Constructive Eviction in Washington

When a landlord allows their rental property to become uninhabitable—usually by failing to provide an essential service such as heat or hot water—tenants in Washington can move out and break their lease. The legal term for this process is “constructive eviction,” since the landlord has effectively forced the tenants out through their actions (even if they haven’t gone through the formal eviction process). It’s not something to take lightly, however. Tenants must follow specific procedures laid out by Washington law to successfully claim constructive eviction.

Constructive eviction is allowed in Washington if the rental is unlivable

Landlords in Washington State are required by law to keep their rental units habitable—a duty known as the “implied warranty of habitability.”¹ This includes maintaining the structural components of the unit (like the walls and the roof), keeping common areas clean, preventing rodent infestations, and making important repairs in a timely manner. If a landlord fails to do so, it’s a breach of the warranty of habitability, and a tenant can claim constructive eviction.

One major caveat: tenants can’t say they were constructively evicted if they (or their guest) caused the uninhabitable condition, or if they didn’t let the landlord into the unit to make needed repairs.

The rental must endanger the tenant to justify constructive eviction

To make a claim of constructive eviction, the necessary repair must be more than just a general fix. If it’s a broken door handle or appliance, tenants can have the repair done themselves and deduct the cost from their rent. But in certain circumstances, the repair is so significant that it creates a dangerous condition for the tenant. This includes:²

• Insufficient structural support
• Dangerous plumbing defects
• Lack of hot water
• Broken heating systems
• Hazardous electrical writing
• Inadequate exits that increase the risk of injury
• Conditions that increase the risk of fire

Often, constructive eviction applies in situations where there are a number of problems with the rental property. A 2014 Washington case determined that a landlord constructively evicted tenants by letting trash pile up, failing to provide cleaning services, leaving feces in the common areas, failing to fix the heating and cooling system, and neglecting to provide needed security.³

Tenants must notify the landlord first and give them time to make repairs

Before making a claim of constructive eviction, tenants must give the landlord an opportunity to make the needed repairs. That means they must give the landlord written notice and up to 10 days to make the repairs.⁴ Unlike many states, Washington provides guidelines for how long a landlord has to make the needed repairs:

• 24 hours to make repairs related to electricity, heat, hot or cold water, or that are life-threatening to the tenant
• 72 hours to make repairs on plumbing or appliances
• Up to 10 days for any other repairs

In most cases of constructive eviction, the repair is so severe that it needs to be done within 24 hours.

Government inspectors can verify that a rental is uninhabitable

To prove the existence of a dangerous condition, the tenant can request an inspection from a local governmental entity. In Seattle, for example, tenants can contact the Seattle Department of Construction and Inspections to request an inspection. The government inspector must come out within five days of the request and verify that a condition exists that makes the rental unit uninhabitable.⁵

If the inspector certifies that the rental unit is uninhabitable and a risk to the tenant’s health and safety, tenants can opt to either:

1. Stop paying rent and move out
2. Start paying rent into a separate escrow account until the repairs are made

An escrow account can only be used if the tenant is paid up on rent, can’t make the necessary repairs themselves, and have already had a government inspection done.⁶ Why would a tenant continue to pay rent if their apartment was unlivable? It might be difficult for a tenant to find a new place on short notice, or one that’s as affordable, so perhaps they want to give their landlord a little more time to make the necessary repairs before abandoning the unit.

However, it can be time-consuming and complicated to set up a rent escrow account, so it’s best to consult with an attorney before going this route.

Related articles

[1] RCW 59.18.060

[2] RCW 59.18.115

[3] Old City Hall LLC v. Pierce County AIDS Foundation (2014)

[4] RCW 59.18.070

[5] RCW 59.18.115

[6] RCW 59.18.115