IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION ONE
VIRGINIA CHIU, an individual, and No. 83734-6-I
VINCENT LIEW, an individual,
ORDER DENYING MOTION FOR
Appellants, RECONSIDERATION AND
WITHDRAWING AND
v. SUBSTITUTING OPINION
BRIAN HOSKINS and the marital
community thereof,
Respondent.
The appellants, Virginia Chiu and Vincent Liew, and the respondent, Brian
Hoskins, have filed motions for reconsideration of the opinion filed on July 10, 2023. The
court has determined that the motions should be denied, but the opinion should be
withdrawn, and a substitute opinion filed; now, therefore, it is hereby
ORDERED that the motions for reconsideration are denied; and it is further
ORDERED that the opinion filed on July 10, 2023 is withdrawn; and it is further
ORDERED that a substitute published opinion shall be filed.
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
VIRGINIA CHIU, an individual, and No. 83734-6-I
VINCENT LIEW, an individual,
DIVISION ONE
Appellants,
PUBLISHED OPINION
v.
BRIAN HOSKINS and the marital
community thereof,
Respondent.
FELDMAN, J. — Virginia Chiu and Vincent Liew (Tenants) appeal the trial
court’s order on summary judgment, findings of facts and conclusions of law, and
judgment in this landlord-tenant dispute. Tenants claim that their landlord, Brian
Hoskins, failed to comply with various provisions in the Residential Landlord-
Tenant Act of 1973 (RLTA), ch. 59.18 RCW, and chapter 7.24 (Rental Agreement
Regulation) of the Seattle Municipal Code (SMC). The trial court concluded that
Hoskins failed to comply with several such provisions but declined to award
damages because it concluded that Tenants had not suffered actual damages.
Tenants contend that the trial court erred in failing to award statutory damages and
attorney fees, which they claim are required by the RLTA and the SMC upon
finding a violation. We agree with Tenants and reverse in part on this point. We
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also hold that the trial court applied the wrong legal standard in awarding damages
to Hoskins for costs he incurred to restore the property to “move-in condition” after
Tenants vacated the property, and we reverse on that point as well. In all other
respects, we affirm.
I
Tenants first learned of the rental property at issue in this appeal (the
Property) in June 2018. After seeing the Property, they filled out an application,
which Hoskins approved. Hoskins then sent them a lease with a move-in checklist
for them to fill out. The purpose of the required move-in checklist is to identify
existing issues that are purportedly subject to repair by the landlord. Tenants
signed both the lease and the checklist as required. Hoskins also signed the
checklist but did not send it back to Tenants. Instead, Hoskins responded to a list
of move-in issues that Tenants had provided by e-mail. Hoskins replied promptly
to that list and repaired those issues that could be fixed.
The monthly rent was $2,395, and Hoskins also required a security deposit
of $2,800, which included a $300 nonrefundable cleaning fee. Although Tenants
paid the security deposit without complaint, they discovered a year later that a
security deposit cannot lawfully exceed the monthly rent, nor can a nonrefundable
move-in fee exceed 10 percent of the monthly rent, under SMC 7.24.035. Hoskins
did not realize that this limit had changed in 2017 and had thus charged Tenants
an excessive amount. When Tenants brought this issue to Hoskins’ attention, he
promptly refunded the overage.
When they took occupancy of the Property, Tenants’ understanding was
that they were to take care of the yard. Hoskins asked if they wanted to hire a
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gardener, and they indicated they did not because they liked gardening. They
subsequently struggled to maintain the yard, so Hoskins asked again if they
wanted to hire a gardener. This time, Tenants agreed. Hoskins then found a
gardener, and Tenants agreed to pay the gardener $50 per month. Thereafter, the
gardener maintained the yard periodically but did not notify Hoskins or Tenants
when he would be performing these services.
The lease expired on June 27, 2019, and Tenants thereafter agreed to go
month to month (with no rent increase) until they moved out at the end of August.
When Tenants moved out, they did not leave the Property in the same condition
that it was in at the inception of the lease. Hoskins incurred various costs for
cleaning and repairs to return the Property to its prior condition, and he subtracted
those charges from Tenants’ remaining security deposit.
