UNLAWFUL DETAINER CASES
In order to answer the questions you might have about what to expect in
connection with your case, we would like to acquaint you with the general
manner of handling tenant eviction cases in our office. Of course, each
case is unique and handled in its own way, but in general, all unlawful
detainer cases will be treated in the same basic manner. Please feel free
to contact our office if you have any questions about your case at any time.
1. TENANT NOTICES PRE-REQUISITE TO EVICTION
In general, before evicting a tenant, the landlord must serve one of the
required written eviction notices. Where a tenant is delinquent in rent he
must be served with a fourteen-day notice to pay rent or quit premises. A
similar fourteen-day notice is used in the case where a tenant commits waste or
maintains a nuisance while on the premises. A month-to-month tenancy may be
terminated without giving a reason by giving notice of at least twenty days
prior to the commencement of the next rental term (i.e., twenty days before
the end of the month). As well, a combination fourteen and twenty day notice
may be used which says, in effect, “you must pay your rent in fourteen days or
get out, and even if you do pay your rent I want you out by the end of the
month.”
The rules for serving a termination or eviction notice are very specific and
must be clearly followed. The notice must be served either (1) by
delivering a copy personally to the person entitled thereto; or (2) if he is
absent from the premises, by giving a copy to a person of suitable age and
discretion found there and sending a copy through the mail to the tenant; or
(3) if the above methods can’t be accomplished, by posting a copy of the
notice on the front door and sending a copy through the mail to the tenant.
Under method (2) and (3), the tenant is given one additional day to comply
with the notice. Under method (2) and (3), the notice must be mailed by
first class mail from within the county of the rental premises.
2. FILING OF A LAWSUIT
If the tenant fails to move or comply with the eviction notice, a lawsuit
must be filed to remove the unwanted tenant. It is illegal for a landlord
to lock a tenant out or to take the tenant’s property because the tenant
fails to comply with the eviction notice.
The lawsuit is commenced by filing and serving a Summons and Complaint for
Unlawful Detainer.
The Summons tells the unwanted tenant that a lawsuit has been commenced to
have him removed from the landlord’s premises. He is allowed not less than
seven nor more than thirty days in which to formally respond to the lawsuit.
The Summons also describes the nature of the action and the relief sought.
The Complaint states the facts on which the landlord seeks to recover, i.e.,
facts establishing that the tenant remains unlawfully on the premises and
facts establishing that the landlord has complied with eviction notice
provisions. If unlawful detainer for nonpayment of rent is charged, the
Complaint alleges the amount of the delinquency. Finally, the Complaint
contains a list of the relief which is requested of the court. Typically,
this would include termination of the rental agreement, and order to remove
the tenant from the rental unit and judgment for delinquent rent, damages to
the premises, attorney’s fee and costs.
3. RELIEF BY DEFAULT
As stated above, the tenant will have been given a date by which he must
formally respond. This date will be not less than seven nor more than
thirty days from the time he is served with the Summons and Complaint. If
he fails to respond to the Summons and Complaint by the stated date, a
default judgment granting relief to the landlord may be issued by the court.
In addition to filing his formal answer, the tenant must, within seven days
of the receipt of the Summons and Complaint, (1) pay the rental arrearage
into the registry of court; or (2) submit to the court a sworn statement
denying that rent is due. If this is not done an order of the court may
issue, causing the tenant to be removed from the premises.
4. SHOW CAUSE HEARING
In the event that the tenant contests the basis for eviction, the tenant is
entitled to a Superior Court hearing. To expedite this procedure, it is our
practice to request an order signed by the court, addressed to the
tenant/defendant, directing him to appear before the judge and show cause,
if any he has, why he should not be removed from the landlord’s property.
A hearing for this purpose will be scheduled on the day following the return
date stated on the Summons discussed above. It will be necessary for the
landlord to accompany me to court. If the tenant does not appear, relief in
favor of the landlord will be summarily granted. If the tenant shows up we
will be called upon to explain our case to the judge whereupon the judge
will ask the tenant to respond. Assuming we are able to substantiate our
case, the judge will grant relief to the landlord at the conclusion of the
hearing.
The time required to complete the hearing is usually fairly brief. However,
waiting for our case to be called may take as long as three hours. The
landlord should bring with him his file concerning the rental unit including
the original rental agreement, account ledger, copies of notices given and
papers and notes concerning transactions with the client. The landlord
should be prepared to respond to specific questions concerning the tenancy.
5. SHERIFF’S INVOLVEMENT
If default relief is granted, or if the tenant loses the court hearing, the
Court will order the sheriff to physically evict the unwanted tenant and
remove the property from the unit. Only the sheriff, not the landlord, can
physically remove a tenant that does not comply with an eviction notice and
only after a Writ of Restitution has been issued. The sheriff’s involvement
begins when copies of the Writ are delivered to his office. The sheriff
will deliver a copy of the Writ to the tenant and inform him that he has a
matter of days (usually three to five) before a sheriff’s deputy returns to
forcibly remove him from the premises. The cost of this initial sheriff’s
service is not less than $75.00 plus mileage. In most cases this is all
that is required to get the tenant out.
