Kiemle & Hagood Company v. Mariam P. Daniels a/k/a Phoebe Daniels
Wash. Ct. App.
Opinion
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FILED
APRIL 27, 2023
In the Office of the Clerk of Court
WA State Court of Appeals, Division III
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION THREE
KIEMLE & HAGOOD COMPANY, a ) No. 38918-9-III
Washington corporation, as authorized )
agent for ST. CLOUD APARTMENTS, )
)
Respondent, )
)
v. ) PUBLISHED OPINION
)
MARIAM P. DANIELS a/k/a PHOEBE )
DANIELS, a single person, and all other )
subtenants, )
)
Appellant. )
PENNELL, J. — Kiemle & Hagood Company (K&H) initiated an action for
unlawful detainer against Mariam “Phoebe” Daniels, alleging she violated lease
provisions requiring her to keep her apartment clean and sanitary. Ms. Daniels answered
K&H’s complaint by disputing the allegations and asserting an affirmative defense of
failure to reasonably accommodate a disability. The trial court held a show cause hearing,
after which it granted K&H’s request for a writ of restitution and denied Ms. Daniels’s
request for a jury trial. According to the court, trial was unwarranted because there were
no substantial issues of material fact as to K&H’s right to possession. As to Ms. Daniels’s
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No. 38918-9-III
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reasonable accommodation defense, the trial court concluded Ms. Daniels had neither
sufficiently verified she had a disability nor established the requested accommodation
was necessary or reasonable.
We reverse. While there is no dispute that K&H was entitled to a writ of
restitution, material issues of fact precluded the trial court from issuing final judgment.
Ms. Daniels raised genuine issues of fact regarding whether she was subject to eviction
on the grounds properly alleged by K&H. Furthermore, Ms. Daniels was not required to
supply third-party verification of her disability or her need for accommodation, based on
the obviousness of the condition. This matter should have been set for trial rather than
summarily resolved.
BACKGROUND
The parties’ lease
Phoebe Daniels leased an apartment from K&H. She began with an 11-month
lease term expiring in May 2021. The parties later agreed to a lease renewal, set to expire
on February 28, 2022. The lease required Ms. Daniels to keep her apartment “clean and
sanitary.” Clerk’s Papers (CP) at 22, 65. Addendums regarding mold and bed bugs
contemplated specific cleaning routines, including removing clutter, vacuuming, and
dusting. The lease also required Ms. Daniels to properly dispose of garbage “at least
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weekly.” Id.
K&H’s notices to Ms. Daniels
On August 24, 2020, K&H issued the first of seven notices to Ms. Daniels,
alleging she had violated her cleaning obligations. Four of the notices demanded
Ms. Daniels comply with her lease conditions or vacate. See id. at 101, 106, 111, 116.
Two of the notices directed her to cure the lease violations, or the landlord would enter
the property and conduct remedial work at cost. See id. at 122, 127. The final notification
directed Ms. Daniels to quit and vacate the premises. See id. at 134.
Each notice provided detailed descriptions, citing recent inspections by
K&H employees. According to the notices, furniture and boxes were stacked inside
Ms. Daniels’s residence, blocking ingress and egress; garbage had not been disposed of;
spills and dirty paper towels had accumulated on the floor; and there was an excessive
amount of personal property throughout the unit, including in the kitchen and bathroom,
and in proximity to heating fixtures and on the stovetop.
Two of K&H’s notices were issued on November 3, 2021. 1 One was entitled,
“Ten (10) Day Notice to Comply or Vacate.” Id. at 116. The other was entitled, “Notice
1
One of the November 3 notices expressly “supersede[d] any previous notice.”
CP at 131.
3
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to Cure Lease Non-Compliance.” Id. at 127. The former notice stated Ms. Daniels had
10 days to comply or her rental agreement would end; the latter stated she had 10 days
to cure or the landlord could enter the apartment and perform remedial work at cost to
Ms. Daniels.
The seventh and final notice was issued on December 27, 2021. See id. at 134.
This one was entitled, “Notice to Quit and Vacate Due to Nuisance, Waste, and/or
Unlawful Activity.” Id. This notice stated Ms. Daniels had until January 2, 2022, to
vacate her apartment. The notice was longer than the previous notices and referenced the
prior notices to cure. The December 27 notice also advised that on November 29, 2021,
the landlord had conducted an inspection of Ms. Daniels’s apartment and found it had still
not been cleaned. The December 27 notice stated if Ms. Daniels did not vacate the
premises by January 2, she would be deemed in unlawful detainer and K&H would
initiate legal action. The December 27 notice also advised Ms. Daniels of her right to
legal representation.
K&H files suit
Ms. Daniels did not vacate her unit and on January 10, 2022, K&H initiated an
unlawful detainer action. K&H’s complaint alleged two independent causes for eviction.
First, that Ms. Daniels was in “‘substantial breach’” of her tenant obligations. Id. at 13
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(quoting RCW 59.18.650(2)(b)). Second, that Ms. Daniels had committed “‘waste,’”
“‘nuisance,’” “‘unlawful activity that affects the use and enjoyment of the premises,’” or
“‘other substantial or repeated and unreasonable interference with the use and enjoyment of
the premises by the landlord or neighbors.’” Id. at 13-14 (quoting RCW 59.18.650(2)(c)).
K&H also requested a writ of restitution restoring it to possession of the premises pending
the unlawful detainer action. The trial court scheduled a show cause hearing. Ms. Daniels
obtained appointed counsel, answered the complaint and asserted affirmative defenses, and
filed a motion to dismiss. Ms. Daniels’s answer argued that if the court did not dismiss
K&H’s complaint, factual issues remained that “‘must be resolved by trial.’” Id. at 188
(quoting Hous. Auth. v. Pleasant, 126 Wn. App. 382, 392,109 P.3d 422
(2005)).