After Tenants informed Hoskins that they would be moving out at the end
of August, Hoskins identified a prospective tenant, who signed a lease with
Hoskins with a move-in date of August 24, 2019. The prospective tenant paid
Hoskins $6,587 but then rescinded the lease for a number of reasons, including
the condition of the apartment and yard. The prospective tenant and Hoskins
reached an agreement whereby Hoskins retained $1,297 and refunded the rest.
Dissatisfied that they had not received their full security deposit back,
Tenants sued Hoskins, alleging that he had violated both the SMC and RLTA.
Hoskins denied Tenants’ allegations and asserted a counterclaim for breach of
contract and waste. A bench trial was held in December 2021, and the trial court
largely ruled in Hoskins’ favor. The court rejected Tenants’ arguments regarding
various “technical violations” of the SMC and RLTA because Tenants had not
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proved actual damages and/or Hoskins had not acted unlawfully. Regarding
Hoskins’ counterclaim, the court found Tenants liable for $2,346 for repairs,
cleaning, and yard maintenance and $800 ($100 per day) for eight days during
which Hoskins could not rent the unit as a result of the way Tenants had left it.
The trial court then turned to the issue of prevailing party attorney fees. The
court ruled that Hoskins was the prevailing party for purposes of awarding attorney
fees under the parties’ lease, which states in relevant part, “[l]n the event of
disagreement or litigation regarding the performance of the terms and provisions
of this Agreement by either party hereto, the prevailing party shall be entitled to the
payment of their costs and expenses, including reasonable attorney’s fees . . . . ”
Based on this provision, the trial court awarded Hoskins $19,325 for fees incurred
in defense against Tenants’ claims.
The trial court entered judgment in Hoskins’ favor. Tenants appealed, and
Hoskins cross-appealed. Hoskins has since withdrawn his cross-appeal.
II
When reviewing a trial court’s findings of fact and conclusions of law
following a bench trial, we determine “whether the findings of fact are supported
by substantial evidence and whether those findings support the conclusions of
law.” 224 Westlake, LLC v. Engstrom Props., LLC, 169 Wn. App. 700, 705, 281
P.3d 693 (2012). The substantial evidence standard is satisfied if there is sufficient
evidence “‘to persuade a rational, fair-minded person of the truth of the finding.’”
Hegwine v. Longview Fibre Co., 162 Wn.2d 340, 353, 172 P.3d 688 (2007)
(quoting In re Est. of Jones, 152 Wn.2d 1, 8, 93 P.3d 147 (2004)). If that standard
is satisfied, we will not substitute our judgment for that of the trial court even if we
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might have resolved disputed facts differently. Green v. Normandy Park Riviera
Section Cmty. Club, Inc., 137 Wn. App. 665, 689, 151 P.3d 1038 (2007), (citing
Sunnyside Valley Irrig. Dist. v. Dickie, 149 Wn.2d 873, 879, 73 P.3d 369 (2003)).
The standard of review applicable to legal issues, including the proper
interpretation of the RLTA and SMC, is de novo. State v. Grocery Mfrs. Ass’n, 195
Wn.2d 442, 456, 461 P.3d 334 (2020). 1
A. Deposit, nonrefundable move-in fee, and checklist
The trial court concluded that Hoskins charged a security deposit in excess
of the monthly rent and a nonrefundable fee in excess of 10 percent of the monthly
rent in violation of SMC 7.24.035(A) 2 and (B)(4), 3 respectively. The court also
concluded “that the checklist signed by Hoskins was not provided to the plaintiffs”
in violation of SMC 7.24.030(C)(1). 4 Despite these findings, the trial court did not
award damages based on the security deposit violation because it found that
“plaintiffs did not suffer any damages as a result of the violation . . . .” Nor did it
award damages for the checklist violation, similarly ruling that “[t]he court does not
1 While the Supreme Court has held that the RLTA is a remedial statute, see Silver v. Rudeen
Mgmt. Co., 197 Wn.2d 535, 548, 484 P.3d 1251 (2021), the parties dispute whether the SMC is
remedial in nature. The proper resolution of this issue determines whether any ambiguity in the
SMC must be resolved in Tenants’ or Hoskins’ favor. Because we find no ambiguity in the RLTA or
the SMC, we need not (and do not) rely on these rules of statutory interpretation.
