Idaho Land Law

A Blog Discussing Current Issues of Land Use, Real Estate, and Construction Law in the State of Idaho.

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Landlords Beware - Recent Ruling Clarifies Tenants' Ability to Sue for Long-Standing Uninhabitable Conditions

Depositphotos © vicnt2815

Depositphotos © vicnt2815

The scenario: (1) Idaho tenant rents a house with alleged uninhabitable conditions but continues to live in the house for years; (2) tenant sends a letter to landlord demanding that landlord correct the uninhabitable conditions within three days or tenant will sue; (3) landlord refuses; and (4) tenant sues…  What happens? 

The answer may surprise you but the Idaho Court of Appeals in William D. Rekow v. Ronald Weekes held that the tenant can pursue damages from the date the tenant first rented the home with uninhabitable conditions and is not limited to damages from the date landlord received the notice to cure. 

Idaho, like many other states, recognizes what is commonly referred to as the “implied warranty of habitability.”  The “implied warranty of habitability” is the concept that a residential property will be “habitable” for the tenant even if the lease does not specifically require the landlord to make repairs.  Idaho has enacted a statutory version of the “implied warranty of habitability” under I.C. § 6-320

In order for an Idaho tenant to sue under I.C. § 6-320, the tenant first must provide notice to the landlord and allow the landlord three days to cure the breach or failure.  Specifically, it requires that the tenant give written notice “listing each failure or breach upon which his action will be premised and written demand requiring performance or cure.” For each failure or breach listed in the notice that has not been cured by the landlord within three days after the notice was given, the tenant may pursue a claim for under I.C. § 6-320.

The question for the Idaho Court of Appeals was whether or not the tenant’s damages began to accrue after the three day notice letter or whether damages accrued from the date the uninhabitable condition occurred (in this case nearly fifty-five months worth of damages).  The Court of Appeals answered this question by stating that the “damages begin when the implied contractual provision is breached.” 

This ruling provides some exposure to landlords that do not correct defective conditions within the three day cure period provided by the statute.  With this ruling the landlord could be liable for treble damages due to conditions that existed for years on the property.  Given this exposure, the prudent thing for a landlord to do is to correct such deficiencies within the three day cure period and remove the ability for a tenant to proceed with a lawsuit under I.C. § 6-320.

Idaho’s Quick Answer to a Tenant’s Failure to Pay Rent



Each state has its own set of rules relating to how quickly a property owner can remove a non-paying tenant.  Having practiced for a number of years in Kansas and Missouri, I was pleasantly surprised to learn Idaho has a quick procedure to put an owner back in possession of its rental property.  In Missouri and Kansas, the process can takes months and often causes significant financial hardship on landlords.  Fortunately, Idaho has an expedited process that takes only days… 

The process is fairly straightforward and governed by Title 6, Chapter 3 of the Idaho Code.

First Step: Provide Tenant with a Notice of Violation

The Notice of Violation must be either delivered to the tenant in person or left with a competent person at the property and also mailed to the tenant.  Typically, I like to use a process server for the delivery of the Notice of Violation. This allows me to use the process server’s affidavit of service in preparing the complaint for unlawful detainer. 

Sometimes, it is impossible to locate a tenant or find a competent person at the property.  In those instances, the landlord should: (a) post a copy of the notice in a conspicuous place on the property; (b) leave a copy of the notice with any person living at the property; and (c) mail a copy of the notice to the tenant.  You can use a process server for posting the Notice of Violation but request that they complete an affidavit stating they posted the Notice on the property.  I always request the process server take a photograph of the posted Notice of Violation. 

The Notice of Violation should provide the amount of rent owed, and state that the tenant has three days to pay all amounts due to landlord or surrender possession of the property. It should also include a statement that regardless of whether the tenant surrenders the property, the landlord will be entitled to bring a separate legal action to collect accruing rents under the lease.  Finally, the Notice of Violation should state that the tenant may be required to pay the landlord’s attorney fees should the landlord be successful in an eviction proceeding.

Second Step: Complaint for Unlawful Detainer

After service of the Notice of Violation and failure of the tenant to cure within the three days, the landlord can move for eviction of the tenant by filing a complaint for unlawful detainer.  This is relatively straightforward and an expedited trial on the complaint will occur within five to twelve (12) days after the tenant has been served with the complaint.  The tenant can request a continuance but only for two days, unless the tenant deposits additional security with the court clerk.

One thing to remember is that recovery of past due rent must be pursued in a separate action.  The goal of the expedited unlawful detainer action is to put the landlord back in possession of its property and not to assist the landlord in recovery of amounts owed by the tenant.  Often it may not be worth pursuing a defaulting tenant for past due rent due to legal costs and the unlikelihood of recovery.

Third Step: Eviction

Most tenants will voluntarily leave the premises after the court has issued its order instructing them to vacate the property.  Sometimes it is necessary to file a writ of restitution and have the sheriff remove the tenant and its property from the premises. All these steps cost the landlord time and money but may be necessary to obtain possession of the property. Hopefully, through proper planning (credit checks, references, and security deposits) you as a landlord can minimize risk and avoid having to evict a tenant.    

Look for a future blog post on what to do with a tenant’s personal property post eviction or when a tenant abandons its personal property. 

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