Ms. Daniels’s accommodation request
Just before filing her answer, affirmative defenses, and motion to dismiss,
Ms. Daniels’s attorney sent a letter to counsel for K&H. The letter stated Ms. Daniels
generally denied the allegations set forth in K&H’s complaint. But to the extent she was
in violation of her tenant duties, the letter explained it was due to disability. Ms. Daniels
formally requested she be given an accommodation to allow her “to continue her tenancy
and avoid homelessness.” Id. at 172.
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Ms. Daniels’s accommodation request stated she was 80 years old and suffered
from several physical disabilities, including “degenerative disc disease, thyroid disease,
high blood pressure, hypoglycemia, and incontinence.” Id. at 173. She also claimed to
have lost eight inches of height in recent years: while she used to stand five feet, two
inches tall, Ms. Daniels currently stood four feet, six inches. As a result of Ms. Daniels’s
conditions, she had limited strength and tired easily. The accommodation request
explained that when Ms. Daniels moved into her apartment, the movers did not unpack
any of her belongings, and Ms. Daniels lacked the strength to do so herself. Ms. Daniels
lived alone and had no family in the area to help her. Ms. Daniels explained that her
physical limitations hindered her ability to perform basic housekeeping tasks and that
she could not afford to hire help.
The accommodation request reported Ms. Daniels intended to work with her
attorney to find resources to assist her with housekeeping and unpacking her belongings.
The request asked K&H to “rescind the eviction notices” and “dismiss the unlawful
detainer action,” which would “give [Ms. Daniels] time to obtain assistance in addressing
[K&H’s] concerns.” Id. at 172. The request cited Ms. Daniels’s disability, along with
state and federal law prohibiting housing discrimination against persons with disabilities.
It also served as a basis for one of Ms. Daniels’s affirmative defenses to K&H’s
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complaint.
Trial court proceedings
The trial court denied Ms. Daniels’s motion to dismiss and proceeded to the show
cause hearing. At the outset of the hearing, K&H’s counsel informed the court that his
client had denied Ms. Daniels’s request for accommodation. The hearing took place over
the course of two days and involved testimony from three K&H employees, a pest control
technician, and Ms. Daniels.
The K&H employees authenticated photographs of Ms. Daniels’s apartment;
corroborated allegations that had been set forth in the notices; and explained the condition
of Ms. Daniels’s unit posed a risk to the landlord in the form of potential for infestation,
damage to surfaces, inadequate airflow, and egress from the unit. K&H’s maintenance
technician opined that the condition of Ms. Daniels’s apartment posed a risk of mold
growth, but admitted he had not actually observed mold in the unit. The employees also
testified Ms. Daniels had told them about having “back issues” that made it difficult for
her to move items in her apartment. Rep. of Proc. (RP) (Feb. 14, 2022) at 66; see also id.
at 86-87, 94; RP (Feb. 15, 2022) at 121.
The pest control technician testified he visited Ms. Daniels’s apartment during
August 2021. At that time, the overwhelming accumulation of personal items in
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Ms. Daniels’s unit made it “next to impossible to do an adequate pest inspection.”
RP (Feb. 14, 2022) at 47. He did not opine that there was a current infestation, but
testified he found rodent droppings and, due to how messy the apartment was, he was
unable to find access points where rodents could enter. “I[t] wasn’t a safe environment to
move around in.” Id.
Ms. Daniels testified on her own behalf and explained how her impairments
diminished her strength and caused her to tire easily, impeding her ability to clean
the apartment, regularly dispose of trash, and unpack boxes. During her testimony,
Ms. Daniels addressed some of the specifics regarding the state of her apartment.
She reiterated that the company that had moved her into the apartment had not helped
her unpack. According to Ms. Daniels, the movers “stacked . . . boxes three high on two
walls of [the] apartment.” RP (Feb. 15, 2022) at 127. Ms. Daniels could not move the
boxes “because they were too heavy.” Id. Ms. Daniels explained there was clothing on
her floor because a closet rod broke and she was unable to fix it. Ms. Daniels also
explained that her incontinence problem leads to an increase in the amount of garbage she
produces, and that she had difficulty opening the garbage dumpster at the complex on her
own. On cross-examination, Ms. Daniels conceded the condition of her apartment was
unacceptable from a cleanliness standpoint. She also agreed her apartment was “in poor
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condition.” Id. at 158.
The trial court not only granted K&H’s request for issuance of a writ of restitution,
but issued the landlord final judgment, finding Ms. Daniels had failed to properly clean
and maintain the premises as alleged. The court found there had been “substantial or
repeated and unreasonable interference with the use and enjoyment of the premises by
the landlord, not necessarily other tenants.” RP (Feb. 22, 2022) at 210. The trial court
did not find waste or nuisance, concluding there were unresolved issues of fact. With
respect to Ms. Daniels’s affirmative defense regarding her disability, the court concluded
K&H was entitled to “third party verification” of Ms. Daniels’s disability and need for
accommodation and that Ms. Daniels’s requested accommodation was “not reasonable
in light of [her] past conduct.” CP at 215, 218.
The court issued an order and judgment granting issuance of a writ of restitution,
restoring K&H to possession of the premises, and a final judgment. See id. at 219-27.
Ms. Daniels moved for reconsideration, reiterating her argument that summary resolution
of K&H’s suit was improper because genuine issues of material fact remained.
Reconsideration was denied and Ms. Daniels filed a timely appeal.
