Author: Brian Hanis

RENTAL DEPOSITS           

 

An issue I regularly see in residential landlord-tenant relationships surrounds deposits.  Landlords, it is worth a few minutes of your time to make sure you understand how to apply them.  In the long run, the minimal extra time you spend to follow them could save you thousands that could have easily been avoided.

 

First, if you are going to require a deposit, there must be a written rental agreement.  The agreement shall include the terms and conditions under which the deposit can be withheld (RCW 59.18.260 of the Residential Landlord/Tenant Act).  

 

I want to add a point here.  Tenants constantly try to have the deposit applied to an obligation under the lease, such as unpaid rent.  It is your discretion whether to apply it.  I recommend never doing so until you have the unit back and know the extent of other damages.

 

An additional requirement of RCW 59.18.260 is that there must be provided to the tenant a written checklist.  A piece of advice, have the tenant sign an acknowledgment that you provided the checklist, in case the tenant does not return it, and provide the tenant a copy of this statement.   Failure to provide the checklist could require you having to return the deposit, whether damages by the tenant occurred or not.

 

Landlords, after receipt of the deposit, the funds must be placed into a trust account and it must be disclosed to the tenant where the funds are being held (RCW 59.18.270).  This is simply accomplished by adding a clause in the lease disclosing the bank it will be held at.

 

It is common within lease agreements to add language that a part of the deposit is “non-refundable.”  RCW 59.18.285 states that any funds paid that are non-refundable may not be designated as a “deposit” or as part of the deposit.  The rental agreement must clearly state that the fee is non-refundable.  If this is not done, then the “fee” is converted to a refundable deposit subject to the terms of the lease.  The conversion to “refundable” does not mean the tenant is automatically entitled to that portion being refunded.  It simply means that there must now be a basis to retain it as disclosed in the lease agreement.

 

The most common problems, and where landlords get in the most trouble, arise for deposits after the tenant leaves.  Specifically, when the funds must be returned.  RCW 59.18.280 states that the notice for retention of the deposit, along with any refund due to the tenant, must be given within 14 days of the tenant vacating the premises or the landlord learns of abandonment.  The notice and refund must be sent first-class, postage prepaid, properly addressed to the last known address of the tenant, and placed in the United States mail by the 14^th day.

 

Let’s break this down some.  First, the statement must be a full and specific statement.  Simply stating “damages” or vague language to that affect is not sufficient.  Break it down as best you can. 

 

Second, a common excuse of landlords is they do not know the “extent” of damages which is why it was not sent within 14 days.  It should not be difficult to enter the unit and determine the damages.  There really is no excuse for this.  The real challenge centers on the actual costs.  For costs to repair/replace, it is sufficient to state an estimate of the costs.  It can be adjusted later.  Do not just make up a number though.  If you can go to a hardware store or have a third party give an estimate, get it.  If that is not possible, then give you best estimate.  Do not be unreasonable though.  $5.00 for a nail is not reasonable. 

 

Another piece of advice, where possible add repairs into the lease.  For example, if the landlord is going to do the work, put in the lease that the work will be completed at a specific hourly rate. 

 

Next, the 14 day rule.  This is not a mere suggestion.  Landlords, you have 14 days with one exception, circumstances beyond your control prevented providing the statement timely.  Being too busy is not an excuse.  In my experience, there is rarely a time when the exception applies.

 

Last, where to send it?  It is common for a tenant to not provide a forwarding address.  The statute states it simply has to be sent to the “last” known address, which can be the unit rented from you.  Do make sure that you send it through the mail, first class, postage prepaid.  This requirement is there because people will put forwarding addresses for their mail.  If it comes back to the unit, simply hold it to prove that it was sent.

 

These rules may seem a little excessive but regardless they have to be followed.  Courts can and do hold landlords strictly to them on a regular basis.  Believe me when I say it is worth the time to follow them exactly.  Failure to do so could lead to significant costs, including paying up to twice the deposit and attorney fees and costs of the tenant, if they are not followed.  If in doubt give our firm a call and we can discuss what needs to be done.

Everyday landlords are dealing with evictions, otherwise known as unlawful detainer actions.  Whether it is from a tenant failing to pay rent, not disposing of garbage, or any other violations.  The question that I often face when dealing with such is, what to do next?

First, some information that everyone dealing with a landlord/tenant matter should understand.  For residential leases, although a written lease is not required, it is highly recommended.  The Residential Landlord/Tenant Act (RCW 59.18) and Manufactured/Mobile Home Landlord-Tenant Act (RCW 59.20) control these leases, whether verbal or written, and provide the basic parameters to be followed.  If you are involved in a landlord/tenant relationship, you should familiarize yourself with this Act.

