• Cliff Coulter

Eviction | Be Ready For Your Tenant's Defense

Updated: Sep 13

We’ve made it quick and convenient for you to view a few of the most common eviction legal issues in Washington State. In this blog post we’ll share some arguments you may face in your next eviction.



Evictions:

Tenants Union of Washington describes an Eviction as "an unlawful detainer action to remove a tenant from a property who stays in the unit past their legal right to."


Unlawful detainer includes:

  1. Holdovers after expiration of term

  2. Following expiration of termination of a month-to-month or periodic term

  3. Following 14-day notice to pay rent or vacate (rental agreement may modify notice period)

  4. Following 10-day notice to remedy an obligation under the rental agreement other than payment of rent (rental agreement may modify notice period)

  5. If the party is without permission of the owner to be at the premises then LL can bring 3-day notice to quit.

Nonetheless, the Landlord (LL) must do everything in an unlawful detainer lawsuit properly, because the procedures are strictly construed against The LL. The types of procedures that may be strictly construed against the LL are vast and complex in evictions. Some defenses for plaintiffs may be:

  1. The Address is incorrect on your pleadings. The Sheriff will not execute the Writs of Restitution unless you have the address that exactly Matches the GIS records.

  2. If the Defendant moves out. However, The LL may still pursue judgment or send the tenant to collections. Return of keys is typically a benchmark for moving out. The lawsuit filed will list the unknown possessors as John Does.

  3. No other tenants are at the property. If others remain at the property the unlawful detainer lawsuit may continue. The LL can give a 10-day notice if others are living at the property and are not on the lease.

  4. LL can create a tenancy based on their actions. For example, acceptance of money creates LL/Tenant relationship.

  5. Subleases can still be evicted by LL even though they do not have a contract with LL.

  6. Is your possession of the premises conditional? For example, employee/employer relationship or clean and sober housing. If so, then the LL/Tenant Act may not apply.

  7. Ambiguity in the lease is construed strictly against the LL.

  8. A written lease agreement is required to collect security. The lease must lay out any late fee relating the tenancy. LL must show that the late fee was a reasonable estimate of the loss caused by the late payment when the lease was entered.

  9. Any provision of the lease that waives a right given to the tenant under the LL/tenant act may result in actual damages as well as reasonable attorney's fees and costs for the landlord's violation.

  10. Attorney's fees can only come from the statute or a written agreement.

  11. The Judge can award attorney's fees to a prevailing tenant or a prevailing LL in an eviction under certain circumstances.

  12. A landlord can recover court costs and costs for process service. Tenant's can recover reasonable attorney's fees even if the attorney provides services at no-cost.

  13. A written rental agreement can expand what is recoverable. Many leases convert to month-to-month tenancies upon the expiration of their term. Check the lease to see if any additional fees exist when it converts. If the lease does not mention the fee and the landlord does not give the tenant 30-day notice then the tenant cannot be charged the fee.

  14. Not all of the court documents need to be signed by the Landlord. For example, even if the Landlord forgets to sign his declaration, the judge may take the LL's testimony the day of court. However, many pro se landlords get to the show cause hearing and find out there are one or more documents that they did not file that they needed to.

#Eviction #Landlord #Tenants #RealEstate #Investing

Improper summons

A landlord must serve the summons by personal service.  The person serving the tenant may not be a party to the action.  RCW 5.18.365(3) provides a template for the Eviction Summons.  The landlord must provide a response date with no less than seven days and no more than thirty days from the date of service. However, your local rules may have different response dates.

Show cause hearing / Payment Plans

The judge will set a hearing on the order to show cause no less than seven and no more than thirty days from the date of service of the order upon defendant. If the eviction is financial, then the judge can enter a repayment plan, for example ninety days. A judge may consider the following:

  1. Willful or intentional default

  2. exigent circumstances

  3. ability to timely pay off

  4. has tenant otherwise substantially complied with lease in the past

  5. If it will cause a hardship to the tenant

  6. if there has been other notices in the past. For example, two 10-day notices.

Negotiating with Late Tenants

The notice for late tenants extended from 3-day to 14-days. Thus, if you have a late tenant it may make sense to serve your tenant with a 14-day notice right away. You may want to also move to a month to month tenancy as opposed to a lease term, so you do not have to rely on 14-day notices as heavily. Furthermore, if you have three late payment notices served in the prior twelve months then this may take away the tenant's payment plan option in court.

Landlord Mitigation Fund

Landlords can apply to recover some of their judgment. However, if they do not have the funds then the landlord has to wait in line for more funding to come available.

After the Show Hearing

You can take your signed documents and writs to the clerk. Some Judges will let you walk the order down to keep the process moving. Get the clerk to sign five Writs of Restitution. You will also need to bring a copy of the Judge's signed order with you to the Sheriff's Department.

Partial Release

What if one tenant is moving out because the other tenant is an issue? The tenant moving out is still on the hook for the remainder of the lease term. If the tenant refuses to pay then you can evict them. However, maybe you can agree for the tenant to pay off the remaining lease term with payments installments attached to a judgement. Once the payments are complete then the judgment is paid off and the lease agreement terminates. In exchange, you can mutually agree to an order of limited dissemination.

It will be a partial release because the remaining problem tenant will not be released and remain obligated to pay for the remainder of the lease.