2 SMC 7.24.035(A) states in relevant part, “After January 15, 2017, the total amount of a security
deposit and nonrefundable move-in fees may not exceed the amount of the first full month’s rent
for the tenant’s dwelling unit.”
3 SMC 7.24.035(B)(4) states in relevant part, “The total amount of non-refundable move-in fees
may not exceed ten percent of the first full month’s rent . . . .”
4 SMC 7.24.030(C)(1) provides, “The landlord shall prepare and provide to the tenant at the
commencement of tenancy a written checklist or statement specifically describing the condition and
cleanliness of or existing damages to the dwelling unit at the time of occupancy including damages
to the premises and furnishings, which include but are not limited to walls, floors, countertops,
carpets, drapes, furniture, and appliances. The checklist or statement shall be signed and dated by
the landlord and the tenant, and the tenant shall be provided with a copy of the signed checklist or
statement.”
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find the plaintiffs suffered any damages as a result of not receiving a copy of the
lease that contained the landlords’ [sic] signature.”
Substantial evidence supports the trial court’s findings and conclusions
regarding SMC 7.24.035(A), 7.24.035(B)(4), and 7.24.030(C)(1). Preliminarily,
Hoskins charged Tenants a security deposit of $2,800 despite a monthly rent of
$2,395 in violation of SMC 7.24.035(A). While Hoskins promptly returned the
overage when the tenants informed him of the violation, SMC 7.24.035(A) is stated
in the disjunctive—“charged or withheld”—and he plainly charged an unlawful
amount. Additionally, SMC 7.24.035(E) states that “[n]o deposit may be collected
by a landlord unless the rental agreement is in writing and a written checklist or
statement specifically describing the condition and cleanliness of or existing
damages to the premises and furnishings . . . is provided by the landlord to the
tenant at the commencement of the tenancy.” Thus, if a landlord fails to provide a
signed checklist, as occurred here, the landlord cannot lawfully charge, collect, or
withhold a security deposit. Because Hoskins violated SMC 7.24.035(A), SMC
7.24.035(B)(4), and SMC 7.24.030(C)(1), it was unlawful for him to charge, collect,
or withhold any security deposit.
Despite this evidence, Hoskins argues that he is not liable to Tenants under
SMC 7.24.060(A)(1) because that provision imposes liability only if a landlord
“attempts to enforce provisions in a rental agreement that are contrary to the
requirements of Sections 7.24.030, 7.24.035, 7.24.036, or 7.24.038.” SMC
7.24.060(A)(1) (emphasis added). The SMC does not define the critical phrase
“attempts to enforce.” Where a statute does not define a term, the court may look
to the dictionary for a definition of the term’s ordinary meaning. State v. Christian,
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200 Wn. App. 861, 865, 403 P.3d 925 (2017). The term “attempt” is defined as “to
make an effort to do, accomplish, solve, or effect.” W EBSTER’S THIRD NEW
INTERNATIONAL DICTIONARY 140 (1993). And “enforce” is defined to include “1 : to
give force . . . 5 : . . . COMPEL . . . 7 : to put in force : cause to take effect.” W EBSTER’S
at 751. Thus, the ordinary meaning of “attempts to enforce” is to make an effort to
give force, compel, or put in force: cause to take effect. Applying that construction
here, Hoskins attempted to enforce provisions that were contrary to the SMC when
he charged and collected a security deposit in excess of the monthly rent and a
nonrefundable fee in excess of 10 percent of the monthly rent in violation of SMC
7.24.035(A) and (B)(4) and did so without providing a signed checklist as required
by SMC 7.24.030(C)(1), which is a violation of SMC 7.24.035(E).
