Illegal Lease Clauses in Washington

All leases are not created equal. In fact, some even contain provisions that are illegal and can’t be enforced. Washington law mentions several illegal lease terms that should never be included in either written or oral leases.¹ Tenants should always read carefully through a lease agreement before signing to be sure it doesn’t include any illegal terms. Even if there’s an illegal clause, the rest of the lease may be valid. That said, tenants can sue landlords who include illegal terms in their lease.

A lease can’t waive tenants' rights under Washington law

Tenants have many rights under Washington law that cannot be given up, or waived.² Any lease provision that waives any of these rights is illegal. Landlords can’t include lease provisions that waive a tenant’s rights to things like:

• A refund of their security deposit if they move out early
• Notice from the landlord when they want to enter the unit
• The landlord’s responsibility to keep the premises habitable
• The ability to make needed repairs and deduct the cost from rent

A lease can’t waive tenants' right to defend themselves

If a landlord and tenant end up facing off in court, tenants have a right to defend themselves against the landlord’s accusations by whatever means they choose. A lease can’t include a provision that holds the tenant automatically at fault in a dispute about the rental agreement.

A lease can’t require tenants to pay their landlords' lawyer fees

There can’t be a lease provision requiring a tenant to pay their landlord’s attorney’s fees if a dispute related to the rental agreement goes to court. However, Washington law does require tenants to pay the landlord’s attorney’s fees in certain instances, such as if a tenant fails to appear in court in an unlawful detainer action and the tenant is more than two months late on their rent.³

A lease can’t limit the landlord’s liability

If a landlord tries to include a provision that limits their liability in situations where they’re typically responsible, that provision is illegal and unenforceable. For instance, a lease provision that makes tenants pay for any damage caused to the rental property—unless it was caused by the tenant or their guest—is illegal. Landlords can’t require tenants to pay for damage to the unit caused by such things as weather, negligence on the landlord’s part, or general wear and tear.

A lease can’t require tenants to use a particular arbitrator

While landlords and tenants can agree to go to arbitration instead of court, a lease can’t contain a provision that requires the tenant to agree to a particular arbitrator for future disputes. Such a provision may put the tenant at a disadvantage, since the landlord can choose an arbitrator who they know personally, or who they know will rule in their favor. The arbitrator must be agreed upon by both the tenant and landlord at the time of the dispute.⁴

A lease can’t allow landlords to take tenants’ property for missed rent

When a tenant fails to pay rent on time, the landlord can begin eviction proceedings or take them to court to collect back rent. What a landlord can’t do is include a provision in the lease that allows them to take a tenant’s personal property in exchange for the missed rent.

A landlord who includes such a provision in a lease, takes a tenant’s belongings without their specific written consent, and refuses to give their belongings back will have to pay the tenant the value of the property and actual damages. Depending on the circumstances, the landlord may also have to pay the tenant up to $5,000 for depriving them of their property.

A 1980 Washington case decided that actual damages should be measured as either:⁵

• The market value of the item taken
• The cost to replace the item
• If irreplaceable, the value to the owner at the time it was taken

Evidence of the original price of the property is also taken into account. This particular case found the landlord liable for $700 for taking the personal property of a tenant without consent.

Landlords who include illegal lease terms can be sued

A landlord may still try to include illegal terms in a lease, despite knowing that they’re unenforceable. Any landlord who purposefully does so can be sued by a tenant. They’re liable to the tenant for actual damages, up to $500 in statutory damages, the costs of the lawsuit, and reasonable lawyer fees.

In 2017, for instance, a property management company that forced Washington tenants to sign leases containing illegal provisions was ordered to pay more than $16,000. The illegal lease provision required service members to give up or repay rent concessions if they needed to end their leases early because of deployment or a station change—something that’s illegal under both state and federal law. The property management company was required to refund $6,000 to the tenants and pay more than $10,000 in attorney’s fees.⁶

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[1] RCW §59.18.230

[2] RCW §59.18

[3] RCW §59.18.290

[4] RCW §59.18.320

[5] Sollenberger v Cranwell (1980)

[6] “AG Ferguson Cracks Down on Illegal Lease Provisions Targeting Service Members,” Washington State Office of the Attorney General, April 2017