Commentary on Washington State law and how it Relates to real Estate

Robert P. Dickson

Robert P. Dickson

Robert P. Dickson is an partner at Dickson Law Group, PS and a member of its real estate and environmental law practice groups. Though most of his work is carried out through commercial litigation, he focuses on real estate, corporate, and environmental law. Much of his practice consists of representing clients in advancing their real property rights against public as well as private entities. Mr. Dickson also teaches a real estate litigation course at the Seattle University School of Law. His experience includes: Easements Adverse possession and trespass Boundary line adjustments Unlawful detainer Land use/zoning Foreclosures Landlord/tenant Real estate transactions (e.g. Deeds of Trust, Promissory Notes, Real Estate Contracts, etc.) Model Toxic Controls Act (including CERCLA), and other environmental regulations Corporation and limited liability company formation and representation Administrative appeals Professional Associations Tacoma/Pierce County Bar Association Washington State Bar Association Young Lawyers Association J. Ruben Clark Society Master Builders Association Associated General Contractors Education Juris Doctorate, The George Washington University Law School, 2007 Bachelor of Arts, Brigham Young University, 2003 Bar Admissions Washington State Bar Association Western Federal District Court of the State of Washington Publications Zoning and Land Use Petition Act, Land Use and Environmental Law Chapter XXIII, Washington Lawyers Practice Manual Real Property Practice Chapter XIV, Section 9, Foreclosure and Realization, Washington Lawyers Practice Manual

Evictions: Serving Residential Tenants

As a landlord, before you can evict a tenant, you must follow processes and procedures with exactness. That includes serving tenants with notices and court paperwork.

Serving Notices

RCW 59.18.030 outlines the reasons a tenant can be evicted. In virtually all situations, that statute requires that you serve a notice in advance before you can begin the court process, such as a notice to pay rent or vacate. To serve one of these notices, you must serve a copy of the notice to each tenant by either personally handing the notice to the tenant, or by posting it in a conspicuous place on the property and mailing the notice by certified mail, return receipt requested.

Serving the Eviction Summons and Complaint

If the tenant does not comply with the notice or vacate the property, then the next step in the eviction process requires you have someone serve the tenant with an eviction summons and a complaint. The general rule is that you serve the summons and complaint just like any other legal action, which means that it must be personally served to the tenant or an occupant that is “of suitable age and discretion” (which usually means an adult or older child).

But what if the tenant is evading service—hiding and refusing to answer the door? Assuming you’ve attempted service with diligence, RCW 59.18.055 allows you to get a court order allowing you to serve the summons and complaint by posting at the property and mailing by both certified and regular mail. The catch is that you have to make sure that the deadline for the tenant to answer is at least nine (9) days after the date of posting.

It cannot be emphasized enough that the eviction process requires you to follow procedures with precision, where even a slight misstep may require you to start all or party of the process over again. There are various strategies to the eviction process, and seeking the advice of an attorney can be very helpful in approaching these situations.

Featured on Lexis Nexis: The Importance of Fences in Adverse Possession

Dear Fellow Readers,

We recently published an article on Lexis Nexis about The Importance of Fences in Adverse Possession:

It is often said that tall fences make good neighbors. In the world of adverse possession, the presence of a fence can often be the difference between winning or losing.

You may view the full article by clicking here:

http://www.lexisnexis.com/legalnewsroom/real-estate/b/real-estate-law-blog/archive/2015/10/13/the-importance-of-fences-in-adverse-possession.aspx

Thank you,

Dickson Law Group

Featured on Lexis Nexis: Fixing the Location of a Floating Easement

Dear Fellow Readers,

We recently published on article on Lexis Nexis about Fixing the Location of a Floating Easement:

An express easement is the written form of a nonpossessory right to use another party’s real property. (This is unique compared to prescriptive, necessary, and implied easements which form by the contextual use of property or by the relative ownership positions of the property owners.) For express easements to be valid they typically must describe the portion of the burdened property with reasonable certainty. For instance, it is typical to see an easement for ingress and egress to reserve the “northern 10 feet of Lot X for a driveway for ingress/egress for Lot Y.”

