Jay Adams, Et Ux, Appellants V. Larry Apeland, Et Ux, Respondents

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IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION II JAY ADAMS and CYNTHIA ADAMS, husband and wife, Appellants, v. No. 38230-0-II UNPUBLISHED OPINION LARRY APELAND and SHARON APELAND, husband and wife, Respondents. Van Deren, C.J. Jay and Cynthia Adams appeal the trial court s order granting summary judgment to Larry and Sharon Apeland on the Adamses claims that the Apelands violated the Residential Landlord-Tenant Act (RLTA), 1 the lease agreement, and common law by providing allegedly contaminated water to their rental property and that the Apelands did not timely return the Adamses rental deposit. The Adamses argue that the trial court failed to consider all of their claims and that genuine issues of material fact prevented summary judgment. Because the Adamses failed to provide evidence supporting any of their claims regarding the water quality and because the Apelands returned the full rental deposit, we affirm. 1 Chapter 59.18 RCW. No. 38230-0-II FACTS On March 19, 1998, the Adamses entered into a one year lease with the Apelands for rental property on Tiger Lake near Bremerton, Washington. The Adamses paid a $500 security deposit, plus a $150 pet deposit. The term of the lease was from March 19, 1998 through April 31, 1999, Br. of Appellant at 9, and it became a month to month tenancy thereafter. Clerk s Papers (CP) at 10. The lease agreement provided that the rent was $650 a month. The Adamses rented the property for over nine years. The Apelands told the Adamses before the tenancy commenced that the water for the residence was pumped from [Tiger L]ake. CP at 77. They also told the Adamses that the water was drinkable but advised the Adamses to filter it or . . . carry their water in. CP at 23. The Adamses brought in their own drinking water throughout the tenancy. CP at 10. The Apelands told [the Adamses] that they would raise [the] rent after a well was installed on the property. CP at 78. In either 2001 or 2003, the Adamses asked the Apelands to install a well. The Adamses offered to cover the cost of part of the installation of the well by offering to pay the [Apelands] increased rent. CP at 33. The Apelands agreed to install a new well if [the Adamses] agree[d] to continue renting . . . for another 4 years. 2 CP at 33. In March 2004, the Adamses offered to purchase the property but the Apelands declined their offer. The Apelands did install a well [i]n the early spring of 2007 and increased the rent to $800 [s]hortly thereafter. CP at 10. A neighbor then offered to purchase the property. On June 21, 2007, the Apelands gave the Adamses notice to vacate the premises before August 1, 2 The Adamses allege that they agreed to this arrangement. 2 No. 38230-0-II 2007. The Adamses vacated in a timely fashion, CP at 10, and moved into [a] house they purchased. Br. of Appellant at 10. On August 2, the Apelands sold the Tiger Lake property. On January 23, 2008, the Adamses sued3 the Apelands, alleging that [t]he lake ha[d] been found to have contaminants and that the Apelands (1) were negligent in failing to notify the Adamses of the water quality, (2) breached the implied warranty of habitability and the express covenant of quiet enjoyment, and (3) violated the RLTA by failing to return their security deposit within 14 days or provide written notice that the dwelling is equipped with a smoke detection device as required by RCW 48.48.140. CP at 4-5. They also alleged that the Apelands violated the RLTA by taking retaliatory action against them. In their answer, the Apelands denied the allegations regarding the water quality. They admitted that the deposit was not returned within 14 days because [the Adamses] failed to leave a forwarding address. But they stated that the full security and cleaning deposit . . . was refunded on or about September 25, 200[7]. CP at 7. The Apelands asserted as affirmative defenses that (1) the Adamses proximately caused or contributed to any injuries or damages; (2) the Adamses assumed the risk when they knew of and voluntarily subjected themselves to the conditions of the property; (3) the claims are barred by the statute of limitations or by the doctrines of estoppel, waiver, and/or laches ; and (4) the Adamses failed to mitigate their 3 During the summary judgment hearing, the Adamses counsel explained the origin of the suit: Your Honor . . . when I discussed the case with my client -- the reason the clients came into my office in the first place is they were trying to recover their deposit. .... During our discussions over a week or so we discussed a lot of things, and when they told me that their water was from a lake source, I said, Weren t you concerned? . . . because I worked for an environmental company once, and I don t even drink running water from the streams in the mountains anymore like I used to when I was a kid, and so we talked about that. Report of Proceedings (RP) at 20. 