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Beginning the Eviction (Unlawful Detainer) Process in Washington: Notice, Service of Process, and the Show Cause Hearing

Posted on December 30, 2012 by Robert P. Dickson

Washington has a very streamlined legal process for landlords to evict a tenant called an unlawful detainer action (assuming, of course, that the landlord is justified in doing so). RCW 59.12.030 defines unlawful detainer, and outlines many of the grounds for eviction. Because the unlawful detainer action simplifies and expedites the eviction process for the landlord, Washington has very specific statutory rules that landlords (and their attorneys) must follow in order for the eviction to be effective. Proper notice and proper service on the tenant are essential parts of an unlawful detainer action.

Notice

Before the landlord can begin the actual legal action against the tenant, notice must first be given to the tenant to vacate the premises for reasons stated in RCW 59.12.030. To do so, the landlord must follow one of three options outlined in RCW 59.12.040 by either (1) leaving a copy of such notice with the tenant personally, or (2) leaving a copy with a person at the residence and also sending a copy via mail to the residence, or (3) posting a copy in a conspicuous place at the residence, leaving a copy with anyone at the residence, and sending a copy via mail to the residence. As a practical matter, it would be wise to document each step in this process to prove compliance with this procedure, which is usually done by affidavit.

If the tenant does vacate the premises, the landlord can immediately take possession of the premises and, pursuant to RCW 59.18.310, can seek to recover from the tenant outstanding rent owed, if any. If the tenant left behind personal property at the premises, look here for a discussion on what the landlord may or must do.

Commencing the Action (Summons and Complaint)

If the tenant does not vacate the premises, an unlawful detainer legal action is required to effectively evict the tenant. To begin, just like in any other civil action, the landlord must file a summons and complaint (or, better yet, have an attorney do so). If rent is owed, the complaint should provide the amount. The summons must state, among other things, the timeframe within which the tenant must respond. See RCW 59.12.080; RCW 59.18.365. In other civil actions, the timeframe is typically 20 days, but because this action is more streamlined, RCW 59.12.070 allows a landlord to require response within as few as seven days (although no more than thirty days).

To properly serve the defendant with the summon and complaint, the same process is required for service as in other civil actions, see RCW 59.18.365, which generally requires personal service, or if the court allows, by publication.

Show Cause Hearing

Along with the summons and complaint, the landlord can also obtain from the court, and serve on the tenant, an order requiring the tenant to appear in court at a show cause hearing. See RCW 59.18.370. Conveniently, the timeframe for the tenant to appear at this hearing can be exactly the same as the timeframe as required for the tenant to respond to the summons and complaint (i.e., within as few as seven days, but no more than thirty days). What makes this hearing so useful for the landlord is that, at the hearing, the burden is on the tenant, rather than the landlord, to show cause (or prove) why the property should not be restored to the landlord. This hearing is the most expeditious way for the landlord to retake possession of the premises because, if the tenant cannot do so, or if the tenant fails to appear altogether, then the court will typically order the sheriff to restore property to the landlord. The court may also grant to the landlord other requests made in the complaint, such as payment of outstanding rent.

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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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Landlords — don’t forget about the deposit!

Posted on December 30, 2012 by Robert P. Dickson

In a recent case, I encountered an interesting issue regarding deposits held by landlords.  Specifically, what happens to a tenant’s deposit once the landlord/tenant relationship has ended (either the tenant has moved out or abandoned the property, or, the landlord has removed him or her)?  In the Landlord-Tenant Act, RCW 59.18.280 outlines what needs to happen —

“Within fourteen days after the termination of the rental agreement and vacation of the premises or, if the tenant abandons the premises as defined in RCW 59.18.310, within fourteen days after the landlord learns of the abandonment, 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. No portion of any deposit shall be withheld on account of wear resulting from ordinary use of the premises. The landlord complies with this section if the required statement or payment, or both, are deposited in the United States mail properly addressed with first-class postage prepaid within the fourteen days.

The notice shall be delivered to the tenant personally or by mail to his last known address. If the 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 landlord is also barred in any action brought by the tenant to recover the deposit from asserting any claim or raising any defense for retaining any of the deposit unless the landlord shows that circumstances beyond the landlord’s control prevented the landlord from providing the statement within the fourteen days or that the tenant abandoned the premises as defined in RCW 59.18.310. 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. In any action brought by the tenant to recover the deposit, the prevailing party shall additionally be entitled to the cost of suit or arbitration including a reasonable attorney’s fee.

Nothing in this chapter shall preclude the landlord from proceeding against, and the landlord shall have the right to proceed against a tenant to recover sums exceeding the amount of the tenant’s damage or security deposit for damage to the property for which the tenant is responsible together with reasonable attorney’s fees.”

The important thing to remember is that the landlord has a mere 14 days to provide either an explanation of why the deposit has not been tendered (or to ask for more time).  After that 14-day window, the landlord is functionally barred from making any defenses to keeping the money and may actually have to pay more.  So, to all those landlords out there: be sure to take care of the deposit issue within that 14-day deadline.

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