You may view the full article by clicking here:

http://www.lexisnexis.com/legalnewsroom/real-estate/b/real-estate-law-blog/archive/2015/10/09/fixing-the-location-of-a-floating-easement.aspx

Thank you,

Dickson Law Group

Featured on Lexis Nexis: Legal Description Specificity and the Statute of Frauds

Dear Fellow Readers,

We recently published on article on Lexis Nexis about the Legal Description Specificity and the Statute of Frauds in real estate:

The statute of fraud and deed rules work in concert. Typically, these laws mandate that certain deeds, leases, agreements, and other property transfers, be written and contain specific components. Statute of frauds issues most common touch upon real property transfers. In virtually every jurisdiction in the United States, the law requires that for a transfer of real property to be valid, it must be done in writing and contain the signatures of the granting/transferring parties.

You may view the full article by clicking here:

http://www.lexisnexis.com/legalnewsroom/real-estate/b/real-estate-law-blog/archive/2015/10/08/legal-description-specificity-statute-of-frauds.aspx

Thank you,

Dickson Law Group

How Do I Get a Land Use Variance?

Use Land Variance in Seattle or TacomaCertain geographical areas and buildings can be reserved by the local government for specific purposes. For example, zoning laws set out which properties must be used for residential purposes and which properties must be used for commercial purposes. Laws may also become more specific, such as dictating maximum height of buildings, the types of external structures allowed, and more. Such laws are often referred to as the Land Use Code because they, simply put, dictate how the land in question may legally be used.

However, situations do arise when you wish to gain special permission from the government to go against the zoning or land use regulations. In such cases, you would have to apply for a land use variance [1] from the correct city zoning or planning department. [2] A variance is not a change in the law itself, but is a special exception for a certain property owner. You must follow specific steps in order to apply for an be grated such a variance.

First, you must generally show the following:

• The variance would not cause harm to neighboring properties or present public health or safety risks
• You would suffer undue hardship if you were forced to abide by the law
• The variance will still uphold the purpose of Land Use Code
• The variance is the minimum necessary relief for you

You must also provide a detailed description of your proposal, documentation to support your project, and more. The government agency will review all variance applications and decide to grant or deny them on a case-by-case basis.

Contact a Seattle and Tacoma real estate law firm today to schedule a consultation

Limitations on how you may use your property can have a significant impact on your quality of life or ability to operate your business. Fortunately, in many cases, land owners and leaseholders can obtain land use variances that provide individual exceptions to Seattle’s myriad zoning regulations. The process of obtaining a variance can be a complicated, often requiring the presentation of substantial evidence. For a free 15-minute consultation with one of our experienced Seattle & Tacoma real estate lawyers, call our office today at (206) 621-1110 or (253) 572-1000 for assistance.

Our Offices

Dickson Law Group PS
1201 Pacific Avenue Suite 2050
Tacoma, WA 98402

Dickson Law Group PS
701 Fifth Avenue Suite 4201
Seattle, WA 98104

References:

[1] http://en.wikipedia.org/wiki/Variance_%28land_use%29
[2] http://www.seattle.gov/dpd/default.htm

What are the tax implications if you go through a foreclosure, short sale, or deed-in-lieu? (Hint: potentially not good)

A question recently arose when dealing with a client facing the loss of a distressed property: “how am I taxed if I should allow the property to go through the foreclosure process? Am I taxed on the balance of the loan that is not collected as a result of the foreclosure.” The short answer is that yes, you’re probably exposed to some tax liability. (This also goes for short sales and deeds-in-lieu of foreclosure when the bank elects to waive whatever deficiency it could have obtained.)

Typically, when debt is cancelled by a creditor, it results in ordinary income to the debtor. For instance, if you owe someone $50,000 and they simply forgive that debt, then you’ll be responsible for income of $50,000 for the year that the forgiveness took place. There are other tax considerations that offset this impact potentially, but the general rule applies.