THE UNLAWFUL DETAINER PROCESS
An unlawful detainer action is a statutory proceeding that provides an expedited
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method of resolving the right to possession of leased property and related issues such as
restitution and rent. 4105 1st Ave. S. Invs., LLC v. Green Depot Wash. Pac. Coast, LLC,
179 Wn. App. 777, 785,321 P.3d 254
(2014). Washington’s unlawful detainer process is
set forth in chapter 59.12 RCW and the Residential Landlord-Tenant Act of 1973
(RLTA), chapter 59.18 RCW. Residential tenancies are governed by the RLTA.
However, the procedures set forth in chapter 59.12 RCW, the generalized unlawful
detainer statute, continue to apply unless supplanted by the RLTA. Randy Reynolds &
Assocs., Inc. v. Harmon, 193 Wn.2d 143, 156,437 P.3d 677
(2019). Because chapter
59.12 RCW and the RTLA “are statutes in derogation of the common law,” they are
“strictly construed in favor of the tenant.” Id.
Before initiating an unlawful detainer action, a residential landlord must first
issue a written notice to terminate the tenancy that must be served consistent with
RCW 59.12.040. See RCW 59.18.650(6)(a). The notice must also “[i]dentify the facts
and circumstances known and available to the landlord at the time of the issuance of the
notice that support the cause or causes with enough specificity so as to enable the tenant
to respond and prepare a defense to any incidents alleged.” RCW 59.18.650(6)(b).
Permissible grounds for termination of a residential tenancy are set forth in
RCW 59.18.650(2). Two such grounds are relevant here. A tenant may be evicted for
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“substantial breach” of a material lease obligation, so long as the tenant is given 10 days
to cure. RCW 59.18.650(2)(b). Eviction may also be premised on “waste,” “nuisance,”
“unlawful activity that affects the use and enjoyment of the premises,” or “other
substantial or repeated and unreasonable interference with the use and enjoyment
of the premises by the landlord or neighbors of the tenant,” so long as the tenant is given
at least three days’ notice to quit. RCW 59.18.650(2)(c).
Where a landlord’s notice specifies a tenant has an opportunity to cure a statutory
violation or nonconformance with a lease obligation, the notice “expire[s] after sixty days
unless the landlord pursues any remedy under” the RLTA. RCW 59.18.190.
A landlord may file an action for unlawful detainer if the tenant remains in
possession of the premises in violation of the terms of the landlord’s notice. See Randy
Reynolds, 193 Wn.2d at 156. To physically evict the tenant, “a landlord may apply for a
writ of restitution at the same time as commencing the action or at any time thereafter.”
Id. at 157. Under the RLTA, the court will not enter an order directing the issuance of a
writ of restitution without first conducting a show cause hearing. RCW 59.18.370-.380.
A show cause hearing is a summary proceeding to determine the question of
possession pending suit; it is not a final determination of the parties’ rights. Randy
Reynolds, 193 Wn.2d at 157(quoting Carlstrom v. Hanline,98 Wn. App. 780, 788
, 990
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P.2d 986 (2000)). “At the show cause hearing, the court will determine if the landlord is
entitled to a writ of restitution before a trial on the complaint and answer.” Randy
Reynolds, 193 Wn.2d at 157 (citing RCW 59.18.380). This opportunity for immediate
temporary relief makes the show cause process similar to a preliminary injunction
proceeding. See Faciszewski v. Brown, 187 Wn.2d 308, 315 n.4,386 P.3d 711
(2016).
A show cause hearing is a summary proceeding, but it is also fairly substantial.
At the hearing, “[t]he court shall examine the parties and witnesses orally to ascertain
the merits” of the case. RCW 59.18.380. The rules of evidence apply. Pleasant, 126 Wn.
App. at 392. The court may restore the landlord to possession at the close of the hearing if
it appears the landlord will likely prevail on the merits. See Webster v. Litz, 18 Wn. App.
2d 248, 250, 252-53,491 P.3d 171
(2021) (citing RCW 59.18.380). However, if the
landlord does not convince the court that it is likely to succeed and therefore entitled to
immediate possession, the court must deny the writ of restitution and hold an expedited
trial within 30 days. See Meadow Park Garden Assocs. v. Canley, 54 Wn. App. 371,
373-74,773 P.2d 875
(1989) (citing former RCW 59.18.380 (1973)).
Even if a landlord convinces the court of a likelihood of success on the merits and
obtains a writ of restitution, trial may still be necessary. See IBF, LLC v. Heuft, 141 Wn.
App. 624, 634-35,174 P.3d 95
(2007); see also Webster, 18 Wn. App. 2d at 256 (noting
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the issue of possession pending trial “is entirely distinct from the final resolution” of the
parties’ rights). There is a distinction between possession and the right to possession.
Pleasant, 126 Wn. App. at 387. Similar to the summary judgment context, if a tenant
raises “a genuine issue of . . . material fact” pertaining to a defense against eviction, the
case must go to trial, even if the tenant has temporarily lost possession pursuant to a writ
of restitution. RCW 59.18.380; see also Faciszewski, 187 Wn.2d at 315 n.4. The right to
trial is by jury unless waived. RCW 59.12.130.
ANALYSIS
Operative notices
The parties dispute which presuit notices remained viable at the time K&H
initiated the unlawful detainer action on January 10, 2022. According to K&H, suit was
based on the November 3 notice to comply or vacate and the December 27 notice to quit
and vacate. Ms. Daniels counters that the November 3 notice expired after 60 days
pursuant to RCW 59.18.190. Thus, the only operative notice was the one issued on
December 27. We agree with Ms. Daniels.
Under RCW 59.18.190, a notice giving a tenant the opportunity to remedy
nonconformance with a rental requirement expires after 60 days “unless the landlord
pursues any remedy under” the RLTA during that time period. The November 3 notice
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to comply or vacate stated Ms. Daniels was in violation of her lease obligations and gave
her 10 days to remedy her nonconformance. Thus, RCW 59.18.190 was applicable and
K&H was required to pursue a remedy within 60 days.