3 No. 38230-0-II damages and failed to protect themselves from avoidable consequences. CP at 7-8. The Apelands submitted requests for admission to the Adamses. In their response, dated May 28, 2008, the Adamses admitted that they knew the water was pumped from the lake before they moved into the house. They admitted that they did not drink the water from the lake and that they brought [their] own drinking water to the residence. They also affirmed that they ha[d] not [been] treated [by] any health care providers as a result of the allegations set forth in the complaint. They admitted that they received and cashed or deposited a check from the Apelands for $650 on or about October 2, 2007. They further admitted that the Apelands informed them they would raise the rent after a well was installed on the property. CP at 78. They admitted that they had not delivered any written notices to [the Apelands] regarding any defective conditions on the property nor had they ma[d]e any complaints or reports to a governmental authority concerning . . . the maintenance or operation of the premises. CP at 79. The Apelands then moved for summary judgment. They argued that the Adamses cannot show any damage or injury and their claims are barred by the implied primary assumption of the risk. CP at 9. In addition to pointing out that the Adamses did not drink the water and that they knew of the water source prior to signing the lease, they further claimed that [a]s a compromise for the inconvenience of bringing in their own drinking water the landlords agreed to a reduced rent of $600 per month. 4 CP at 10. The Adamses argued that [p]rior to . . . signing the lease . . . [t]he Apelands represented 4 The Adamses did not contradict this statement but argued that [t]he rent was $650, as stated in the rental agreement. RP at 16. Furthermore, the Apelands admit that the rent was raised $150.00 to $800.00 per month when they installed a well, indicating that the rent was $650. CP at 10. The trial court found that because the rent amount of $600 was supported in [the Apelands ] affidavit and was not contradicted by the Adamses, the court was required to accept that fact. RP at 17. 4 No. 38230-0-II [that] the water was drinkable and that the lake was an approved domestic water system. CP at 23. They further alleged that the Apelands evicted them in retaliation for [their] insistence on installing a well that was promised by the Apelands back in 2003. CP at 28. Finally, the Adamses stated that expert testimony will prove that the lake was not an approved source for domestic use and that the Apelands did not obtain the Surface Water Right permit as required by code. CP at 29-30. With regard to the return of the rental deposit, the Adamses declaration stated that they gave the Apelands written notice of their new address upon termination of the lease. They also submitted a copy of a letter from Sharon Apeland that accompanied the returned deposit.5 Further, the declaration noted that the Apelands did not install any smoke detectors and that they failed to provide and complete the smoke alarm and fire detector inventory report as required by the [RLTA]. CP at 34. At the summary judgment hearing on July 25, 2008, the Apelands moved to have certain 5 That letter, dated September 25, stated: Jay & Cindy, Please forgive me for returning your deposit so late. Between company & back & forth to the lake, I just forgot! I should have sat right down that morning & done it!! Anyway . . . here it is, & we wish you the best, you were good renters thanks! Sharon CP at 31. 5 No. 38230-0-II portions of the Adamses memorandum stricken from consideration. 