's property that is left behind after the premises is vacant. Tenants will be provided with a form to request the landlord store the tenant's property.

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Retaliatory actions by Landlord.

• [RCW 59.18.240 -.250] If the tenant exercises rights under the law, such as complaining to a government authority or deducting for repairs, the law prohibits the landlord from taking retaliatory action.

• Examples of retaliatory actions are raising the rent, reducing services provided to the tenant, or evicting the tenant.

• The law initially assumes that these steps are retaliatory if they occur within 90 days after the tenant’s action, unless the tenant was in some way violating the statute when the change was received.

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RCW 59.12.030Unlawful detainer defined.

• A tenant of real property for a term less than life is guilty of unlawful detainer either:

(1) When he or she holds over or continues in possession, in person or by subtenant, of the property or any part thereof after the expiration of the term for which it is let to him or her. When real property is leased for a specified term or period by express or implied contract, whether written or oral, the tenancy shall be terminated without notice at the expiration of the specified term or period;

(2) When he or she, having leased property for an indefinite time with monthly or other periodic rent reserved, continues in possession thereof, in person or by subtenant, after the end of any such month or period, when the landlord, more than twenty days prior to the end of such month or period, has served notice (in manner in RCW 59.12.040 provided) requiring him or her to quit the premises at the expiration of such month or period;

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RCW 59.12.030

• (3) When he or she continues in possession in person or by subtenant after a default in the payment of rent, and after notice in writing requiring in the alternative the payment of the rent or the surrender of the detained premises, served (in manner in RCW 59.12.040 provided) in behalf of the person entitled to the rent upon the person owing it, has remained un-complied with for the period of three days after service thereof. The notice may be served at any time after the rent becomes due;

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RCW 59.12.030

• (4) When he or she continues in possession in person or by subtenant after a neglect or failure to keep or perform any other condition or covenant of the lease or agreement under which the property is held, including any covenant not to assign or sublet, than one for the payment of rent, and after notice in writing requiring in the alternative the performance of such condition or covenant or the surrender of the property, served (in manner in RCW 59.12.040 provided) upon him or her, and if there is a subtenant in actual possession of the premises, also upon such subtenant, shall remain un-complied with for ten days after service thereof.

• Within ten days after the service of such notice the tenant, or any subtenant in actual occupation of the premises, or any mortgagee of the term, or other person interested in its continuance, may perform such condition or covenant and thereby save the lease from such forfeiture;

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RCW 59.12.030

• (5) When he or she commits or permits waste upon the demised premises, or when he or she sets up or carries on thereon any unlawful business, or when he or she erects, suffers, permits, or maintains on or about the premises any nuisance, and remains in possession after the service (in manner in RCW 59.12.040 provided) upon him or her of three days' notice to quit;

(6) A person who, without the permission of the owner and without having color of title thereto, enters upon land of another and who fails or refuses to remove there from after three days' notice, in writing and served upon him or her in the manner provided in RCW 59.12.040. Such person may also be subject to the criminal provisions of chapter 9A.52 RCW; or

(7) When he or she commits or permits any gang-related activity at the premises as prohibited by RCW 59.18.130.

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• RCW 59.12.091 Writ of Restitution Under Residential Landlord Tenant Act

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END OF PRESENTATION

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