K&H argues it acted on the November 3 notice within 60 days because it issued a
notice to quit and vacate on December 27. K&H appears to claim that issuing a notice to
quit and vacate is a remedy under the RLTA. We disagree with this assessment.
A “remedy” is generally defined as something “a court can do for a litigant who
has been wronged.” DOUGLAS LAYCOCK & RICHARD L. HASEN, MODERN AMERICAN
REMEDIES: CASES AND MATERIALS 1 (5th ed. 2019). The most common remedies are
damages and injunctions. Id.; see also BLACK’S LAW DICTIONARY 1547 (11th ed. 2019)
(A “remedy” is a means of enforcing rights or redressing wrongs through legal or
equitable relief.).
Under the RLTA, the remedies a court may provide to a party include recovery
of possession, related damages, and attorney fees. See RCW 59.18.290. The RLTA
recognizes a landlord’s remedy to independently resolve certain tenant-caused defects
in a rental unit at cost to the tenant, so long as there has first been adequate notice.
See RCW 59.18.180(1). However, landlords are not authorized to engage in self-help
evictions. See Gray v. Pierce County Hous. Auth., 123 Wn. App. 744, 757,97 P.3d 26
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(2004) (“[N]o landlord . . . may ever use nonjudicial, self-help methods to remove a
tenant.”).
A landlord’s service of a notice to terminate a tenancy is not a remedy. It is a
legal prerequisite to avail oneself of the superior court’s jurisdiction. See Hall v.
Feigenbaum, 178 Wn. App. 811, 819,319 P.3d 61
(2014). Because K&H did not pursue
a remedy under the RLTA within 60 days of providing Ms. Daniels with a notice to cure
or vacate under RCW 59.18.650(2)(b), the November 3 notice expired. The only notice
still operative by the time K&H filed suit on January 10, 2022, was the one dated
December 27, 2021.
Sufficiency of the December 27 notice
The December 27 notice was issued pursuant to RCW 59.18.650(2)(c), 2 which
allows a landlord to terminate a tenancy with three days’ notice based on “waste,”
“nuisance,” “unlawful activity that affects the use and enjoyment of the premises,” or
2
The notice also cited RCW 59.18.650(2)(b), which authorizes a landlord to
terminate a tenancy based on a “substantial breach” of a material lease term. However,
subsection (2)(b) requires a tenant be given 10 days to cure their noncompliance. Because
the December 27 notice did not provide such a cure period, it cannot fairly be read as
invoking subsection (2)(b). See Christensen v. Ellsworth, 162 Wn.2d 365, 372,173 P.3d 228
(2007) (noting the time and manner requirements of notice demand strict
compliance). Thus, subsection (2)(c) was K&H’s only viable cause for eviction.
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“other substantial or repeated and unreasonable interference with the use and enjoyment
of the premises by the landlord or neighbors of the tenant.”
As recounted above, the December 27 notice was quite lengthy. It cited all four
bases for termination under RCW 59.18.650(2)(c). It also included a detailed summary of
Ms. Daniels’s tenancy, including recitations of the other six notices that had been issued
since August 24, 2020.
Ms. Daniels criticizes the December 27 notice as both over- and underinclusive.
According to Ms. Daniels, the notice should not have included all four bases for eviction
under subsection (2)(c), and instead should have clarified which of the four bases K&H
was relying on. Ms. Daniels also complains the notice should have included an
identification of who was injured by her alleged misconduct, be it a specific neighboring
tenant or the landlord. We disagree with these criticisms.
A challenge to the adequacy of notice presents a mixed question of law and fact,
reviewed de novo. Hall, 178 Wn. App. at 819. Washington courts require landlords to
strictly comply with timing and manner requirements of notice. Id. at 818. But when it
comes to form and content, substantial compliance is sufficient. Marsh-McLennan Bldg.,
Inc. v. Clapp, 96 Wn. App. 636, 640 n.1,980 P.2d 311
(1999). In terms of substance,
RCW 59.18.650(6)(b) requires any notice under subsection (2) of the statute to “[i]dentify
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the facts and circumstances known and available to the landlord . . . that support the cause
or causes with enough specificity so as to enable the tenant to respond and prepare a
defense to any incidents alleged.” (Emphasis added.) The critical question here is whether
the landlord’s notice provided enough facts to allow Ms. Daniels to “effectively rebut the
conclusion reached” by K&H. Hous. Auth. v. Pyrtle, 167 Ga. App. 181, 182,306 S.E.2d 9
(1983); see Swords to Plowshares v. Smith, 294 F. Supp. 2d 1067, 1072 (N.D. Cal. 2002)
(“[N]otice must enable [a] tenant to prepare a defense or rebuttal evidence . . . .”). 3
We disagree with Ms. Daniels that K&H should have been clearer regarding the
four bases for eviction set forth in RCW 59.18.650(2)(c). A fair reading of the notice is
that K&H believed Ms. Daniels may have violated any of the four statutory clauses, while
recognizing that only one such violation would be necessary to terminate her tenancy.
Moreover, the real question regarding notice is whether Ms. Daniels understood the
3
The “specificity” requirement in RCW 59.18.650(6)(b), effective since May
2021, has not yet been interpreted by an appellate court. Ms. Daniels points out that
federal regulations governing evictions from federally subsidized projects impose a
comparable requirement. See 24 C.F.R. § 247.4(a)(2) (“The landlord’s determination
to terminate the tenancy shall . . . state the reasons for the landlord’s action with enough
specificity so as to enable the tenant to prepare a defense . . . .” (emphasis added)).