6 Report of Proceedings (RP) at 3. They argued that the trial court had no objectively verifiable evidence in front of [it] of an injury whatsoever. RP at 6. They also argued that the first thing that you have to look at is was there an unreasonable dangerous condition here which made it uninhabitable? The answer to that is no. There is no evidence whatsoever that there is anything wrong with this water; none. RP at 9. They noted that the Adamses bargained at a reduced rate for -- this is a waterfront property on the lake, 1,500 square feet, for a reduced rate of $600 per month, and the . . . rent was not raised at all for nine years as an accommodation for them having to bring their own water in. RP at 10. The Adamses asked for damages in an amount totaling the rent they paid during the nine year tenancy. They argued that [t]hey were advised that the water system was approved, and they needed to -- if they used the filter system on the outside of the house that it was drinkable. They chose not to drink it. They cooked with it. They bathed in it. They used it for everything 6 Specifically, the Apelands asked that the trial court strike the portion of the memorandum that stated: The water was contaminated with bacteria. After drinking the water for awhile, the Adams[es] and their family started experiencing symptoms that included diarrhea, vomiting, headaches, nausea and rashes. The symptoms continued for months, during which the Adams[es] were unsure of the cause of the symptoms. CP at 23 In response, the Adamses counsel stated: [Adamses Counsel]: [T]hrough investigation in regards to the water system -that was the domestic water system that was being supplied to the rental unit -- I made contact with county officials and talked with county officials in regard -The Court: But I have not seen this in an affidavit. [Adamses Counsel]: I was not able to procure an affidavit, Your Honor, do to -The Court: And I can t consider mere summaries and allegations. I have to have a factual affidavit or document that is admissible and this is a summary allegation. RP at 4 (emphasis omitted). The trial court granted the Apeland s motion to strike. The Apelands further successfully moved to strike the paragraphs referring the health department and what they will do [regarding] bacteria. RP at 5. 6 No. 38230-0-II but, again, pure ingestion. RP at 19. The Adamses argued that Mr. Apeland said that it was a filter system on the outside of the system prior to it coming into the house, and as long as they maintained and used the filter system it was drinkable, and they could use it. The[ Adamses] chose on their own not to [drink the water], but they were advised prior to entering into the lease that the water source itself was approved. RP at 21. The Adamses attorney further stated, Your Honor, we keep alleging that there was a reduced reduction in rent, and that is not the case. The rent was $650, as stated in the rental agreement. That is what the[; Adamses] paid every month. There is nothing in the rental agreement. RP at 16-17. The following discussion then took place: The Court: [Adamses Counsel]: The Court: [Adamses Counsel]: Is that placed in the affidavit? No, I did not. No, Your Honor, I did not. I didn t see that, so -But the lease agreement states it on its face. The lease agreement states $650 a month. It does not have any language about any consolidation or any meeting of the minds about the water issue. It s a straight lease, Your Honor. They kept alleging that my clients paid only $600. The Court: But it s alleged. It s not contradicted. [Apelands Counsel]: And it s supported in our affidavit, Your Honor. The Court: So I ve got to accept that fact. [Adamses Counsel]: Okay. RP at 17 (emphasis omitted). The trial court summarized: The plaintiff has the burden to prove by a preponderance of the evidence, but in a summary judgment motion it has to be shown that there is no . . . genuine issue of fact. I have to have sufficient information allegations that would be admissible in court that this water is not ingestible for the safety [sic]. I don t have that right now. RP at 24. It then granted summary judgment to the Apelands, stating, [A]lthough I am supposed 7 No. 38230-0-II to take all inferences in the light most reasonable to the non-moving party[, t]he commentaries that have been made [regarding the water quality] I don t believe are sufficient to carry that presumption or that inference to [the Adamses ] favor. RP at 25. It stated: I don t believe that there is a genuine issue of fact regarding the theories of liability that have been claimed under tort law because there is no injury that has been alleged to create a genuine issue of fact. Secondly, regarding the home being leased without the water, I believe the argument that the [Apelands] have made with entering into this based on their