For commercial leases, it is recommended that you have a written lease.  Without it, there is very little guidance to the agreements provided by law (RCW 59).

The most important thing to remember when dealing with an issue, whether as a landlord or a tenant, is that a process must be followed.  If any step is not followed, or the allocated time is not provided, you can find yourself back at square one, or losing potential rights.

The process of evicting someone is similar whether dealing with a residential or commercial lease.  First, a proper notice must be served with the proper time allocated.  It is important to understand that even serving the notice has certain requirements.  The notice not being prepared correctly (ie. the wrong notice is used or incorrect information included), or not served properly, are the most common reasons Landlords find themselves having to start over. 

After the time period has expired, the Landlord has a number of options to pursue based upon the response of the violating tenant, including proceeding to the courts.  It is important to understand that, except in limited situations, you MUST give the notice before proceeding with an eviction.  For tenants, the same can apply to you when you have an issue with a landlord.

If the choice is to proceed to the courts, typically the next step is setting a show-cause hearing.  This directs the violating tenant to appear and present legal reason why they did not comply with the notice.  If the court disagrees with the tenant, then an order is issued for a Writ of Restitution directing the Sheriff to remove the tenant. 

The Sheriff then has 20 days to remove the tenant(s).  First, the sheriff will serve another notice giving the tenant 72 hours to vacate, not including weekend or holidays.  Next, a time is set up for the sheriff to remove the tenant(s).  At this time, the Landlord must have a crew sufficient to remove the belongings of the tenant(s) within one hour. 

Last, the Landlords must deal with the deposit, if applicable.  The law states that within 14 days of the tenant vacating, a proper notice must be provided to the last known address of the basis for retention of the deposit, and refund of any amounts due.  Failure to do so could lead to a tenant receiving judgment for double the amount of the deposit, even if the money is owed.

The process to evict someone has very specific guidelines to be followed.  If you are facing such, it is recommended to seek legal assistance to ensure that the proper process is followed, which could save you time and money.

MOLD, that ever present problem that both Landlords and Tenants have to face.  First, it is important to understand that how the mold becomes present depends on who is liable.  For example, a tenant that does not properly vent the bathroom, such as during showers, when a landlord requires such, if mold develops, it is on the tenant to remove the mold. 

Now, where to start?  The EPA has valuable information regarding mold that will give you some basic understandings.  I recommend that you start there (http://www.epa.gov/mold/index.html).

With this understanding, there are many ways to treat mold.  The traditional way has always been with bleach.  This is not recommended anymore.  For tenants, if you use it and it drips on the carpet causing a stain, you are now liable for replacement of that carpet.  For landlords, if you advise this course of action and a drip occurs, then you become potentially liable.  Bleach is also not recommended now because many molds have mutated, building up a tolerance to bleach and making it ineffective. 

So, what do you use?  There are many mold killing agents available such as Zinnser Perma-Wash and X-14.  These are actually more effective at killing mold than bleach anyways.

Here are some recommended steps to cleaning the mold.  Before getting started, always make sure to use proper protection and properly ventilate the area:

1. Spray a towel/rag with the cleaning product.  DO NOT spray the wall because it will cause the spores of the mold to become airborne making the environment unsafe.  Then wipe the area, fold the towel, re-spray the towel and wipe again.  Keep doing this until the surface growth is gone.
2. Next, take a soft bristle brush and warm soapy water and gently clean the surface.  Do not saturate the surface or it can just lead to more problems (ie. more mold).  This is just to get down to the surface.  Then use a towel/rag and dry the surface.  After cleaning, a stain may still exist. 
3. Once dry use a spray shellac over the area.  Shellac is alcohol based that will dry quickly.  The purpose of this is to seal the odor from the mold growth.
4. Once dry, use an oil based primer, such as Kilz, and spray/paint the area.  This will seal in the area from further growth. 
5. Now you can paint.  It is recommended that the paint contains a mold inhibitor.  It can be added when the paint is mixed and can help prevent future growth.

Now that you know what to do, stay on top of this.  Landlords, make sure you address this quickly.  Do not be cheap and use the easy route either.  This route can only lead to a lot more cost than it should have been.  Tenants, make sure to keep your landlord in the loop.  Get authorization for the paint.  Sometimes, the landlord may have the supplies for you.

Mold is dangerous.  It can cause many health problems that can easily be avoided.  When you discover it, act quickly and you will not only keep the unit safe and healthy but you will save a lot of money.