Arguing Your Eviction in Court

December 18, 2012

A common question that landlords ask me is "what possible defenses can my tenants raise to the eviction? Shouldn't the fact that they owe rent be enough to evict?" 

Unfortunately, it is not that simple.  A tenant can assert a variety of defenses to an eviction action.  These defenses can be raised in the tenant's written answer or verbally at a show cause hearing. The following are potential issues that a landlord should prepare for

A. Procedural Defenses

Procedural requirements for unlawful detainer actions must be carefully followed and strictly construed. A tenant can raise several procedural defenses if the landlord failed to follow the requirements.

1. Was tenant served  proper eviction notice?  Service of a proper eviction notice is a jurisdictional prerequisite to bring an unlawful detainer action.  The notices include: a 3 day pay or vacate3 day nuisance, 10 days to comply with lease or 20 day notice to terminate.   Tenant is entitled to service of the notice as required by statute.  This involves either personal service on the tenant or mailing  and posting on the door.  An extra day must be added to the notice period if the notice is mailed. RCW 59.12.030 59.12.040

2. Did tenant receive a proper Summons and Complaint? If the summons does not comply with the statutory requirements, the court does not have jurisdiction to proceed. An Eviction Summons must be returnable on a designated date betwen seven and thirty days from the date of service. The Summons must contain certain information  required by statute, including a street address/fax for delivery or a response for the plaintif or the plaintiffs attorney. A summons that fails to inform the tenant of his right to respond by is improper.  59.18.365 of RCW 59.12.070 and .080

3. Was the Summons properly served? The Summons must be served on a tenant in the same manner as a regular civil action. The summons must either be personally served on the tenant or a copy must be left at the tenant’s residence with a resident of suitable age. Defense of insufficient service of process is not waived by filing a notice of appearance or if it is asserted in a responsive pleading.  CR 4 RCW 4.28.080-090 CR 4(d)(5)

4. If no proper service, was there Alternative Service?  If a process server is unable to personally serve the tenant, the court may authorize alternative service of the summons by posting and mailing.  To obtain an order of alternative service, the process server must demonstrate that he exercise due diligence in attempts to personally serve the tenant. There must be an affidavit describing the attempts at service and belief that the tenant can not be found. Posting and mailing by regular and certified mail must occur not less than nine days from the return date in the summons. Note: Alternative service limit’s the courts’s jurisdiction to restoring possession of the property. No money judgment may be entered against the def until personal jurisdiction is acquired. RCW 59.18.055

Substantive Defenses  

5. Is tenant still in possession of the premises? Principle purpose of unlawful detainer action is to determine the right of possession. If the tenant has moved out prior to commencement of the action, the complaint should be dismissed. If issues of right to possession is resolved after service the complaint, the parties can convert the action to an ordinary civil suit for damages.

6. Does tenant have an ownership claim?  Unlawful Detainer actions only apply to to landlord-tenant relationships. A Tenant can assert an ownership claim as an affirmative defense in an unlawful detainer action. In cases where there is no landlord tenant relationship but there is dispute as ownership, a party must bring an ejectment action rather than an unlawful detainer action.  RCW 7.28

7. Is the eviction retaliatory?  A landlord cannot evict tenants in retaliation for exercising their tenant rights or for making complaints to government authorities regarding code or repair violations.  A tenant can also assert a retaliation defense if the teanant falls behind on rent after the landlord increases rent.  If the landlord initiated the eviction or rent increase within 90 days after the tenant engages in the protected activity, there is a rebuttable presumption that the action is retaliatory.  RCW 59.18.250, 59.18.240(1).

8. Is the Eviction discriminatory? A Tenant can assert the eviction action was based on discrimination.  A tenant can also assert a discrimination defense if the teanant falls behind on rent after the landlord increases rent. A Discrimination claim would include a Landlord's failure to reasonably accommodate a disabled tenant. Such Reasonable accommodation request for a tenant's disability can be requested by the tenant at anytime before a physical eviction occurred.  Also See Washington Law Against Discrimination 42 U.S.C. 3604

Other Defenses:  

9. Are there defects on the premises?  Are the premises uninhabitable ?  A Tenant who is being evicted for non-payment of rent may claim that rent should be reduced or excused because the Landlord failed to make needed repairs.  This "Warranty of hability" defense is based on case law, not statute. The principle is that landlords have an implied duty to provide a livable dwelling for the tenant. The tenant is not required to give written notice to the landlord of the defects, nor does the tenant have to be current in rent to assert the defense.

  In Foisy v. Wyman, The Court describes a two step process to determine what amount of rent should be "offset" by the defective condition:   First, Was the unit totally or partially uninhabitable during the tenancy? Second, what should be the reduction in rental value for the unit?  If tenant's obligation to pay rent is totally offset by the defective conditions, then the unlawful detainer action should be dismissed. More commonly, the court will find that the repair problems justify only a partial reduction in rent, and if the tenant withholds more than this amount, there will be a judgment for the Landlord. Foisy  v. Wyman 83 Wn2d 22 (1973).&

10.  Did the landlord waive the action by accepting rent?   Equitable defenses are expressly authorized in unlawful detainer actions. These would include estoppel, laches and waiver.   Acceptance of rent after the eviction action begins constitutes a waiver by the landlord, and halts the eviction action.

11. Do I have any counterclaims?  The Law permits tenant to assert any set off against the landlord arising out of the tenancy.  Tenants should be able to claim any damages resulting from the landlord's failure to perform any of its contractual or statutory obligations under the lease or statutory obligations.  RCW 59.18.400

12. Are there any local ordinances that protect me? Some local governments have adopted regulations that provide additional protections for tenants and may may be the basis for an affirmative defense. Seattle has adopted a local ordinance that requires that all landlords have “just cause” to terminate a residential tenancy. See Seattle Municipal Code SMC 22.206.160(C)). 

Additional Resources

Residential Landlord Tenant Act:

Seattle Legal Help


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