Having concluded that the trial court correctly found Hoskins violated the
SMC in multiple respects, we turn to the issue of remedy. By ruling that Tenants
could not recover damages unless they could show actual damages, the trial court
misinterpreted SMC 7.24.060(A)(1). That section states:
If a landlord attempts to enforce provisions in a rental agreement
that are contrary to the requirements of Sections 7.24.030,
7.24.035, 7.24.036, or 7.24.038, the landlord shall be liable to the
tenant for: 1) any actual damages incurred by the tenant as a result
of the landlord’s attempted enforcement; 2) double the amount of
any penalties imposed by the City; 3) double the amount of any
security deposit unlawfully charged or withheld by the landlord; and
4) reasonable attorney fees and costs.
SMC 7.24.060(A)(1) (emphasis added). As can be seen, the plain language of the
statute is mandatory—“the landlord shall be liable.” Thus, if a landlord attempts to
enforce provisions in a rental agreement that are contrary to the requirements of
the enumerated provisions, the trial court must award (1) actual damages, (2)
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double any penalties imposed, (3) double the amount of any security deposit
unlawfully charged or withheld, and (4) reasonable attorney fees and costs. The
trial court here correctly recognized and applied subsection (1) but erroneously
overlooked subsection (3) as well as subsection (4).
While Tenants can recover statutory damages under the SMC, what they
cannot do is recover those statutory damages multiple times. That issue is
squarely addressed in SMC 7.24.060(A)(1), which states that a landlord “shall be
liable” if the “landlord attempts to enforce provisions in a rental agreement that are
contrary to the requirements of Sections 7.24.030, 7.24.035, 7.24.036, or
7.24.038.” (Emphasis added.) As the plural “provisions” shows, a landlord is liable
for actual and statutory damages under SMC 7.24.060(A)(1) if the landlord
enforces one or more unlawful provisions (plural) in a rental agreement. Here, the
unlawful lease provisions are and relate to (a) the excessive security deposit, (b)
the excessive nonrefundable cleaning fee, and (c) the unsigned checklist. Under
SMC 7.24.060(A)(1), Tenants can properly recover actual and statutory damages
because their lease includes unlawful provisions. What Tenants cannot do is
recover the same actual and statutory damages several times simply because the
lease includes several unlawful provisions under the SMC.
Nor can Tenants simultaneously recover under both the SMC and the RLTA
for each violation at issue here. By way of example, the deposit and checklist
requirements in SMC 7.24.035(E) precisely track the requirements in RCW
59.18.260. 5 Tenants claim, therefore, that they can recover statutory damages
5 SMC 7.24.035(E) states in pertinent part, “No deposit may be collected by a landlord unless the
rental agreement is in writing and a written checklist or statement specifically describing the
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under both provisions. We disagree, as “it is a basic principle of damages . . . that
there shall be no double recovery for the same injury.” Pub. Emps. Mut. Ins. Co. v.
Kelly, 60 Wn. App. 610, 618, 805 P.2d 822 (1991). Additionally, Tenants have not
cited a case where a tenant has recovered under both the RLTA and the SMC for
the same underlying violation. We therefore assume no such case exists. Donner
v. Blue, 187 Wn. App. 51, 61, 347 P.3d 881 (2015) (“‘Where no authorities are
cited in support of a proposition, the court is not required to search out authorities,
but may assume that counsel, after diligent search, has found none.’” (internal
quotation marks omitted) (quoting State v. Logan, 102 Wn. App. 907, 911 n.1, 10
P.3d 504 (2000)). 6
Finally, we turn to the issue of attorney fees. The SMC requires that the trial
court award reasonable attorney fees where a violation is found. It states, “[T]he
landlord shall be liable to the tenant for . . . reasonable attorney fees and costs.”
SMC 7.24.060(A)(1) (emphasis added). The RLTA, in turn, includes discretionary
condition and cleanliness of or existing damages to the premises and furnishings, including, but
not limited to, walls, floors, countertops, carpets, drapes, furniture, and appliances, is provided by
the landlord to the tenant at the commencement of the tenancy. The checklist or statement shall
be signed and dated by the landlord and the tenant, and the tenant shall be provided with a copy
of the signed checklist or statement.” RCW 59.18.260 likewise states, “No deposit may be collected
by a landlord unless the rental agreement is in writing and a written checklist or statement
specifically describing the condition and cleanliness of or existing damages to the premises and
furnishings, including, but not limited to, walls, floors, countertops, carpets, drapes, furniture, and
appliances, is provided by the landlord to the tenant at the commencement of the tenancy. The
checklist or statement shall be signed and dated by the landlord and the tenant, and the tenant
shall be provided with a copy of the signed checklist or statement.”