allegations concerning the rent and the reduction and the knowledge of it and the activity and failure to rebut by the [Adamses] leads me to believe that they were aware that ingestible water should be brought in. I think that it s a highly suspect case in terms of folks having this right, but I am going to let a higher court tell me that I am wrong. RP at 25-26. The Adamses appeal. ANALYSIS The Adamses argue that the trial court erred in granting summary judgment because there were unresolved genuine issues of material fact. They argue that the trial court failed to consider all of their claims and only considered their tort claim in granting summary judgment to the Apelands. I. Standard of Review We review an order or denial of summary judgment de novo, performing the same inquiry as the trial court. Curtis v. Lein, 150 Wn. App. 96, 102, 206 P.3d 1264 (2009). Summary judgment is appropriate if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. CR 56(c). The 8 No. 38230-0-II moving party must demonstrate that there is no genuine issue of material fact and that, as a matter of law, summary judgment is proper. Young v. Key Pharms., Inc., 112 Wn.2d 216, 225, 770 P.2d 182 (1989). [W]e consider all of the facts submitted and the reasonable inferences therefrom in the light most favorable to the nonmoving party. Atherton Condo. Apartment Owners-Ass n Bd. of Dirs. v. Blume Dev. Co., 115 Wn.2d 506, 516, 799 P.2d 250 (1990). But [t]he nonmoving party must set forth specific facts that demonstrate a genuine issue of material fact and cannot rest on mere allegations. Curtis, 150 Wn. App. at 102. We affirm summary judgment if the nonmoving party fail[ed] to make a showing sufficient to establish the existence of an element essential to that party s case, and on which that party will bear the burden of proof at trial. Young, 112 Wn.2d at 225 (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S. Ct. 2548, 91 L. Ed. 2d 265 (1986)). Therefore, if a defendant moving for summary judgment shows that there is an absence of evidence to support the nonmoving party s case, the nonmoving party must rebut this showing.7 Young, 112 Wn.2d at 225 n.1 (quoting Celotex Corp., 477 U.S. at 325). If the nonmoving party fails to rebut the showing, then there is necessarily no genuine issue as to any material fact, since a complete failure of proof concerning an essential element of the nonmoving party s case necessarily renders all other facts immaterial. Young, 112 Wn.2d at 225 (internal quotation marks omitted) (quoting Celotex Corp., 477 U.S. at 322-23). 7 The dissent in Celotex specifies what the nonmoving plaintiff must do upon the moving party s successful initial showing: (1) rehabilitate the evidence attacked in the moving party s papers, (2) produce additional evidence showing the existence of a genuine issue for trial as provided in Rule 56(e), or (3) submit an affidavit explaining why further discovery is necessary as provided in Rule 56(f). Young, 112 Wn.2d at 226 n.2 (quoting Celotex Corp, 477 U.S. at 332 n.3 (Brennan, J., dissenting)). 9 No. 38230-0-II II. Water Quality Claims The Adamses based several claims on the alleged contamination of the lake water. These included negligence, implied warranty of habitability, express covenant of quiet enjoyment, and violation of the major maintenance clause of the lease. We consider each claim to determine if summary judgment was proper. A. Negligence The Adamses alleged that the Apelands were negligent in failing to warn them of the contaminated water. The Adamses, to support their claim, were required to show (1) that there was a defect, i.e., that the water was contaminated, at the time they entered into the lease; (2) that the Apelands knew of the defect; (3) that they failed to warn the Adamses of the defect; and (4) that the defect caused personal injury. Lian v. Stalick, 106 Wn. App. 811, 820, 25 P.3d 467 (2001); Howard v. Horn, 61 Wn. App. 520, 523, 810 P.2d 1387 (1991). A landlord is liable only for failing to inform the tenant of known dangers which are not likely to be discovered by the tenant. Tucker v. Hayford, 118 Wn. App. 246, 255, 75 P.3d 980 (2003) (quoting Aspon v. Loomis, 62 Wn. App. 818, 827, 816 P.2d 751 (1991)). But here, the Adamses presented no admissible evidence that the water was ever contaminated. This alone is sufficient to show that there was an absence of evidence to support the [Adamses ] case. Young, 112 Wn.2d at 225 n.1 (quoting Celotex Corp., 477 U.S. at 325). Furthermore, the Adamses