Late Fees

Can I evict for late fees? No. You can only recover in court up to $75 for late fees per month. Notice posting fees may be part of lease agreement. So you can still put those fees back in your complaint.


Payments must apply to rent first.

Attorney's Fees

Attorney's fees are generally not awardable. Unless, your tenant is behind at least two months and in excess of $1,200. In addition, you cannot get attorney's fees if your tenant defaults.

10 day notices for example:

  • changed locks

  • horder

  • built a structure

  • not picking up yard

Increase in Rent

Increases in rent should be made at least 60 days from the end of the monthly term. Thus, get it in two months prior. If you have a new lease agreement then you can increase rent, for example, up to market rate.

Alternative service

If service is attempted 3 times in prior five days. Then automatically authorized alternative service by mail and post.

Collections

You can send unpaid nonrecurring charges to collections.

Squaters

If someone is staying at your rental without permission then you can take it directly to the sheriff for eviction.

Mobile Homes

If they rent the mobile home and the lot then Residential Landlord Tenant Act likely applies.

What do I need to show for an unlawful detainer?

  1. Show that they are a tenant

  2. Show that the tenant is liable for unlawful detainer

  3. Make it clear that you as the landlord are entitled to possession

  4. Service and time must be strictly complied with

Show cause

  • Disputed facts may require a trial

  • No water and heat for 3 months I do not think I owe money - set it for trial

  • Must authenticate evidence

  • Can't use hearsay

  • Raise the rodent infestations

  • Ask for set-offs

  • Accounting should be simple

There are some risks associated with a show cause hearing. Your attorney has not had an opportunity to collect discovery, which means that your lawyer has no idea what the tenant will say or bring with them to court.


The procedural effect of the hearing is that it is summary and without prejudice. Thus, you could be back in court in merely a couple of weeks if their is a genuine issue of material fact. If the issue cannot be resolved then it will be set for trial. Most landlords have representation at the show cause hearings. However, the expense is greater for landlords who go to trial.


The tenant during this period will have to pay rent and the disputed money into the court registry and not to the landlord.

Theory of the case

You should present the judge with why your client should win in a clear one minute story board. The burden is on the landlord to show why a writ of restitution should be ordered by 51% over why the write of restitution should not be ordered.

Settlement offers

Attorney's have to take all settlement offers to their clients. However, only clients can accept settlement offers. Thus, it may be beneficial for landlords to show up to the show cause hearing if a deal can be made.

Subsidize housing

Speak with an attorney if you are renting subsidized housing. Typically tenant's in subsidized housing have more defenses at their disposal.

Nonpayment of Rent

Most evictions are for nonpayment of rent so be ready to serve notices and to collect late fees.

Alternative to Eviction

If the eviction process is not available for you as a landlord then the ejectment procedure is likely your alternative. For example, you let your buddy couch surf at your house for a few months, but he never paid a dime in rent. Ejectment is typically a much longer court process than an eviction, and thus not typically the best option.

Comply or vacate notices

  • 10 day notices - RLTA

  • 20 day notice - MHLTA

Are they reasonable?

Were there attempts to comply?

Does the tenant have a disability?

Depending on these answers are judge has the discretion to make a reasonable accommodation for the tenant if requested.

Weaver

In Weaver there was nonpayment of rent by the tenant. However, the landlord later accepted the back rent. The court may look at this as the landlord waiving their argument for eviction. You should look to see if you have a non-waiver clause in your agreement.


This could also apply to a 10-day notice to comply, when the landlord had knowledge of the tenant's breach, but failed to enforce the breach.

Is the notice too old?

Your notice may have a 60-day limit.

Disability

For example, maybe your tenant has poor eyesight and can't read the notice. The tenant may request to have the notice in a different format and the Landlord must comply.

Eviction related to Covid-19

For example, if a tenant fails to let the landlord into their property, fail to pay by mail, and not going to landlord's office for paperwork. These may fall under eviction, but now may a tenant may have grounds for a reasonable accommodation request to delay the writ of restitution.

Human Rights Commission

If someone is being discriminated against then the Human Rights Commission may step in.

Washington Attorney General

If someone is violating Gov. Inslee's Eviction Moratorium then the Attorney General may step in.

Essential paperwork for your tenant's case

Your tenant will likely bring the following to court:

  • Brief

  • Case law

  • Order of dismissal

  • Evidence

  • Written points in bullet points

Set-overs

A show cause hearing can typically be set out a week out to prepare orders.

What if my tenant does not respond?

Your tenant does not typically need to respond to your petition, but merely needs to provided a notice of appearance and show up to the show cause hearing.

Evidence

Your tenant should submit evidence in good order. Hearsay and other rules of evidence apply at the show cause hearing.

Testimony

You want your testimony to be as descriptive as possible so the Judge gets a fair picture of your testimony.

How judges review for unlawful retainer:

A judge may do the following to prepare for a UD docket:

  • Look for responses and defenses raised

  • Research the laws

  • Go on an issue spotting adventure

  • Organize the issues

  • Look at facts mutually agreed upon

Lawyers and subject matter experts are helpful for the judges to show whether statutes have changed. This helps them know what the issues are. It is important to always be respectful and gracious in court.

Agreements

You can always talk with the other side. This may result in the tenancy being reinstated and coming up with a payment plan. This may be a better option than trying to collect a judgment from the tenant in a reasonable amount of time.


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