Daily Development for Wednesday, January 26, 2000

By: Patrick A. Randolph, Jr.
Professor of Law
UMKC School of Law
Of Counsel: Blackwell Sanders Peper Martin
Kansas City, Missouri
randolphp@umkc.edu

LANDLORD/TENANT; CONSTITUTIONAL LAW; FIRST AMENDMENT; RETALIATORY EVICTION: Tenant of government-operated port facility can raise, as an affirmative defense to eviction, argument that port authority was evicting it in retaliation for exercise of right to free speech.

Port of Longview v. International Raw Materials, Ltd., 979 P.2d 917 (Wash. App. 1999).

IRM, a tenant at will of the Port of Longview, a public entity, obtained information regarding coal tar pitch, being offloaded at the port. Coal tar pitch is a hazardous substance. A local newspaper published a letter to the editor from O'Neill, President of IRM in which he expressed his view that the port should invest in facilities to insure safe handling of coal tar pitch for the safety of employees. O'Neill made similar comments at a meeting with port officials. Three days later, the port authority sent a thirty day notice of IRM's office lease, but offered to provide alternative facilities elsewhere.

In the letter, the port official stated: "[G]iven Mr. O'Neill's comments, it would be foolish to continue the present office arrangement and hence this notice to vacate." IRM refused to move.

In the unlawful detainer action brought by the port authority, IRM attempted to raise an affirmative defense of retaliatory eviction based on IRM's exercise of the First Amendment right of free speech. The trial court dismissed IRM's affirmative defense and entered an order awarding possession of IRM's leased premises to the port authority.

On appeal: held: Reversed. The Washington Court of Appeals found that the First Amendment could be raised as a defense to eviction by a public landlord when the speech in question relates to possession of the subject property, and when the tenant is not otherwise in breach of its lease.

The court first noted that retaliatory eviction defense is an equitable defense that can be interposed by a tenant whenever such eviction may be a violation of a substantive legal right. Here, the court traced U.S. Supreme Court rulings recognizing that parties contracting with government are entitled to the protection of free speech rights.

The court further noted that the equitable defense of retaliatory eviction has been extended to commercial tenants on a number of occasions, citing cases in California, New York and Hawaii, but pointed also to a D.C. case in which the defense was not allowed in a commercial context.

Comment 1: The tenant may raise the defense, but given the somewhat equivocal language of the letter, the Port may still be able to escape the consequences. The Port may simply have determined that it was best to close down these offices entirely.

But note that the Port's position was that its coal tar handling facilities were perfectly safe. On the basis of that view, could it simply relocate the complaining tenant and put in another, noncomplaining tenant in the space? The gist of the opinion appears to be that the answer is "no."

Comment 2: Retaliatory eviction as a concept arose in connection with the implied warranty of habitability in residential housing. There really are not that many cases, and the court's suggestion here that it is a standard equitable defense may suggest a basis for raising the issue in jurisdictions in which it is not supported by statute. Compare W.W.G. Corp. v. Hughes, 960 P.2d 720 (Colo. App. 1998), the DD for January 7, 1999, where a Colorado court held that the doctrine is not recognized in Colorado. The DD discussion of that case discusses other authorities that further refine the concept of retaliatory eviction.

Comment 3: If the defense can be raised in commercial leases, note that it can be raised in renewal cases as well as in terminations of tenancies at will. If the tenant can show that landlord's refusal to renew has a prohibited retaliatory motive, it can demand a renewal (although at what rental it is hard to say).

But in this context, what is a prohibited retaliatory motive? We don't have the implied warranty (except maybe in Texas and Utah) to worry about, and we don't have housing codes. But we do have building codes, of course. If a tenant complains to the City about landlord's violations of building codes, and the landlord, in retaliation, evicts the tenant, does this fit the model? Note that the Constitutional rights recognized in the instant case are of a higher order of magnitude and are available only with a public landlord, but the situation posed in this hypothetical describes conduct that would be protected in many states in the residential context. Hmmmmm.

Readers are urged to respond, comment, and argue with the daily development or the editor's comments about it.

Items in the Daily Development section generally are extracted from the Quarterly Report on Developments in Real Estate Law, published by the ABA Section on Real Property, Probate & Trust Law. Subscriptions to the Quarterly Report are available to Section members only. The cost is nominal. For the last six years, these Reports have been collated, updated, indexed and bound into an Annual Survey of Developments in Real Estate Law, volumes 1‑6, published by the ABA Press. The Annual Survey volumes are available for sale to the public. For the Report or the Survey, contact Maria Tabor at the ABA. (312) 988 5590 or mtabor@staff.abanet.org

Items reported here and in the ABA publications are for general information purposes only and should not be relied upon in the course of representation or in the forming of decisions in legal matters. The same is true of all commentary provided by contributors to the DIRT list. Accuracy of data and opinions expressed are the sole responsibility of the DIRT editor and are in no sense the publication of the ABA.

Parties posting messages to DIRT are posting to a source that is readily accessible by members of the general public, and should take that fact into account in evaluating confidentiality issues.

ABOUT DIRT:

DIRT is an Internet discussion group for serious real estate professionals. Message volume varies, but commonly runs 5 ‑ 10 messages per workday.

Daily Developments are posted every workday.

To subscribe to Dirt, send an e-mail to:

To:	ListServ@listserv.umkc.edu
Subject:	[Does not matter]
Text in body of message	Subscribe Dirt [your name]

To cancel your subscription to Dirt, send an e-mail to:

To:	ListServ@listserv.umkc.edu
Subject:	[Does not matter]
Text in body of message	Signoff Dirt

For information on other commands, send the message Help to the listserv address.

DIRT has an alternate, more extensive coverage that includes not only commercial and general real estate matters but also focuses specifically upon residential real estate matters. Because real estate brokers generally find this service more valuable, it is named “Brokerdirt.” But residential specialist attorneys, title insurers, lenders and others interested in the residential market will want to subscribe to this alternative list. If you subscribe to Brokerdirt, it is not necessary also to subscribe to DIRT, as Brokerdirt carries all DIRT traffic in addition to the residential discussions.

To subscribe to Brokerdirt, send an e-mail to:

To:	ListServ@listserv.umkc.edu
Subject:	[Does not matter]
Text in body of message	Subscribe Brokerdirt [your name]

To cancel your subscription to Brokerdirt, send an e-mail to:

To:	ListServ@listserv.umkc.edu
Subject:	[Does not matter]
Text in body of message	Signoff Brokerdirt

DIRT is a service of the American Bar Association Section on Real Property, Probate & Trust Law and the University of Missouri, Kansas City, School of Law. Daily Developments are copyrighted by Patrick A. Randolph, Jr., Professor of Law, UMKC School of Law, but Professor Randolph grants permission for copying or distribution of Daily Developments for educational purposes, including professional continuing education, provided that no charge is imposed for such distribution and that appropriate credit is given to Professor Randolph, DIRT, and its sponsors.

DIRT has a WebPage at: http://www.umkc.edu/dirt/