admitted that they suffered no injury. The trial court expressed concern about the Apelands suggestion that the Adamses bring in drinking water but it agreed with the Apelands that there was nothing in the admissible evidence showing the water was contaminated. It found that there was no genuine issue of fact 10 No. 38230-0-II regarding the theories of liability that have been claimed under tort law because there is no injury that has been alleged. RP at 25. The trial court further stated, I have to have sufficient information allegations that would be admissible in court that this water is not ingestible for the safety [sic]. I don t have that right now. RP at 24. Because there was no genuine issue of material fact regarding the Adamses negligence claim, summary judgment was proper. B. Implied Warranty of Habitability To succeed on their implied warranty of habitability claim,8 the Adamses had to show that the Apelands violated one of the enumerated duties in RCW 59.18.060. Lian, 106 Wn. App. at 816. The Adamses did not list specific duties in their complaint, but listed subsections (7) and (10) in their memorandum in opposition to summary judgment. They further listed subsections (1) and (5) in their opening brief on appeal. RCW 59.18.060 requires landlords to at all times during the tenancy keep the premises fit for human habitation. It then states, in relevant part, that a landlord must: (1) Maintain the premises to substantially comply with any applicable code, statute, ordinance, or regulation governing their maintenance or operation . . . if such condition substantially endangers or impairs the health or safety of the tenant; .... (5) . . . make repairs and arrangements necessary to put and keep the premises in as good condition as it by law or rental agreement should have been, at the commencement of the tenancy; . . . .... (7) Maintain all electrical, plumbing, heating, and other facilities and appliances supplied by him in reasonably good working order; .... 8 In all contracts for renting of premises there is an implied warranty of habitability. Foisy v. Wyman, 83 Wn.2d 22, 28, 515 P.2d 160 (1973). Generally, the warranty applies whenever the defects in a particular dwelling render it uninhabitable or pose an actual or potential safety hazard to its occupants. Lian, 106 Wn. App. at 818. The RLTA does not, however, create a generally actionable duty; a landlord s duties are limited to those specifically listed in RCW 59.18.060. Lian, 106 Wn. App. at 816. 11 No. 38230-0-II (10) Except where the building is not equipped for the purpose, provide facilities adequate to supply heat and water and hot water as reasonably required by the tenant. RCW 59.18.060. Again, the Adamses did not provide any evidence sufficient to support their claim that the lake water was contaminated. There is no evidence supporting the allegation that the water system at the property (a) substantially endanger[ed] or impair[ed] the Adamses health or safety, RCW 59.18.060(1); (b) placed the property in a condition other than that which it should have been[ ] at the commencement of the tenancy, RCW 59.18.060(5); or (c) was not in reasonably good working order. RCW 59.18.060(7). Further, there is no evidence that the Apelands failed to provide facilities adequate to supply . . . water and hot water as reasonably required by the [Adamses]. RCW 59.18.060(10). Summary judgment on the implied warranty of habitability claim was proper. C. Covenant of Quiet Enjoyment The Adamses claimed that the Apelands breached the covenant of quiet enjoyment, clause 3 of their lease. Here, the Adamses had to show that the property was untenantable and, therefore, they were constructively evicted from the property. 5 Thompson on Real Property, Second Thomas Edition § 41.03(c)(3), at 153-54 (David A. Thomas & N. Gregory Smith eds., 2007). Premises are untenantable if it is impossible or infeasible for the tenant to use them. 17 William B. Stoebuck & John W. Weaver, Washington Practice: Real Estate: Property Law § 6.32, at 352 (2d ed. 2004). In Tucker, Division Three of this court held that a tenant is constructively evicted if the drinking water is unsafe.9 118 Wn. App. at 254 & n.8. But the Adamses failed to provide any 12 No. 38230-0-II evidence that the water was unsafe. Furthermore, a tenant waives his right to treat a landlord s actions as constructive eviction if he decides to remain in possession of the leased premises. Draper Mach. Works, Inc. v. Hagberg, 34 Wn. App. 483, 486, 663 P.2d 141 (1983); see also 17 Washington Practice § 6.32, at 353-54. Because the Adamses did not provide any evidence showing that the drinking water was unsafe and because they did not leave the premises until the Apelands served them with notice to vacate the premises and after they purchased a home of their own, summary judgment was proper with regard to the Adamses quiet enjoyment claim. D. Major Maintenance The Adamses also argue that the Apelands violated the lease agreement by failing to test the water annually as part of the major maintenance of the home. Br. of Appellant at 8. Clause 12 of the lease agreement states that [m]ajor maintenance and repair of the leased premises, not due to Lessee s misuse, waste, or neglect . . . shall be the responsibility of Lessor or his assigns. CP at 21. In the section of their brief entitled Major Maintenance and Repair, the Adamses discuss the Bremerton-Kitsap County Board of Health Ordinances 1999-6 and do not cite to the lease agreement. Br. of Appellant at 33 (emphasis omitted). They state that it was an abuse of discretion for the trial court to fail to take[] into consideration the Bremerton-Kitsap County health ordinances. Br. of Appellant at 36. 9 Leased premises are deemed untenantable for the purposes of constructive eviction under the quiet enjoyment covenant when the premises are unfit for the purpose for which they are leased. If the premises are uninhabitable, they are certainly untenantable. Tucker, 118 Wn. App. at 254 n.8 (quoting 5 Thompson on Real Property § 40.22(c)(3)(i), at 144 (David A. Thomas ed., 1994). Therefore, because [i]t is well settled that unsafe drinking water renders a home uninhabitable, therefore, such water must also interfere with a tenant s quiet enjoyment. Tucker, 118 Wn. App. at 254. 13 No. 38230-0-II The Adamses have waived this issue. RAP 2.5(a). Though the Adamses discussed the major maintenance clause of the lease agreement briefly in their memorandum in opposition to summary judgment, they did not cite to the Bremerton-Kitsap County health ordinances in their complaint and only state that lake water does not meet . . . the applicable code, statute, ordinance or regulation. CP at 4. They did not mention the major maintenance clause or the health ordinances at the trial court summary judgment hearing. Furthermore, they do not cite to any specific ordinances in their appellate brief. Therefore, we need not address the issue of the Bremerton-Kitsap County health ordinances on appeal.10 III. Additional Claims The Adamses also claimed that the Apelands failed (1) to return their deposit within 14 days under RCW 59.18.260 through .280 and (2) to provide written notice that the dwelling is equipped with a smoke detection device as required by RCW 48.48.140. CP at 5. Further, the Adamses claim that the Apelands violated RCW 59.18.240 and .250 when they took retaliatory actions against the[m] for forcing the issue of the safety of the water source by raising the rent and subsequently selling the property. CP at 5. A. Security Deposit RCW 59.18.280 states, Within fourteen 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. The statute further states, If the 10 The Adamses rely on Division Three s opinion in Tucker, to support their argument that tenants need not give written notice to landlords for defects that exist on the outside of a rental property. But because they utterly failed to produce evidence supporting their negligence, lease, or maintenance claims, we do not discuss this case. 14 No. 38230-0-II landlord fails to give such statement together with any refund due the tenant within the time limits specified above he shall be liable to the tenant for the full amount of the deposit. . . . The court may in its discretion award up to two times the amount of the deposit for the intentional refusal of the landlord to give the statement or refund due. RCW 59.18.280. Here, the Adamses lease ended August 1, 2007.11 The Apelands paid the Adamses their entire deposit amount of $650 on or about September 25, 2007. The Adamses deposited this check and received the funds on or about October 2, 2007. The Adamses remedy for the Apelands failure to return the deposit within 14 days is return of the full amount of the deposit. RCW 59.18.280. The Adamses received the full deposit. Though the trial court may in its discretion award up to two times the amount of the deposit, the trial court here did not err in deciding not to award the Adams double their deposit in damages. RCW 59.18.280. The