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

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Evictions: Serving Residential Tenants

Posted on February 10, 2017 by Robert P. Dickson

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.

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

Posted on February 23, 2013 by Robert P. Dickson

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
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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.

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What is the estate’s personal representative (executor) allowed to do with a decedent’s real property during probate during probate? (Answer: a lot)

Posted on December 30, 2012 by Robert P. Dickson

Imagine this: a loved one has died and you are left to be the executor/personal representative of the estate.  This person owned real property (a house or condo perhaps).  Now, an individual’s estranged daughter moves in and starts living in the home without permission from the estate.  What obligations or rights do you have as the executor/personal representative to the real property?

Pursuant to RCW 11.48.020 (full text below), the personal representative has the right to possess and manage real property of the estate during probate.  At common law, real property of the decedent was treated differently from personal property, as it vested in the heirs immediately upon the death of the owner.  So, the personal representative had nothing to do with the real property, including rents or profits.  The majority of states have changed the common law, like Washington, to allow the personal representative to have the immediate right to possess and manage real property, and to receive rents and profits of the estate.

 

Since in Washington a personal representative has the right to possess and manage real property, the biggest issue will likely be whether the home at issue is the property of the estate of the deceased.  Though it might not be applicable in the unlawful detainer action, if the personal representative is not collecting rent from the tenant, the failure to do so is arguably a breach of their fiduciary duties, as it could impact creditors’ claims in the probate action (and thus harm Frisbie, if ultimately she is found to only be a creditor). See e.g. City of Bellevue v. Cashier’s Check for $51,000 & $1,130.00 in US Currency, 70 Wash.App. 697, 855 P.2d 330 (1993) (administrator has a narrow ownership interest in estate real property for the limited purpose of satisfying the legitimate claims of creditors of the estate.).  As a general rule, an executor is accountable for his use of the deceased’s real property. In re Estate of Boston, 80 Wash.2d 70, 72, 491 P.2d 1033 (1971).

Interestingly, even the executor may utilize the house, however, where a person’s only right to possession of the property arises from his status as executor, if he chooses to use the house for his own benefit he must pay rent.  Id.; citing In re Estate of Hickman, 41 Wash.2d 519, 526-27, 250 P.2d 524 (1952).  RCW 11.04.250 also clearly indicates that an heir’s interest in the estate is limited by the claims of creditors, whose interests are represented by the administrator.  Until an estate is closed, the heirs may not treat estate real property as their own.  In re Estate of Peterson, 12 Wash.2d 686, 734, 123 P.2d 733 (1942)

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What can a tenant do when a landlord breaches the rental or lease agreement?

Posted on December 30, 2012 by Robert P. Dickson

For a tenant to exercise his or her remedial rights under the Landlord-Tenant Act (RCW 59.18), the following requirements must be satisfied:

1.  Tenant must be current on rent

2.  Tenant must give landlord notice of any defective condition in writing (the landlord then has statutorily-outlined time requirements in which to correct the defects.  RCW 59.18.070).  If the landlord is not given notice, the court will not expect him to have fixed the defect(s).

3.  Tenant must not prevent or thwart the landlord’s attempt at remedying the defect

4.  If the landlord still does not correct the defect, the tenant may elect one of the following remedies:

(a) terminate rental agreement, and vacate; (b) commence action in court; or (c) fix the defect and deduct the cost from the required rental payment; (d) seek a third party arbitrator or court determination which assesses the reduction of rental value of the property; (e) in the case of substantial danger to the health and safety of the tenant, he or she can request that a government conduct an inspection on the premises.  The inspector will then certify whether in deed the property is sufficiently dangerous, thus verifying whether withholding rental payment is justified; (f) seek authorization from a court or arbitrator to end the tenancy — this is only authorized when the defects are so drastic that they cannot be corrected.

For a more detailed description of the above guide, look to RCW 59.18.  It is important to note that tenants must follow these requirements strictly.  If a landlord can show that the RCW was not followed, he may defeat the tenant’s actions in attempting to correct the deficiency — meaning that the tenant may have violated the lease and is liable for subsequent damages.

Above all, if you are a tenant, be sure to keep paying rent!  The court will not go along with your actions IF it is shown that you are either deficient in the rent owed, or have unnecessarily withheld amounts that you rightfully owe.

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