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

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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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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 landlord do with personal property left over from a tenant?

Posted on December 30, 2012 by Robert P. Dickson

Under RCW 59.18.310(b) the landlord may immediately enter and take possession of any property of the tenant found on the premises and may store it in a reasonably secure place if the tenant defaults in rent and reasonably indicates the intention not to resume tenancy.   The landlord must make reasonable efforts to provide the tenant with notice containing the name and address of the landlord and the place where the property is stored, and informing the tenant that a sale or disposition of the property shall take place pursuant to RCW 59.18.310, and the date of the sale or disposal, and the tenants right to have the property returned prior to the sale under RCW 59.18.230.  The landlord may satisfy the notice obligations by mailing it first class, postage pre-paid to the tenant’s last known address and to any other address provided by the tenant.

The landlord must return the property to the tenant after the tenant has paid the actual or reasonable drayage and storage costs, whichever is less, if the tenant makes a written request for the return of the property before the landlord has sold or disposed of the property.

dsasadassaAfter 45 days from the date of the notice the landlord may sell or dispose of the personal property and apply any income from the sale against moneys due, including actual or reasonable costs of drayage and storage, whichever is less.

If the property is less valued at less than $250 the landlord may sell or dispose of the property after 7 days from the date of the notice of sale or disposal is mailed or personally delivered, provided the landlord makes reasonable efforts to notify the tenant.

If a writ of restitution has been executed by the sheriff, RCW 59.18.312 applies and the landlord’s rights differ slightly.  The landlord “shall” enter and take possession of tenant property found on the premises, and may store the property in a reasonably secure place, with the option of selling or disposing of the property.  The landlord must store the property if the tenant serves him with a written request to do so within 3 days after service of the writ.  Without such service the landlord may elect to store the property.  If the tenant objects to the storage the property must be deposited upon the nearest public property and may not be stored by the landlord.

Before the landlord is entitled to a sale of the property valued at over $250 he must give notice to the tenant via first-class mail or personal delivery.  For property valued at $250 or less the landlord may sell or dispose of the property after seven days from the date the notice is mailed or delivered to the tenant.  Any income generated by the sale may be applied against any moneys due the landlord for drayage and storage of the property.

 

Photo Credit: Bill Longshaw, at Freedigitalphotos.net

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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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