Adamses argument fails and summary judgment was proper on this claim. B. Smoke Detector The Adamses complaint states that the Apelands did not follow the terms of RCW 59.18.060(11)(a), (b) when the[y] failed to provide the[m] a written notice signed by the landlord or their authorized agents that the dwelling is equipped with a smoke detection device as required by RCW 48.48.140. CP at 5. Neither party discusses the alleged lack of smoke detector notice in their briefs on appeal. But because the Adamses assign error to the trial court s failure to address[ their] other causes of action based upon . . . the Residential Landlord-Tenant Act of 11 The Adamses original complaint states, Beginning in March 1998, and through the present, the plaintiffs have rented a residence from the defendants. CP at 3 The complaint was dated January 23, 2008. CP at 5. 15 No. 38230-0-II 1973, we briefly consider the issue. Br. of Appellant at 7. RCW 59.18.060(11)(a) states that landlords must [p]rovide a written notice to all tenants disclosing fire safety and protection information. The landlord . . . must provide a written notice to the tenant that the dwelling unit is equipped with a smoke detection device as required in RCW 48.48.140. The notice shall inform the tenant of the tenant s responsibility to maintain the smoke detection device . . . . The notice must be signed by the landlord . . . and tenant with copies provided to both parties. RCW 59.18.060(11)(b) applies only to multifamily residential buildings and is not applicable here. RCW 59.18.060(11)(c) states, The written notice or checklist must be provided to new tenants at the time the lease or rental agreement is signed, and must be provided to current tenants as soon as possible, but not later than January 1, 2004. RCW 59.18.060(11) was amended in 2002 to include these notice requirements. See RCW 59.18.060; Laws of Washington 2002, ch. 259, § 1, at 1223. Under RCW 59.18.070, if a landlord fails to carry out the duties required by RCW 59.18.060 or by the rental agreement, the tenant may . . . deliver written notice . . . which notice shall specify the premises involved, the name of the owner, if known, and the nature of the defective condition. Once the landlord receives notice, the landlord shall commence remedial action . . . as soon as possible but not later than the following time periods, except where circumstances are beyond the landlord s control: (1) Not more than twenty-four hours, where the defective condition deprives the tenant of hot or cold water, heat, or electricity, or is imminently hazardous to life; (2) Not more than seventy-two hours, where the defective condition deprives the tenant of the use of a refrigerator, range and oven, or a major plumbing fixture supplied by the landlord; and (3) Not more than ten days in all other cases. RCW 59.18.070. 16 No. 38230-0-II The Adamses were tenants in 2002 when the amendments to the smoke detector requirements occurred. Therefore, under RCW 59.18.060(11)(c), the Apelands were required to provide written notice regarding the smoke detectors by January 1, 2004. Assuming, as the Adamses allege, that the Apelands failed to comply with RCW 59.18.060(11), the Adamses remedy was to provide written notice of the defect to the Apelands. There is no evidence that such notice was given. But even if the Adamses did submit such notice to the Apelands and the Apelands failed to remedy the defect within the time periods provided in RCW 59.18.070, the Apelands violated RCW 59.18.060(11) no later than January 11, 2004. Generally, all claims have a two year statute of limitations unless otherwise provided by statute. See RCW 4.16.130. A statute of limitations begins to run once a cause of action has accrued. RCW 4.16.005; Kinney v. Cook, 150 Wn. App. 187, 192-93, 208 P.3d 1 (2009). A cause of action usually accrues when the party has the right to apply to a court for relief. Kinney, 150 Wn. App. at 193 (quoting 1000 Va. Ltd. P ship v. Vertecs Corp., 158 Wn.2d 566, 575, 146 P.3d 423 (2006)). For the purpose of tolling any statute of limitations an action shall be deemed commenced when the complaint is filed or summons is served whichever occurs first. RCW 4.16.170. The Adamses served the Apelands with a summons and filed their complaint on January 23, 2008, more than four years after the statute of limitations began to run. Therefore, the Adamses claim against the Apelands under RCW 59.18.060(11) for failure to provide written notice regarding the smoke