Given the scarcity of Washington authority on point, we may look to foreign cases
interpreting such federal regulations, such as Pyrtle and Swords to Plowshares, for
guidance. See In re Welfare of Colyer, 99 Wn.2d 114, 119,660 P.2d 738
(1983).
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factual allegations against her. See Tacoma Rescue Mission v. Stewart, 155 Wn. App.
250, 255,228 P.3d 1289
(2010); see also RCW 59.18.650(6)(b) (requiring landlords
to “identify . . . facts and circumstances,” rather than legal causes of action, with
“specificity”) (emphasis added). Here, it was abundantly clear K&H sought to evict
Ms. Daniels because she failed to keep her apartment clean and sanitary, as documented
by the various inspections of her property and repeated notices to cure. K&H’s notice
sufficiently apprised Ms. Daniels of the facts that K&H alleged rose to the level of waste,
nuisance, or interference with enjoyment of the property. We do not fault K&H for
including all four components of RCW 59.18.650(2)(c) in its notice. 4
Ms. Daniels also argues the notice to quit was insufficiently specific as to whose
rights were allegedly being interfered with by her conduct. An eviction can be justified
under RCW 59.18.650(2)(c) based on “substantial or repeated and unreasonable
interference with the use and enjoyment of the premises by the landlord or neighbors
of the tenant.” But, as noted by Ms. Daniels, K&H’s notice did not specify whether
4
Nor are we persuaded by Ms. Daniels’s argument that the notice’s use of slashes
and the phrase “and/or” rendered it impermissibly vague. Cf. Batchelor v. Madison Park
Corp., 25 Wn.2d 907, 924-25,172 P.2d 268
(1946).
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the victim of Ms. Daniels’s conduct was the landlord or a neighbor and, if a neighbor,
which one.
We disagree that identification of a specific victim was necessary to provide
Ms. Daniels sufficient notice under RCW 59.18.650(2)(c). To be sure, in some cases,
identifying victims is logically necessary to afford a tenant a meaningful ability to rebut
allegations, such as where the tenant’s purportedly violative conduct is alleged threats,
harassment, or violence directed at specific people. See, e.g., Swords to Plowshares,
294 F. Supp. 2d at 1068n.1; Tacoma Rescue Mission,155 Wn. App. at 256-57
; Harris v.
Paris Hous. Auth., 632 S.W.3d 167, 173 (Tex. App. 2021). But here, the information
supplied to Ms. Daniels made clear that K&H was relying on the generally unsanitary
condition of her apartment, conduct that could plausibly impair others’ enjoyment even
when discrete victims are difficult to identify. See Tacoma Rescue Mission, 155 Wn. App.
at 257 (faulting landlord for failing to name in notice the individuals who reported
tenant’s excessive noise and threats); see also Midland Mgmt. Co. v. Helgason, 241 Ill.
App. 3d 899, 911, 913,608 N.E.2d 643
(1993) (notice sufficient where it apprised tenant
they were being evicted for allowing “careless leakage of water”), rev’d on other
grounds, 158 Ill.2d 98,630 N.E.2d 836
(1994). And the condition of Ms. Daniels’s
apartment had been extensively documented in prior notices, as referenced in the
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December 27 notice. See Martinez v. Hous. Auth., 264 Ga. App. 282, 286-87,590 S.E.2d 245
(2003) (The notice was sufficiently specific where it cited the tenant’s “‘history of
lease violations and warnings’” and referred to those prior warnings.). K&H’s notice
therefore gave Ms. Daniels a sufficient opportunity to defend against its allegations.
Whether the court should have ordered a trial
The parties debate whether Ms. Daniels was entitled to a trial at the conclusion
of the show cause hearing. As previously explained, while a show cause hearing resolves
the preliminary question of who is entitled to possession of the premises during suit, it
does not necessarily resolve questions regarding the ultimate right to possession or other
remedies. Randy Reynolds, 193 Wn.2d at 157. Even if a landlord obtains preliminary
success through a writ of restitution, trial on the right of possession must be ordered
if the tenant raises genuine issues of material fact pertaining to a defense or set-off.
RCW 59.18.380.
1. K&H’s proof of grounds for eviction
Pursuant to the December 27 notice, K&H alleged at the show cause hearing that
Ms. Daniels was subject to eviction under RCW 59.18.650(2)(c). This provision provides
four possible bases for eviction: (1) waste, (2) nuisance, (3) unlawful activity that affects
the use and enjoyment of the premises, and (4) substantial or repeated and unreasonable
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interference with the use and enjoyment of the premises by the landlord or neighbors.
The trial court issued judgment under the fourth clause of RCW 59.18.650(2)(c). This is
the only basis for eviction that K&H defends on appeal. We therefore focus our review
on whether Ms. Daniels should have been afforded a trial on this allegation.
The standard of review governing this inquiry is not well developed. In the recent
case of Tedford v. Guy, Division Two of this court stated we review a trial court’s
decision on whether to order a trial for abuse of discretion. 13 Wn. App. 2d 1, 16,
462 P.3d 869 (2020). But Tedford’s statement does not draw from the language of the
applicable statute, nor is it based on Supreme Court precedent. It is not binding on us.
See In re Pers. Restraint of Arnold, 190 Wn.2d 136, 154,410 P.3d 1133
(2018). The
wording of the applicable statute indicates a tenant is entitled to a trial so long as they
raise a “genuine issue” of “material fact.” RCW 59.18.380. This is nearly the identical
language that governs summary judgment. See CR 56(c). We review summary judgment
orders de novo. Staples v. Allstate Ins. Co., 176 Wn.2d 404, 410,295 P.3d 201
(2013).
Thus, it appears something close to de novo review should apply, at least when a tenant
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denies the landlord’s grounds for eviction or raises an affirmative defense. 5
Ms. Daniels disputes that her conduct substantially or repeatedly and unreasonably
interfered with K&H’s use and enjoyment of the premises. She makes two arguments.