6 Tenants wrongly claim that the court allowed such a double recovery in Lang Pham v. Corbett,
187 Wn. App. 816, 351 P.3d 214 (2015). Contrary to Tenants’ argument, the court in Pham did not
allow the tenants to recover under both the RLTA and the SMC for the same underlying violation.
Instead, the issue was whether the tenants could recover both relocation assistance under SMC
22.206.260(F) and other relief under the RLTA. 187 Wn. App. at 835. Also critical here, Pham
interpreted and applied chapter 22.206 SMC and not the provisions in chapter 7.24 SMC at issue
here. 187 Wn. App. at 835. It is of no moment here that Title 22 SMC does not affect or limit a
tenant’s rights under the RLTA—as the court held in Pham, citing SMC 22.206.305—because
Tenants here are not pursuing a claim under that title.
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language: “the prevailing party may recover court costs and reasonable attorneys’
fees.” RCW 59.18.260 (emphasis added). Thus, for the same reasons set forth
above (the mandatory language in SMC 7.24.060(A)(1)), Tenants are entitled to
recover reasonable attorney fees as well as statutory damages under SMC
7.24.060(A)(1). We remand the matter to the trial court to award these amounts. 7
B. Notice of yardwork
Tenants next argue that the trial court erred when it rejected their claim that
Hoskins violated SMC 22.206.180(F) when a gardener entered the backyard
without providing two days’ notice. SMC 22.206.180(F)(1)(a) states in pertinent
part that it is unlawful for an owner to “[e]nter a tenant’s housing unit or premises”
except after giving the tenant “at least two days’ notice of intent to enter for the
purpose of inspecting the premises, making necessary or agreed repairs,
alterations or improvements, or supplying necessary or agreed services.”
Addressing this issue, the trial court found “that the defendant Hoskins did not
violate the ordinance because the gardener did not go inside the unit; all the work
was done outside.”
We agree with the trial court’s analysis. The rental agreement here defines
the leased premises as “the apartment situated on the upper/main level of the
house at 5329 9th Ave. NE in the City of Seattle, County of King, State of
7 Tenants also claim that Hoskins violated SMC 7.24.060(A)(2), which states, “A landlord who
includes provisions prohibited by subsection 7.24.030.B, Section 7.24.035, Section 7.24.036, or
Section 7.24.038 in a new rental agreement, or in a renewal of an existing agreement, shall be
liable to the tenant for up to $3,000 plus reasonable attorney fees and costs.” Unlike SMC
7.24.060(A)(1), which requires an award of statutory damages, SMC 7.24.060(A)(2) requires proof
of actual damages and limits recovery of those damages to “up to $3,000.” The trial court found
that Tenants proved “no actual damages,” and its finding is supported by substantial evidence.
Thus, the trial court correctly denied recovery of both damages and attorney fees under SMC
7.24.060(A)(2). ]
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Washington.” Because the yard is not part of the housing unit or leased premises,
the gardener did not enter Tenants’ housing unit or premises and was not required
to give notice under SMC 22.206.180(F)(1)(a). The trial court correctly rejected this
claim.
C. Delivery of deposit statement
Tenants assert that Hoskins failed to comply with the RLTA requirement to
timely give them a security deposit statement when he e-mailed the statement to
them rather than delivering it personally or placing a copy in the United States mail.
The RTLA addresses this requirement in RCW 59.18.280(1), which states in
relevant part:
Within twenty-one days after the termination of the rental
agreement and vacation of the premises . . . the landlord shall give
a full and specific statement of the basis for retaining any of the
deposit together with the payment of any refund due the tenant
under the terms and conditions of the rental agreement . . . .
....
(b) The landlord complies with this section if the required
statement or payment, or both, are delivered to the tenant
personally or deposited in the United States mail properly
addressed to the tenant’s last known address with first-class
postage prepaid within the twenty-one days.