detectors is barred by the statute of limitations. C. Retaliatory Eviction The Adamses further alleged that the Apelands 17 No. 38230-0-II took retaliatory actions against the [Adamses] for forcing the issue of the safety of the water source and then getting advi[c]e from the county health department that the current water supply to the residence was not in compliance with the codes and regulation and posed a serious imminent health and safety risk to them. CP at 5. They also allege that [w]ithin one month after the defendants installed a well to supply water to the residence they raised the rent and two months after the well was installed evicted the plaintiffs and then sold the property in violation of RCW 59.18.240 and RCW 59.18.250. CP at 5. The Adamses maintain that: The [Apelands ] actions were in retaliation for the Adams[es] insistence on installing a well that was promised by the Apelands back in 2003 and the Apelands never followed through with their promises to correct the domestic water issue. CP at 28. On appeal, they do not specifically assign error to the trial court s failure to consider this issue, but because they assign error to the trial court s failure to address[] the[ir] other causes of action based upon . . . the [RLTA], we briefly consider the issue. Br. of Appellant at 7. RCW 59.18.240 states: . . . the landlord shall not take or threaten to take reprisals or retaliatory action against the tenant because of any good faith and lawful: (1) Complaints or reports by the tenant to a governmental authority concerning the failure of the landlord to substantially comply with any code, statute, ordinance, or regulation governing the maintenance or operation of the premises, if such condition may endanger or impair the health or safety of the tenant; or (2) Assertions or enforcement by the tenant of his rights and remedies under this chapter. Reprisals or retaliatory action shall mean and include but not be limited to any of the following actions by the landlord when such actions are intended primarily to retaliate against a tenant because of the tenant s good faith and lawful act: (a) Eviction of the tenant; (b) Increasing the rent required of the tenant; (c) Reduction of services to the tenant; and (d) Increasing the obligations of the tenant. 18 No. 38230-0-II RCW 59.04.020 states that month-to-month tenancies shall be terminated by written notice of thirty days or more, preceding the end of any of said months or periods, given by either party to the other. The Adamses admitted that they did not make any complaints or reports to a governmental authority, and that they never delivered any written notices to defendants regarding any defective conditions. CP at 79. The Adamses also admitted that the [Apelands] told [them] that they would raise [the] rent after a well was installed on the property, that the rent increased to $800.00 per month after the well was put on the property, and that their rent never increased prior to the time the well was installed on the property. CP at 78-79. Finally, the Apelands served the Adamses with a notice to vacate, effective August 1, 2007, on June 21, 2007. This notice provided the Adamses with more than the 30 days notice necessary in monthto-month tenancies and there is no evidence that the Apelands evicted the Adamses for any purpose other than to sell the property. RCW 59.04.020. Under these facts, the Adamses cannot show that the Apelands evicted them or raised their rent in retaliation for complaints to government authorities or assertion of their rights and remedies. Therefore, summary judgment on this claim was proper.12 IV. Attorney Fees Neither party requests attorney fees on appeal. The trial court did not award attorney fees to the Apelands on their summary judgment motion. Therefore, we need not consider attorney fees. 12 We do not discuss the Apelands affirmative defense that the Adamses assumed the risk when they knew of the water source prior to signing the lease. Both parties devote large portions of their briefs to this issue but, because the Adamses failed to carry their burden on their claims, we do not undertake an analysis of assumption of risk. 19 No. 38230-0-II We affirm. A majority of the panel having determined that this opinion will not be printed in the Washington Appellate Reports but will be filed for public record pursuant to RCW 2.06.040, it is so ordered. Van Deren, C.J. We concur: Houghton, J. Bridgewater, J. 20

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