However, there are nuances in the tax code when it comes to foreclosure. According to the IRS, if your loan is a non-recourse loan (meaning that the lender’s ONLY remedy in the case of default is to foreclose/repossess the property), then any deficiency above and beyond that amount is not considered taxable. So, is Washington a “non-recourse” state? It is and it isn’t – but for tax purposes, it does not matter. According to RCW 61.24.100(1), a bank cannot obtain a judgment for the deficiency after a typical non-judicial foreclosure. One would assume that this means that Washington law supports the idea that its home loans are non-recourse. But it isn’t that simple.

Washington law affords the lender two pathways to foreclose on property and collect against a homeowner in the event of a breach: a non-judicial foreclosure (where the bank forecloses through the Deed of Trust law, which is by far the most common), or judicial foreclosure (where the bank actually sues the homeowner and compels sale of the property through a Sheriff’s sale). It is this option between the two methods of foreclosure which is key to why homeowners are likely taxed for the deficiency in the event of a foreclosure.

The IRS’s guide described it thus:

A non-recourse loan is a loan for which the lender’s only remedy in case of default is to repossess the property being financed or used as collateral.That is, the lender cannot pursue you personally in case of default. Forgiveness of a non-recourse loan resulting from a foreclosure does not result in cancellation of debt income.

So, while there is a temptation to think that if a bank cancels whatever remaining debt that results from a judicial foreclosure (short sale, deed-in-lieu), one escapes having to report the cancellation as income, it is not the case. Because the banks have the option to pursue either a judicial or non-judicial foreclosure at the time the agreement was entered into, it is likely that the homeowner will be subject to taxation of whatever deficiency was waived or cancelled.

(Please note that this firm is not an accounting firm, nor does it specialize in tax law. The US tax code is complex and the debt cancellation issue is one that is impacted by many other factors which are not discussed here. If you believe you may be facing such an issue, our advice would be to consult with a tax attorney or certified public accountant for clarification.)

An overview of real property trespass

With a few exceptions, the legal doctrine of trespass is governed by common law precedent. (Common law is developed over time through decisions made by courts. Statutory law, or simply “statutes,” are laws created by and through legislatures.) The tort of trespass states that someone may be liable for damages if he or she interferes with another person’s possession of real property. For property owners, there are two statutes which govern trespass onto property: RCW 4.24.630 and 64.12.030.

20130226-211041.jpgRCW 4.24.630 states that someone who wrongfully goes onto the land of another and removes timber, crops, minerals, or other similar valuable property from the land, or wrongfully causes waste or injury to the land, is liable for treble damages plus attorney’s fees. Wrongfully is defined in the statute when a “person intentionally and unreasonably commits the act or acts while knowing, or having reason to know, that he or she lacks authorization to so act.”

RCW 64.12.030 is more narrow in comparison to 4.24.630. In that provision, a trespasser is liable for treble damages if he or she damages trees or shrubbery of another. There is NO attorney’s fees provision, as is found in 4.24.630, however the same treble damages component is available. (It should be noted that damage caused to property that is purely incidental to the removal of the subject timber/trees does not count as another statutory violation and is instead, subsumed into the treble damages.)

These statutory damages are primarly related to injury to property (or the plants/trees contained thereon). If a statutory remedy is not available, that does not preclude typical tort liability as dictated by case law (i.e. when someone interferes with the possessory right of another). In fact, the tort of intentional inflection of emotional distress is available to Plaintiff and not precluded by virtue of the existence of RCW 4.24.630 or 64.12.030.

A natural question to pose after looking at those trespass rules, is what to do about pollution? A trespass may be an ongoing trespass (such as a water pipe from on property unlawfully directing water onto another person’s property), thus, how does the law handle issues of pollution where vast quantities of particulates are spread over large geographical areas? The court requires a Plaintiff to satisfy the following 4-part test in order to be eligible for damages:

1) The invasion must affect an interest in exclusive possession of property; AND
2) The party must be intentionally doing the act which results in the invasions; AND
3) The polluting party must reasonably foresee that the act done could result in an invasion of plaintiff’s possessory interest; AND
4) Finally, there must be substantial damages to the res.