6. TRIAL
Rarely a tenant will file the appropriate paperwork and will present
a case of enough sufficiency to get by the show cause hearing. That is, he
will have convinced the judge that there remains a legitimate, disputed,
material factual issue, the determination of which necessitates a trial.
When the issue is joined, the action does not go on the normal trial
calendar but takes precedence over all other civil actions. The law
provides that when the issue is joined, and it appears that plaintiff should
not be restored to possession prior to trial, the court shall order the
parties to proceed to trial within 30 days. Defendant is entitled to jury
trial, but must file a jury demand.
If plaintiff wins, court enters judgment for restitution of premises
and for any damages and legal expenses. Fees incurred for trial preparation
and court attendance will be billed at the customary hourly office rate.
7. LIABILITY FOR ATTORNEY’S FEES AND COSTS
In addition to the Superior Court filing fee and process server’s fee we may
require that an initial attorney’s fee retainer to be negotiated be paid
prior to commencement of proceedings against the tenant. This is a flat fee
covering all services required to remove the unwanted tenant, except a trial
on the merits in the unlikely event that that becomes necessary. When the
court rules to evict the tenant the tenant will also be held liable for the
attorney’s fees paid by the landlord to handle the eviction lawsuit.
8. COLLECTION ACTION
Sometimes the tenant pays the amounts awarded to the landlord at the time
relief is granted. In other cases the tenant is unable or unwilling to pay
the judgment voluntarily. In such cases, collection efforts including
execution against the tenant’s property and garnishment of his wages and
bank account must be instituted. The cost of doing this would be in
addition to the eviction charges. However, in most cases costs of
collection will be assessed and paid out of garnishment and execution funds.
9. TENANT’S PERSONAL PROPERTY (RCW 59.18.312)
The law provides that at the time the Sheriff executes a writ of
restitution, the landlord must enter and take possession of the tenants’
property found on the premises. The landlord may store the property in any
reasonably secure place (including on-site) unless the former tenant objects
to storage. The landlord may sell or dispose of the property if the former
tenant fails to retrieve in accordance with the strict procedures outlined
below. The Landlord shall store the property in any reasonable place if the
former tenant requests in writing that the landlord store the property. This
written request must be made within three days (excluding the date of
service, weekends and legal holidays) after the Sheriff has served the writ
of restitution RCW 59.18.312 as amended requires the landlord or the
landlord’s attorney to provide a form to the former tenant that includes
mandatory language for requesting storage. This mandatory form is served on
the tenant at the time the Sheriff serves the writ of restitution.
If the former tenant does not request storage or if the landlord does not
want to store the property, the property “must be deposited upon the nearest
public property and may not be stored by the landlord.” RCW 59.18.312(1). If
however, the tenant has a disability that impairs or prevents the former
tenant from making a written request for storage, the law presumes that the
former tenant wants the property stored unless the disabled former tenant
requests in writing that the landlord not store the property. The statute
does not indicate how a tenant who cannot request storage in writing can
demand in writing that the landlord not store the property.
Property stored under RCW 59.18.312 must be returned to the former tenant
after the tenant has paid the lesser of the actual or reasonable moving and
storage costs or until the property has been sold or disposed of by the
landlord in accordance with the procedures discussed below.
Prior to selling or disposing of the property, the landlord must notify the
former tenant in writing of the pending sale or disposal. If the cumulative
value of the property is one hundred dollars or less, written notice must be
hand delivered or mailed to the former tenant at his actual or last known
address, the sale or disposal will take place after seven (7) days. The
landlord must retain the former tenant’s personal papers, family pictures,
and keepsakes. “If the cumulative value of the property is more than $100,
written notice must be hand delivered or mailed to the former tenant at his
actual or last known address that the sale or disposal will take place after
thirty (30), the landlord may dispose of the former tenant’s personal
papers, family pictures and keepsakes. The statute does not offer any
guidance whatsoever as to how landlord’s determine the value of the
property. For that reason, I typically advise my clients presume a value of
$100 or more. In any event, landlords always should take photographs of the
premises at the time the Sheriff executes the writ of restitution. If the
tenant requests storage, I advise my clients to take a photographic
inventory of the property stored.
The statute authorizes the sale of the tenant’s personal property after the
expiration of the applicable time period, but the statute does not address
the issue of the commercial reasonableness of the sale. The landlord may
apply any income derived from the sale of the former tenant’s property,
however, against moneys due the landlord for moving and storing of the
property. The amount of sale proceeds that the landlord may apply towards
such costs may not exceed the actual or reasonable costs for moving and
storage of the property. In the highly unlikely event that the income
derived from the sale of the property exceeds the reasonable or actual
moving and storage costs, the excess must be held by the landlord for the
benefit of the tenant for a period of one year from the date of sale. If no
claim is made or action commenced by the tenant for the recovery of the
excess income prior to the expiration of that period of time, the balance
must be treated as abandoned property and deposited by the landlord with the
Department of Revenue pursuant to RCW 63.29. Note that the landlord cannot
lawfully apply the proceeds of the sale to moneys owed to the landlord for
rent, repairs, attorney fees etc. The sale proceeds may be applied only to
the reasonable or actual moving and storage costs.