Man handing over moneyThis is the next post in my series on the eviction process and landlord-tenant disputes in Tacoma, Washington. My last article discussed one’s rights in an eviction case. Many tenants make the mistake of thinking that landlords have “all the rights” in such matters. The truth, however, is that if landlords fail to follow the proper procedures then a tenant may have some protections in the situation. No two cases are the same and it is always suggested that you discuss your situation with an attorney as soon as possible. In this article I will discuss another topic which often leads to confusion – when a tenant may lawfully withhold rent. If you or a loved one are in need of assistance then contact my office today to speak with a lawyer.

Many tenants believe that they have the right to withhold rent if any type of repair, no matter how small, is needed to their house or apartment, or for any type of misdeed by the landlord. This is not the case. In fact, there are a very limited number of instances in which a tenant may legally withhold their rent. If a tenant withholds rent when they don’t have a clear right to do so, the landlord can evict them for nonpayment of rent. Worse, many rights that a tenant has under the Residential Landlord Tenant Act are dependent on the tenant being current on the rent and are lost if the tenant mistakenly withholds rent that is due. So, it is extremely important to understand when a tenant may actually withhold rent. In some situations, when a landlord fails to make the repairs, the tenant may arrange and pay for needed repairs instead of paying rent to the landlord, but it is better to pay rent if there is any doubt of the matter.

Generally, a tenant may lawfully withhold rent if all of the following conditions are met:

  • The rental unit is in need of major repair or maintenance (Rent cannot be withheld for reasons other than repair and the amount withheld needs to be used for repair. Rent cannot be withheld to force the landlord to do the repair.)
  • The need for repair must not be the fault of the tenant.
  • The tenant must have notified the landlord of the problem and given the landlord ample opportunity to fix it. (The notice must be in writing and must be given to the landlord in a way that proves that the landlord got the notice. Tenants often don’t give proper or provable notice and therefore lose when they withhold rent. Attorney assistance is very useful before rent is withheld and before the tenant makes or pays for repairs.)
  • The rent was current at the time that the demand for repairs was made.
  • The cost of the repair must be less than one month’s rent.
  • If multiple repairs are needed, the cost cannot exceed two month’s rent in any twelve month period.

Finally, the judge decides during the eviction process whether the repair was a major one, serious enough to allow the tenant to withhold rent. Judges commonly second guess tenants on this – and the tenants lose even when they carefully followed all the steps. Performing the repair yourself or withholding rent to pay for the repair can have very serious consequences if not done correctly, so it is best if you seek assistance of an attorney with the before you do take these steps.

Another option, as opposed to withholding rent, is to pay the rent “under reservation of rights” or “subject to refund.” If you are paying by check, this can be done by writing those words on the memo line of the check. If you are paying by cash, it is best to include a cover letter that contains the words “under reservation of rights” or “subject to refund” and asks the landlord to acknowledge those words when giving you the required receipt for your cash payment of rent.

Finally, if some condition of the property makes the property uninhabitable or unsafe to live in, the tenant has other rights – including (1) the right to terminate the lease and move (with a refund of the deposit and any rent paid for the time left after move out), (2) the right to sue the landlord to make repairs, or (3) the “right to escrow” (a complex process where you pay the rent into a separate account rather than to the landlord) until the repair is made. These are a tenant’s only options if the repairs needed to make the property habitable are extensive or expensive – and they are best done with the assistance of an attorney.

The situations in which a Washington tenant may withhold rent can be complicated, factually and legally. There are serious consequences if a tenant wrongly withholds rent. It is best to discuss your situation with an attorney. As an Olympia landlord-tenant lawyer, I am able to assist with such matters. Contact my office today to schedule an initial consultation and to help ensure that your rights remain protected. Our firm also serves the Thurston County cities of Lacey, Tumwater, and Yelm, the Pierce County cities of Tacoma, Puyallup, and Lakewood, the Lewis County cities of Centralia, Chehalis, the King County cities of Seattle, Auburn, Bellevue, Burien, and Federal Way, as well as other areas in Washington, including Grays Harbor, Mason, Cowlitz, and Pacific Counties.

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