We address each in turn.
First, Ms. Daniels notes that the RLTA defines “premises” as property “held
out for the use of tenants.” RCW 59.18.030(22). Thus, she argues that in order for a
tenant’s conduct to interfere with a landlord’s “use and enjoyment of the premises,”
the landlord must also be a tenant. RCW 59.18.650(2)(c) (emphasis added). We disagree.
Ms. Daniels’s proposed reading of the statute strains its text. See White v. Salvation Army,
118 Wn. App. 272, 279,75 P.3d 990
(2003) (statutes are construed to avoid absurd
results). Just because a landlord holds out their premises for the use of others does not
mean the landlord abandons their own right or ability to enjoy their property. See Rental
Hous. Ass’n v. City of Seattle, 22 Wn. App. 2d 426, 452-53,512 P.3d 545
(2022) (Out-of-
5
The statute indicates a trial is proper if “there is a genuine issue of a material fact
pertaining to a legal or equitable defense or set-off.” RCW 59.18.380 (emphasis added).
A tenant’s legal defense might be a claim that the landlord’s basis for eviction is untrue.
See, e.g., Webster, 18 Wn. App. 2d at 256-57. Or the tenant may have an affirmative
defense that admits the landlord’s allegations, but nevertheless claims a right of
possession. See, e.g., Josephinium Assocs. v. Kahli, 111 Wn. App. 617, 621,45 P.3d 627
(2002). Either way, the statute suggests the tenant has a right to a trial if the tenant has
raised a genuine issue of material fact.
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possession landlords retain a property interest protected by due process principles.). A
landlord may enjoy their property as an investment free from unreasonable risk. By failing
to keep an apartment in a clean and sanitary condition, a tenant may interfere with their
landlord’s right to a secure investment, insofar as they risk permanent damage to the
apartment or disturbances to the landlord’s other tenants.
Second, Ms. Daniels argues genuine issues of material fact remain as to whether
her conduct was a sufficiently severe interference with K&H’s use and enjoyment of the
property. We note that RCW 59.18.650(2)(c)’s phrase, “unreasonable interference with
the use and enjoyment of the premises,” echoes a common definition of “nuisance.”
See Moore v. Steve’s Outboard Serv., 182 Wn.2d 151, 155,339 P.3d 169
(2014) (“[A]n
activity is a nuisance only when it ‘interferes unreasonably with other persons’ use and
enjoyment of their property.’”) (quoting Tiegs v. Watts, 135 Wn.2d 1, 13,954 P.2d 877
(1988)) (plurality opinion). However, RCW 59.18.650(2)(c)’s use of this terminology
must be distinct from the concept of nuisance, since subsection (2)(c) also lists “nuisance”
as a separate basis for eviction. See State v. K.L.B., 180 Wn.2d 735, 742,328 P.3d 886
(2014) (Statutes ordinarily must not be read in a manner that leaves any portion
meaningless or superfluous.). We interpret RCW 59.18.650(2)(c)’s reference to
“interference with the use and enjoyment of the premises,” as referring to either
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“substantial or repeated and unreasonable” conduct that approximates a nuisance, even
if the steep standard for a nuisance claim is not quite met.
Reasonableness is typically a question of fact, but a court can resolve a question of
reasonableness “as a matter of law where reasonable minds could come to only one
conclusion.” Lakey v. Puget Sound Energy, Inc., 176 Wn.2d 909, 924,296 P.3d 860
(2013). Here, K&H’s evidence of interference with its enjoyment of the apartment was
not so strong that it could lead to only one conclusion. The evidence certainly revealed
Ms. Daniels’s apartment was significantly unkempt. However, there was no conclusive
evidence her failure to clean the premises had tangibly damaged the property or posed
an imminent threat of such injury. There was evidence of some rodent droppings, but
Ms. Daniels testified that those did not evidence a recent infestation because she had
quelled any problem with mice after the first four months of her tenancy. Nor was there
evidence the condition of her apartment was noticeable to anyone who did not step foot
into the unit.
We disagree with the trial court’s determination that there were no genuine
issues of material fact as to whether K&H had established substantial or repeated
and unreasonable interference with its right to enjoy the property. Trial is required.
As recognized by the trial court’s oral ruling, there are also issues of fact as to other
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components of RCW 59.18.650(2)(c). Thus, the issue at trial will be whether K&H can
establish any grounds for eviction under RCW 59.18.650(2)(c).
2. Affirmative defense—failure to accommodate
Apart from challenging K&H’s proof of its basis for eviction, Ms. Daniels raised
an affirmative defense based on federal and state antidiscrimination law. Specifically,
Ms. Daniels asserted she is disabled due to her age, infirmity, and back conditions.
According to Ms. Daniels, her disability impaired her ability to remedy the problems
giving rise to K&H’s grounds for eviction. Ms. Daniels requested K&H accommodate
her disability by dismissing the current proceedings and giving her time to work with her
attorney to find resources to help her clean and declutter the apartment.
Both federal and state law prohibit landlords from discriminating against disabled
tenants, including the failure to reasonably accommodate a tenant’s disability. 6 42 U.S.C.
§ 3604(f)(2), (3)(B); RCW 49.60.222(1)(f), (2)(b). A tenant’s claim that a landlord has
failed to accommodate their disability may constitute a defense to eviction. Josephinium
6
The federal and Washington provisions requiring reasonable accommodation in
housing are “virtually identical.” Wash. State Hum. Rts. Comm’n v. Hous. Auth., 21 Wn.
App. 2d 978, 987,509 P.3d 319
(2022). Because the Washington and federal statutes are
analogous, authority interpreting the federal statute properly informs our interpretation of
both provisions. Cf. Kumar v. Gate Gourmet, Inc., 180 Wn.2d 481, 491,325 P.3d 193
(2014).
