First published in RHA Current

 

QUESTION:

“A tenant in my building on the fourth floor pulled up the stopper on her bathroom sink and turned on the water in order to fill the sink. She then left the room left it running and then fell asleep. The water was on and leaking through the night. It severely damaged her unit and all three units below. She does not have renter’s insurance. 

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I have made an insurance claim with my insurance company and a water mitigation company has been working on the units. They are testing materials before demolition. 

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My question is: what is the tenant legally responsible for in terms of the cost of the damage. All four units will need possibly over $1,700 of work per unit plus all of my other tenants are inconvenienced and may be displaced for several days for demolition etc. What is fair? Can she be charged for my deductible?”

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ANSWER:

The underlying issue in analyzing this question is “who is responsible?”  The party who is responsible has to pay for the damages.  There is no question here the tenant is responsible.  The Residential Landlord-Tenant Act requires tenants to properly operate the plumbing fixtures provided by the landlord. RCW 59.18.130(3).  While the mistake was unintentional, allowing the sink to overflow was negligent and an improper use of the fixture.  Even if there was no written lease between the landlord and the tenant, the law imposes this duty on the tenant.

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There might be an exception if the clog was somehow attributable to the landlord.  For example, if the tenant had notified the landlord the sink was prone to clogs and the landlord took no action, there might be an argument that the landlord is partially responsible.  Here, the tenant stoppered the sink and left the water run unattended for many hours.  A clogged sink will not help the tenant escape responsibility where the tenant admits she made it watertight.

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The next question is “who pays?”  Getting the problem fixed is the responsibility of the landlord.  Even though the tenant caused the damage, the landlord must keep the premises habitable.  The landlord may then require the tenant to reimburse for the costs.  

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The final question is “how much?”  The landlord may look to the tenant for the cost of bringing the condition of the property to what it was before the incident.  The landlord may have additional damages as other tenants were inconvenienced and possibly displaced while repairs are ongoing.  The tenant is responsible for all expenses that are incurred as a result of the flooding.  

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The landlord may not charge the tenant for upgrades.  Also a landlord must “mitigate” damages, meaning the landlord should do what they can to keep the cost of the repairs reasonable.  If the landlord accepts the highest bid to repair the property, the tenant may challenge whether the landlord is acting in good faith and ask a judge to determine what a reasonable amount should be.

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The insurance aspect of the question raises some other issues.  This is a loss that is covered by the landlord’s insurance policy.  The insurance will pay for the repairs and charge the landlord only the deductible.  This reduces the landlord’s damages.  If a tenant has insurance, the landlord’s insurance company may ask the tenant’s insurance company to pay for the damages.  If the lease requires the tenant to have insurance and also states that the landlord’s insurance is not for the benefit of the tenant, the insurance company may ask the tenant to pay it back directly. 

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Landlords frequently ask, “Must I submit the claim to insurance?”  There is no requirement to do so, but not doing so is usually a poor decision.  It is true the insurance premium may increase as a result of the claim, but the purpose of paying the insurance premium is so the insurance company will pay for claims like this.  A tenant may also make an issue of whether the landlord properly mitigated damages if submitting the claim would have largely reduced the tenant’s liability.  If the tenant is a beneficiary of the policy the tenant may win this argument.  If the tenant is not a beneficiary of the policy the tenant will be held personally liable.  However, this will require expensive and time-consuming litigation to determine during which time the landlord will pay the cost of the repairs.

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