The Eviction Process from Start to Finish – Part 2

d. Common Tenant Defenses

Generally, the defendant may submit a written answer to the court by the date set forth in the summons, or may appear at the show cause hearing to present their defense orally. The tenant may defend against an unlawful detainer action on both procedural and substantive grounds.

i. Procedural Defenses

Because the UDA is in derogation of the common law, the unique unlawful detainer procedural requirements are strictly construed in favor of the tenant. Kessler, 3 Wn. App. at 123. Dismissal is common even for minor procedural errors. See Community Invs., Ltd. v. Safeway Stores, Inc., 36 Wn. App. 34, 37-8, 671 P.2d 289 (1983) (failure to serve proper notice of unlawful detainer); Hinkhouse v. Wacker, 112 Wash. 253, 257, 191 P. 881 (1920) (improper service of unlawful detainer notice); Draper Mach. Works v. Hagberg, 34 Wn. App. 483, 489-90, 663 P.2d 141 (1983) (improper form of summons); Dobbins v. Mendoza, 88 Wn. App. 862, 872-3, 947 P.2d 1229 (1997) (improper service of summons and due diligence of service in general).

ii. Substantive Defenses

Generally, substantive defenses, counterclaims, and setoffs must be related to the issue of possession or excuse the breach on which the action is based. See, e.g., Heaverlo v. Keico Indus., Inc., 80 Wn. App. 724, 728, 911 P.2d 406 (1996) citing Munden v. Hazelrigg, supra.

For decades, Washington courts voiced a rule that the defendant in an unlawful detainer action could not assert set-offs or counterclaims. Young v. Riley, 59 Wn.2d 50, 52, 365 P.2d 769 (1961) (there is “an unbroken line of decision that in such proceeding the defendant may not assert a set-off or counterclaim”). This rule, however, was criticized as inaccurately representing the true state of the law, see Stoebuck, The Law Between Landlord and Tenant in Washington: Part II, 49 WASH. L. REV. 1013, 1074 (1974), and in practice, many counterclaims and set-offs were allowed in unlawful detainer proceedings, provided that they related to the issue of possession. See, e.g., Andersonian Inv. Co. v. Wade, 108 Wash. 373, 378-9, 184 P. 327 (1919) (both legal and equitable defenses may be raised so long as they justify the breach and possession was obtained legally); Income Properties Inv. Corp. v. Trefethen, 155 Wash. 493, 508-9, 284 P. 782 (1930) (breach of right to peaceful enjoyment can be brought in unlawful detainer case).

This inconsistency was identified in Foisy v. Wyman, where the Washington State Supreme Court clarified that the affirmative defense of breach of warranty of habitability was available in an unlawful detainer action because it “goes directly to the issue of rent due and owing, which is one of the basic issues in an unlawful detainer action ….” 83 Wn.2d 22, 31-2, 515 P.2d 160 (1973). The modern rule was further explained in Munden v. Hazlerigg, where the court held that “[a]n exception to the general rule is made when the counterclaim, affirmative equitable defense, or set-off is based on facts which excuse a tenant’s breach.” 105 Wn.2d at 45 (quotations omitted). Under this rule, many more set-offs, counterclaims, and affirmative defenses have been allowed in unlawful detainer actions. See Lee v. Sauvage, 38 Wn. App. 699, 703, 689 P.2d 404 (1984) (Seattle’s houseboat ordinance is a proper legal defense in a residential unlawful detainer case); Port of Longview v. International Raw Materials, Ltd., 96 Wn. App. 431, 438, 979 P.2d 917 (1999) (First Amendment right of free speech related to possession of property in case where tenant alleged eviction for lodging an environmental complaint against the Port Authority); see also Josephinium Assocs. v. Kahli, 111 Wn. App. 617, 626, 45 P.3d 627 (2002) (unlawful discrimination allowed as a defense).

However, defenses, counterclaims, and set-offs which do not relate directly to possession or excuse the tenant’s duty to pay rent will not be allowed. Munden, 105 Wn.2d at 45 (damage to an automobile from a rockslide is an improper claim); Sprincin, 84 Wn. App. at 68 (breach of contract for failure to maintain commercial space was “not grounded in facts which would excuse its failure to pay rent”); Heaverlo, 80 Wn. App. at 733 (breach of contract claim for alleged failure to extend purchase option at the end of the lease term did not justify non-payment of rent); Savings Bank of Puget Sound v. Mink, 49 Wn. App. 204, 209, 741 P.2d 1043 (1987) (intentional infliction of emotional distress, defamation, slander of title, abuse of process, malicious prosecution, usury and unjust enrichment, outrage, and fraud held inappropriate for an unlawful detainer hearing); First Union Management, Inc. v. Slack, 36 Wn. App. 849, 852, 679 P.2d 936 (1984) (counterclaim for damages for failure to respond to tenant inquiries regarding assignment held outside the scope of the unlawful detainer action). Additionally, claims for breach of contract, outrage, or other torts associated with the relationship but not possession cannot be decided in an unlawful detainer action. Phillips v. Hardwick, 29 Wn. App. 382, 386, 628 P.2d 506 (1981).

The wary plaintiff-landlord, however, will be sure to bring any claim that potentially could be related to possession, as a court in a later civil action may determine that the claim has been waived if it properly could have been brought in the unlawful detainer action. See Id. at 386 (doctrine of res judicata did not prevent plaintiff from raising breach of contract, outrage, and intentional infliction of emotional distress complaint in civil suit after unlawful detainer action was dismissed); Angel v. Ladas, 143 Wash. 622, 626, 255 P. 945 (1927) (the unlawful detainer action is res judicata on questions that are resolved therein).

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