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Assocs. v. Kahli, 111 Wn. App. 617, 626,45 P.3d 627
(2002). The defense can be
asserted so long as the failure to accommodate is germane to the landlord’s claim to the
right to possess the premises. Id.
A tenant raising failure to accommodate as an affirmative defense must show five
elements: (1) they have a “disability” as that term is statutorily defined, (2) their landlord
“knew or reasonably should have known” of the disability, (3) the requested
accommodation “‘may be necessary’ to afford [the tenant] an equal opportunity to use
and enjoy their dwelling”, and (4) the landlord denied the request. Giebeler v. M&B
Assocs., 343 F.3d 1143, 1147 (9th Cir. 2003) (quoting United States v. Cal. Mobile Home
Park Mgmt. Co., 107 F.3d 1374, 1380 (9th Cir. 1997)). Further, the tenant is not entitled
to their requested accommodation unless it is (5) “reasonable.” Id. at 1148.
The evidence here readily supports the possibility of a jury verdict for Ms. Daniels
on the first and fourth elements. Ms. Daniels has presented evidence—in the form of
medical records and sworn testimony—that she has medical conditions constituting a
disability. And K&H undisputedly denied Ms. Daniels’s requested accommodation. Thus,
the parties’ dispute centers on whether Ms. Daniels sufficiently showed K&H knew or
reasonably should have known about her disability, whether her disability is related to the
grounds for unlawful detainer asserted by K&H, and whether Ms. Daniels’s requested
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accommodation was reasonable.
a. Landlord’s knowledge or constructive knowledge of tenant’s
disability
The trial court ruled in K&H’s favor as to the knowledge element on the basis that
Ms. Daniels did not provide third-party verification of her disability. But such verification
is not invariably required. While Washington’s Law Against Discrimination (WLAD),
chapter 49.60 RCW, requires an interactive verification process in the employment
context, see RCW 49.60.040(7)(d), there is no similar mandate in the housing context.
Guidance from the United States Department of Justice and United States Department of
Housing and Urban Development states:
If a [tenant]’s disability is obvious, or otherwise known to the [landlord],
and if the need for the requested accommodation is also readily apparent or
known, then the [landlord] may not request any additional information
about the [tenant’s] disability or the disability-related need for the
accommodation.
JOINT STATEMENT OF THE DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT AND
THE DEPARTMENT OF JUSTICE: REASONABLE ACCOMMODATIONS UNDER THE FAIR
HOUSING ACT 12-13 (May 17, 2004) (Joint Statement) (emphasis added),
https://www.justice.gov/sites/default/files/crt/legacy/2010/12/14/joint_statement_ra.pdf
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[https://perma.cc/SG47-BGKG]. 7 Similarly, the Washington State Human Rights
Commission has also recognized that “[i]f a person has a visible disability and their
request is reasonably tied to their disability, then no further verification is needed.”
Wash. State Hum. Rts. Comm’n, Disability in Housing, https://www.hum.wa.gov/fair-
housing/disability-housing (emphasis added).
We agree with Ms. Daniels and amicus curiae the Attorney General of Washington
that third-party verification of a tenant’s disability is unwarranted when a tenant’s
disability is obvious or otherwise known to the landlord.
Ms. Daniels has presented ample evidence of an obvious disability that was known
to her landlord. Not only did Ms. Daniels testify that she told K&H employees about the
disability to her back, it would be obvious to anyone who looked at her that she had a
physical impairment. Although she was not required to do so, Ms. Daniels voluntarily
7
The Joint Statement is a policy statement, rather than an authoritative
interpretation, but it has been recognized as persuasive authority. See, e.g., Bhogaita v.
Altamonte Heights Condo. Ass’n, Inc., 765 F.3d 1277, 1286 n.3 (11th Cir. 2014); Sabal
Palm Condos. of Pine Island Ridge Ass’n, Inc. v. Fischer, 6 F. Supp. 3d 1272, 1286 (S.D.
Fla. 2014); Douglas v. Kriegsfeld Corp., 884 A.2d 1109, 1120, 1122 (D.C. Cir. 2005);
Andover Hous. Auth. v. Shkolnik, 443 Mass. 300, 309 n.14,820 N.E.2d 815
(2005); Kuhn
v. McNary Estates Homeowners Ass’n., Inc., 228 F. Supp. 3d 1142, 1149 (D. Or. 2017).
K&H does not disagree that the Joint Statement should be referenced as persuasive
authority. See Br. of Resp’t at 45.
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furnished medical records in which her physician described her as “markedly kyphotic” 8
along with noting several other physical impairments. Def.’s Ex. 2, at 2 (emphasis added).
Moreover, multiple K&H employees testified they knew Ms. Daniels had problems with
her back because she had told them as much. WLAD broadly defines “impairment" to
include any “condition . . . affecting” an individual’s “musculoskeletal” system.
RCW 49.60.040(7)(c)(i). And an “impairment” is a “disability” when it is “perceived to
exist whether or not it exists in fact.” RCW 49.60.040(7)(a)(iii). Ms. Daniels’s back
problems readily meet this definition, and K&H’s employees were aware of them.
b. Necessity of tenant’s requested accommodation
The trial court also concluded Ms. Daniels should have provided third-party
verification of the connection between her disability and her requested accommodation.
We recognize there are cases where a landlord may require verification of the nexus
between a tenant’s disability and the requested accommodation, even if the disability
itself is obvious. See Joint Statement at 13. But this case is not one where verification was
necessary. K&H’s allegations against Ms. Daniels included concerns that she failed to
unpack boxes, did not remove garbage, and did not regularly clean. No specialized
Kyphosis” is “abnormal backward curvature of the spine.” WEBSTER’S THIRD
8“
NEW INT’L DICTIONARY 1258 (1993).