(Emphasis added.) The trial court found that Mr. Hoskins complied with RCW
59.18.280 and dismissed the claim on summary judgment. Based on the plain
language of the statute and undisputed facts, we affirm.
On September 6, 2019, six days after the lease expired, 8 Hoskins sent an
e-mail to Tenants with an initial explanation of repairs and dollar amounts.
8 As noted previously, Tenants asked Hoskins, and Hoskins agreed, to extend the lease until the
end of August. While Hoskins initially identified a tenant who was willing to move into the Property
on August 24, 2019, the prospective tenant rescinded their lease with Hoskins due to (among other
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Following this, on September 16, 2019, Hoskins sent Tenants an itemized
accounting of the security deposit indicating a total refund of $346.13. He then
issued payment for that amount on September 20, 2019. Payment occurred within
the 21-day period specified in RCW 59.18.280(1). While the deposit statement was
not delivered personally to Tenants or sent by United States mail, RCW
59.18.280(1) does not mandate either method of delivery. To the contrary,
subsection (b) provides two ways to “give” the required security deposit statement
that are sufficient to establish compliance with RCW 59.18.280(1) but does not
exclude or prohibit other, equally effective, ways to give the statement, including
e-mail.
We have interpreted other statutes in a similar fashion. For example, the
first sentence of RCW 4.28.210 states that “[a] defendant appears in an action
when he or she answers, demurs, makes any application for an order therein, or
gives the plaintiff written notice of his or her appearance.” In City of Des Moines v.
$81,231 in United States Currency, 87 Wn. App. 689, 696, 943 P.2d 669 (1997),
we held that “[t]he methods set forth in RCW 4.28.210 for ‘appearing’ in an action
are not exclusive” and therefore other acts may constitute an “appearance.” The
same reasoning applies to RCW 59.18.280(1). Because undisputed facts show
that Hoskins satisfied the statutory requirement to timely “give” Tenants a security
deposit statement, and because Hoskins issued payment to Tenants within the
things) the condition of the apartment and yard. The 21-day period in RCW 59.18.280(1) thus
commences on August 31, 2019.
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prescribed 21-day period, 9 the trial court correctly dismissed this claim on
summary judgment.
D. Hoskins’ counterclaim for breach of the lease agreement and waste
Turning to Hoskins’ counterclaim for breach of the lease agreement and
waste, the trial court found in favor of Hoskins and awarded three distinct
categories of damages: (1) $1,300 paid by Hoskins to the gardener to clean up the
yard, (2) $800 ($100 per day) for eight days during which Hoskins could not rent
the unit as a result of the way Tenants had left it, and (3) $746.65 for repair costs
relating to patching, paint, a refrigerator shelf, and various other repairs. Tenants
contend that each of these awards is erroneous. We agree in part and disagree in
part as follows.
Starting with the gardener fees, Tenants argue that the trial court erred
when it allowed Hoskins to argue at trial that he should recover $1,300 for
landscaping when the court had already determined in response to their summary
judgment motion that “Hoskins had already agreed to only charge $1,000.” A trial
court, however, is not bound by its summary judgment rulings and can revise those
rulings “any time before entry of final judgment.” Washburn v. Beatt Equip. Co.,
120 Wn.2d 246, 300, 840 P.2d 860 (1992). Additionally, substantial evidence,
including testimony and photographs of the yard, supports the trial court’s award
of $1,300 for this item. Tenants’ contrary arguments are without merit.
9 While Hoskins made additional payments to Tenants after September 20, they relate to his
continuing efforts to negotiate with Tenants regarding the amount of their deposit refund. Given the
parties’ ongoing negotiations and corresponding resolution, these additional payments do not
violate the 21-day deadline specified in RCW 59.18.280(1). See Goodeill v. Madison Real Estate,
191 Wn. App. 88, 91, 362 P.3d 302 (2015) (requiring “conscientious attempt to comply with”
statutory deadline).