<a

How long does a homeowner have to remain in the home after a foreclosure sale takes place?

A common question we get is how long after a foreclosure has taken place can the owner of the property expect to stay in the home? The answer can be found in the RCW:

The purchaser at the trustee’s sale shall be entitled to possession of the property on the twentieth day following the sale, as against the borrower and grantor under the deed of trust and anyone having an interest junior to the deed of trust, including occupants who are not tenants, who were given all of the notices to which they were entitled under this chapter. The purchaser shall also have a right to the summary proceedings to obtain possession of real property provided in chapter 59.12 RCW.

61.24.060. Rights and remedies of trustee’s sale purchaser–Written notice to occupants or tenants, WA ST 61.24.060
20130223-154951.jpg

After the 20 days have run, the party attempting to gain possession of the property must then follow the procedures contained in RCW 59.12. This statute covers the rules and procedures to evict someone from a property. If you include the statutory time it takes to execute the actual eviction, a property owner might expect to stay in the property for another several days. A smart strategy would be to negotiate a payment from the new owner of the property. Under the right circumstances, they may be willing to pay a modest relocation payment so as to avoid the hassle of having to try and push through the eviction procedures.

Housing market in recovery? Yes, but signs show there will be a slow down in 2013

Writing for Housing Wire, Megan Hopkins reports that the housing prices are likely to top out at modest increase in value:

Despite beginning the year with market lows, most home prices gained momentum toward the end up 2012, finishing the year at 4.9% year-over-year price gains. Some markets, though they are few, may also suffer a backslide in values.

According to the latest Clear Capital home data report, national home prices are expected to increase by only 2.1% this year. The 2013 yearly gains are expected to be smaller partly because homes are starting on a higher price base, but the entire explanation is more complex than that, Clear Capital notes.

While many western localities are seeing the firming up of housing prices, there are still several areas that could potentially see a shift down in pricing:

Only eight markets are projected to see prices fall in 2013, including Denver; Louisville, Ky.; Charlotte, N.C.; Philadelphia; Atlanta; Baltimore; Chicago and St. Louis. For those eight markets, average declines should come in at just 0.9%.

Thankfully, the Seattle area housing market continues to lead the charge in the beleaguered housing recovery:

Seattle, a market with a strong recovery already in the works, is expected to see the highest gains of the top 50 major metro markets at 13.5%.

A word on the HAMP program

Since the beginning of the recession in 2008, loan modification programs have been available primarily through the Home Affordable Mortgage Program (HAMP). If a homeowner was unable to quality, the individual mortgage company could offer its own programs.

Normally, the goal of a modification is a lower monthly payment through reduced interest rates, elongating the term of the loan, principal balance reduction, or a combination of all. Our firm has helped clients since the downturn’s beginning with modifications. We have seen a tremendous amount succeed through the lowered interest rates and/or lengthening the loan. Seldom, however, did lenders reduce principal balances. But now they are. Over several months, we have seen an uptick in this remedy, sometimes several thousand dollars or even tens of thousands in reduced balance. We have seen eliminations of entire second mortgage balances.

You may have heard of the settlement five banks reached with the federal government, called the New National Mortgage Settlement. In February 2012, the federal government and 49 states (Oklahoma did not participate) entered into a settlement with the country’s five largest loan lenders: Ally, Bank of America, Citi Bank, JPMorgan Chase, and Wells Fargo. In the settlement, $25 billion is set aside for mortgage relief to underwater homeowners, $17 billion of which for loan modifications and principal reductions.

As we watch the effect of this settlement unfold, we can only assume it will further benefit the homeowners who qualify though they must be borrowers of the settling banks or servicers. In a later Blog entry, focus on eligibility will be discussed.

–Contributed by Michael P. Dickson