December 30, 2013

Step 1: Determine which laws apply

- RCW 59.12

• Forcible entry
• Forcible detainer
• Unlawful detainer
• RCW 59.16: unlawful entry and detainer

- RCW 59.18: Residential Landlord- Tenant Act (RLTA or the “Act”)
- RCW 59.20: Mobile Home Act 283

Step 2: A rule or obligation of the tenancy exists

• Almost all such rules are contained in the rental agreement
• Rules may be established by past conduct or writings between the parties
• Tenants may never commit waste
• Rules may be changed with 30 days written notice before the end of the rental period

Step 3: The rule has been violated

• Failure to pay rent
• Damage to premises
• Improper use of premises
• Failure to provide proof of insurance
• Failure to comply with local laws
• Failure to vacate at termination of lease

Step 4: The violation can be proved

Good record keeping is essential to prove non-payment or improper payment of rent

• Residential landlords must give tenants written receipt for any payments if requested in writing. RCW 59.18.063

• Noise complaints can be tricky to prove without witnesses
• Damage complaints may require a condition checklist to prove

Step 5: The landlord gives the tenant written notice of default

- Three-day notice to pay rent or vacate

• Alternative language is required
• Only rent! (cf. Papini Brothers v. Lawrence, 2009 Wn.
• App. LEXIS 3048 (December 7, 2009 unpublished)
• (Late fees are directly related to the failure to timely pay rent and proper in notices)).
• Utilities are not rent. First Union Management v. Slack, 36 Wn. App. 849, 857 n.7, 679 P.2d 936 (1984).
• Damage deposits are not rent

 - Ten-day notice to comply or vacate

• Alternative language is required
• Generally, for all defaults except failure to pay rent

 - Three-day notice of termination for waste, nuisance or illegal activity
 - “20-day” notice of termination of tenancy
 - Lease may provide for more time

Step 6: The notice is served properly

- RCW 59.12.040

1. Hand delivery to tenant; then
2. Hand delivery to person of suitable age and discretion and mailing; then
3. Affixing to the door and mailing

- Lease terms may require notice other parties including corporate HQ, co-signers guarantors, etc.
- Notify everyone
- Get a declaration of service of the notice
- Anyone may serve a notice

Step 7: The landlord waits the appropriate period of time

- One extra day required if the notice is not served personally (RCW 59.12.040).
- Weekends count for three-day notices as of November 2007. See, Christensen v.  Ellsworth, 162 Wn.2d 365, 173 P.3d 228 (2007) (reversing Christensen v. Ellsworth, 134 Wn. App. 295, 139 P.3d 379 (Div. 3, 2006)).

• CR 6(a) does not apply to the calculation of the threeday period required by RCW 59.12.030. “The unlawful detainer notice is a three day waiting period for the landlord before an unlawful detainer action can be commenced rather than a deadline for the tenant to act.” Id.

- Ten-day notices may require the landlord to wait a “reasonable” time

Step 8: The tenant does not comply and no waiver

• Partial compliance is not compliance and may be rejected by the landlord unless it is unreasonable to do so.

• If the landlord accepts payment of rent after expiration of a notice it waives compliance with that notice. Hwang v. McMahill, 103 Wn. App. 945, 15 P.3d 172, 177 (2000).

• If a tenant pays rent after expiration of a ten-day notice it waives compliance with that notice. Id. (quoting Wilson v. Daniels, 31 Wn.2d 633, 644, 198, P.2d 496 (1949)).

• The landlord does not necessarily waive the right to proceed with an unlawful detainer by accepting only partial rent. Hwang v. McMahill, 103 Wn. App. 945, 15 P.3 172, 177 (2000). However, the landlord should issue a new notice for the balance due. Duvall Highlands v. Elwell, 104 Wn. App. 763, 768, 19 P.3d 1051, 1054 (2001).

• If a tenant pays rent after termination of tenancy by “20-day” notice it may establish a month-to-month tenancy. However, cf Leda v. Whisnand, 150 Wn. App 69, 207 P.3d 468 (2009) (After termination of lease there must be mutual assent to form a new contract)

- When may the landlord accept rent?

Three-day notice to pay rent or vacate
 - Within compliance period

• Landlord must accept full tender of rent.
• Landlord may reject partial payment.

 - After compliance period

• Landlord may refuse rent.
• Landlord’s acceptance of any amount satisfies the notice. Landlord must start with a new notice  to pay rent or vacate.

Ten-day notice to comply or vacate

Within compliance period

• Landlord may accept rent as it comes due.

After compliance period

• Split of authority. Landlord may be able to accept rent, but there is risk the court will find that the landlord’s action of accepting rent despite knowledge of breach waives his right to rely on that notice to bring an action.

Notice of termination (“20-day” notice)

Pending termination date

• Landlord may accept rent as it comes due.

After termination date

• Accepting rent will reinstate the tenancy and vitiate the notice of termination of tenancy.

After commencing action

Landlord may not accept any amount.

Step 9: The landlord elects to terminate the tenancy

- Landlord must not accept rent from the tenant if it is maintaining the tenant has no right to be there.

- Landlord must not—EVER—take any “self-help” remedies:

• Distress for rent;
• Change locks;
• Withhold services (e.g. turn off heat).

Step 10: Commence unlawful detainer action

• Summons must contain statement of relief sought. RCW 59.12.080.
• Double rent in commercial cases based on 3-day notice
• Summons language statutory in residential cases. RCW 59.18.365. (See Truly v. Heuft, 138 Wn. App. 913, 158 P.3d 1276 (2007) (Landlord’s failure to use recently amended statutory summons deprived the court of subject matter jurisdiction.))
• Summons may contain requirement that residential tenant pay rent into the court registry. RCW 59.18.375.
• Summons returnable between 7 and 30 days of service. RCW 59.12.070.
• Form of complaint set out in RCW 59.12.070.
• Consider “hip pocket” service.
• Alternative service (posting and mailing) available for residential cases only. RCW 59.18.055. Alternative service in commercial cases by publication, posting and mailing is recognized.

New developments in landlord-tenant law

• The monetary value for when to store tenants’ personal property abandoned or left behind after an eviction has been raised to $250.00. RCW 59.18.310 and .312.
• Landlords are now proactively required to provide a written receipt for rent paid in cash. RCW 59.18.063.
• Out-of-state landlords may now be sued in Small Claims Court with 60 days’ notice. RCW 59.18.060(14).
• Landlords must specify a period of time when entry will occur when providing notice to enter to inspect or make repairs. RCW 59.18.150(6).
• Tenants are entitled to receive one free additional copy of the lease or the inspection checklist from the landlord. RCW 59.18.065 and RCW 59.18.260.

Prepared and Presented by:
Evan L. Loeffler
Law Office of Evan L. Loeffler PLLC

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