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knowledge is needed to understand that an elderly person with significant back problems
may have trouble engaging in these tasks. And Ms. Daniels expressly premised her
requested accommodation—a discontinuation of the eviction proceedings—on the fact
that such a discontinuation would give her time to find resources to help her with those
tasks.
The facts were sufficient to require a jury trial on the issue of the necessity of
Ms. Daniels’s requested accommodation.
c. Reasonableness of tenant’s requested accommodation
K&H argues that even if it knew of Ms. Daniels’s disability and the connection
between her disability and requested accommodation, the trial court should be affirmed
because Ms. Daniels has not raised a material issue of fact regarding the reasonableness
of her accommodation request. Generally, the reasonableness of an accommodation is a
question of fact demanding case-by-case scrutiny. See Jankowski Lee & Assocs. v.
Cisneros, 91 F.3d 891, 896 (7th Cir. 1996). And questions of fact are usually proper jury
issues. Lascheid v. City of Kennewick, 137 Wn. App. 633, 642,154 P.3d 307
(2007).
However, a trial court may resolve reasonableness as a matter of law if reasonable minds
could come to only one conclusion. Boyle v. Leech, 7 Wn. App. 2d 535, 539,436 P.3d 393
(2019). “An accommodation is reasonable . . . if it does not cause a ‘fundamental
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alteration in the nature of a [landlord’s] program’ or ‘undue financial and administrative
burdens.’” Josephinium Assocs., 111 Wn. App. at 623 (quoting Groner v. Golden Gate
Gardens Apartments, 250 F.3d 1039, 1044 (6th Cir. 2001)).
Ms. Daniels’s accommodation request was that K&H stop the eviction proceedings
to give her time to work with her attorney to find services to help clean her apartment.
Other courts have recognized that a request for “additional time to clean” can constitute
a reasonable request. McGary v. City of Portland, 386 F.3d 1259, 1261, 1264, 1269-70
(9th Cir. 2004); see Douglas v. Kriegsfeld Corp., 884 A.2d 1109, 1120 (D.C. Cir. 2005)
(recognizing brief stay in eviction proceedings to allow additional time for disabled tenant
to conduct cleaning could constitute a reasonable accommodation); see also Andover
Hous. Auth. v. Shkolnik, 443 Mass. 300, 311-12,820 N.E.2d 815
(2005) (rejecting the
idea that “indefinite” requests for more time are reasonable, but acknowledging that
delaying the typical eviction timetable can constitute a reasonable accommodation where
“no neighbors [are] seriously disturbed by the tenants’ behavior”).
Furthermore, we note that a reasonable accommodation may be requested up until
the date of physical eviction. See Radecki v. Joura, 114 F.3d 115, 116 (8th Cir. 1997);
Douglas, 884 A.2d at 1121 (“[A] reasonable accommodation defense will be timely until
the proverbial last minute.”). This is consistent with landlords’ obligation to reasonably
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make accommodations to not only their “rules” but also their “policies, practices, or
services.” RCW 49.60.222(2)(b) (emphasis added); see Douglas, 884 A.2d at 1127.
We recognize that halting this unlawful detainer action would have imposed a
burden on K&H. 9 But those burdens should have been weighed—by a jury—against the
benefit to Ms. Daniels. See Josephinium Assocs., 111 Wn. App. at 623-24; Marthon v.
Maple Grove Condo. Ass’n, 101 F. Supp. 2d 1041, 1051 (N.D. Ill. 2000).
For the reasons set forth above, Ms. Daniels has presented sufficient facts to allow
a jury to decide whether her requested accommodation was reasonable. This affirmative
defense was prematurely rejected.
9
Ms. Daniels contends that, even if K&H found Ms. Daniels’s requested
accommodation vague, objectionable, or flatly unreasonable, K&H should have engaged
Ms. Daniels in a dialogue to seek clarification or explore other possible solutions. We
acknowledge there is a split among legal authorities on whether such a dialogue is
required by the relevant statutes, or merely encouraged. See Joint Statement at 7
(explaining that landlords “should” open a dialogue with tenants who propose an
unreasonable accommodation, and that if there is an alternative accommodation that
would meet a tenant’s needs, the landlord “must” grant it); compare Howard v. HMK
Holdings, LLC, 988 F.3d 1185, 1193-94(9th Cir. 2021), and Groner,250 F.3d at 1047
,
with Douglas, 884 A.2d at 1122 & n.22, 1143-44, and Jankowski Lee & Assocs., 91 F.3d
at 896. At this juncture, we decline to endorse either side of this split, because we
conclude the reasonableness of Ms. Daniels’s accommodation should have reached a jury
either way.
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ATTORNEY FEES AND COSTS
Ms. Daniels asks for an award of attorney fees and costs, citing RCW 59.18.290
and RAP 18.1. This request is premature. If Ms. Daniels ultimately prevails on remand,
she may request attorney fees, to and including fees and costs associated with her appeal.
See Faciszewski, 187 Wn.2d at 324.
CONCLUSION
The trial court prematurely issued final judgment in favor of K&H after
granting the request for writ of restitution at the show cause hearing. Because there
are genuine issues of material fact as to whether Ms. Daniels is subject to eviction
under RCW 59.18.650(2)(c) and, alternatively, whether she was entitled to a reasonable
accommodation based on a disability, this matter should have been set for trial.
The final judgment in favor of K&H is reversed. This matter is remanded for trial,
consistent with the terms of this opinion.
_________________________________
Pennell, J.
WE CONCUR:
______________________________ _________________________________
Lawrence-Berrey, A.C.J. Staab, J.
33