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Turning to the remaining items, the trial court awarded these amounts
because it found that “[w]hen the plaintiffs moved out, they did not leave the
premises in move-in condition as required by the lease” and that “Hoskins met his
burden by a preponderance of evidence that the plaintiffs did not leave the unit in
move in condition.” (Emphasis added.) Based on these findings, the trial court
awarded Hoskins $746.65 for repair costs relating to patching, paint, a refrigerator
shelf, and various other “minor repairs.” The court similarly found that “the unit
would not have been in move in condition until September 8th, 2019, when the
repairs, the yardwork, and the cleaning had been completed” and therefore
awarded $800 ($100 per day) for the eight days during which Hoskins could not
rent the unit as a result of the way Tenants had left it. 10 Tenants argue that in
awarding these damages the trial court applied the wrong legal standard. We
agree.
This issue is squarely governed by several complementary provisions of the
RLTA. First, RCW 59.18.130(10) states that “[e]ach tenant shall . . . [u]pon
termination and vacation, restore the premises to their initial condition except for
reasonable wear and tear or conditions caused by failure of the landlord to comply
with his or her obligations under this chapter.” Second, RCW 59.18.260 states, “No
such deposit shall be withheld on account of normal wear and tear resulting from
ordinary use of the premises.” And lastly, RCW 59.18.280(1)(a) likewise states,
10 The award of $800 is premised on section 13 of the lease, entitled “UNCLEAN/DAMAGED
CONDITIONS,” which states, “Should Lessee leave the apartment in an unclean or damaged
condition and Owner/Manager is unable to lease the apartment because of the condition, then
Lessee shall be liable for $100 for each day of lost rent.” While the standard for awarding this
amount improperly varies from the RLTA (as discussed in the text above), there is no argument
that $100 constitutes an unlawful penalty, presumably because it approximates the monthly rent.
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“No portion of any deposit shall be withheld on account of wear resulting from
ordinary use of the premises.”
Applying the plain language of the statute, the trial court was required by
the RLTA to determine whether Tenants failed to leave the leased premises (the
apartment, as defined in the lease and discussed above) in “their initial condition
except for reasonable wear and tear or conditions caused by failure of the landlord
to comply with his or her obligations under this chapter” and award recoverable
damages if and to the extent that Tenants failed to do so. Instead, the trial court
applied a “move-in condition” test, which erroneously varies from the RLTA. We
therefore vacate the judgment on these awards and remand the issue so that the
trial court can properly award damages for repair costs and $100 per day for each
day of lost rent, if any, based on the controlling legal standard set forth above and
in RCW 59.18.130(10).
Finally, Tenants claim that the award of $800 for lost rent also is untenable
because Hoskins collected rent from a prospective tenant for a period that included
September 1-8 and then refunded some of that rent and retained $1,297.
Addressing this issue, the trial court explained that Hoskins was unable to rent the
unit for 22 days, which would have supported a damages award of $2,200, but it
awarded only $800. The difference between these two figures is $1,400, which is
more than the amount ($1,297) that Hoskins retained from the rent paid by the
prospective tenant. While the trial court applied an incorrect legal standard for
determining liability—as the above discussion shows—it appropriately analyzed
Hoskins’ alleged damages and may elect to do so again at the conclusion of the
litigation.
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E. Attorney fees on appeal
Both parties request attorney fees on appeal pursuant to RAP 18.1. Tenants
argue that they are entitled to attorney fees under SMC 7.24.060, while Hoskins
seeks attorney fees under the parties’ lease. This court has repeatedly held that
“[w]here both parties prevail on major issues, neither is entitled to attorney fees.”
Sardam v. Morford, 51 Wn. App. 908, 911, 756 P.2d 174 (1988). Here, as in
Sardam, both parties have prevailed on major issues, so neither is entitled to
recover prevailing party attorney fees on appeal.
III
We vacate the trial court’s judgment and remand the matter for further
proceedings consistent with this opinion, including an award of (1) statutory
damages and attorney fees under SMC 7.24.60(A)(1); and (2) repair costs and
$100 per day for each day of lost rent, if any, based on the controlling legal
standard in RCW 59.18.130(10).
We also vacate the trial court’s award of attorney fees under the parties’
lease. Whether to award on remand attorney fees under the lease necessarily
turns on issues that this Court did not address, such as whether Hoskins or
Tenants ultimately prevail in the litigation.
In all other respects, we affirm.
WE CONCUR:
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