CHAPTER 7 - EVICTIONS
The unlawful detainer action (i.e. eviction) is a special statutory procedure for the recovery of rental property. It is summary in nature, in derogation of the common law, and is strictly construed in favor of the tenant. Housing Authority v. Terry, Wilson v. Daniels, Sullivan v. Purvis, The policy in Washington regarding unlawful detainer actions that because they are special statutory proceeding limited primarily to the issue of possession, a dismissal in favor of the tenant does not preclude the landlord from bringing a separate civil action against the tenant for damages arising out of the eviction process. Phillips v. Hardwick; Mead v. Park Place Properties.
A Proving “Unlawful Detainer”
As in any civil action, the Plaintiff has the burden of proving the case. Although the burden of proof is “by a preponderance of the evidence,” several principals favor the tenant. The first principal is that Courts strictly construe unlawful detainer laws in the tenant's favor. See e.g. Housing Authority v. Terry. Another second principal is that the court should avoid the forfeiture of leases if possible. Stevenson v. Parker. Finally, any ambiguity in the lease must be construed against the landlord that supplied it. McGary v. Westlake Investors. This principle acknowledges the unequal bargaining power between the parties to a residential lease.
B. Jurisdictional Basis for Evictions
RCW 59.12.030 defines unlawful detainer and the basis for commencing an unlawful detainer. The following are the statutorily-defined grounds for unlawful detainer under pursuant to RCW 59.12.030:
1. Failure to vacate after expiration of a lease or rental agreement for a specified term (requires no written notice unless the contract itself requires notice);
2. Failure to vacate after service of a notice of termination of tenancy on a month-to-month tenant twenty days or more before the end of any monthly rental period.
3. Default in the payment of rent and failure to comply with a three-day notice to pay rent or alternatively, vacate the premises;
4. Breach of a covenant or term of the rental agreement and failure to comply with the terms of a rental agreement (or the tenant duties) or alternatively vacate after a ten day notice;
5. Failure to vacate after service of a three day notice for waste, nuisance, or unlawful business;
6. Failure of a person who has taken possession of the land with the permission of the owner and without color of title to vacate after service of a three day notice.
7. Committing or permitting gang-related activity at the premises in violation of RCW 59.18.130 (no notice specified, but legislative history presumes three-day notice to vacate).
Note that RCW 59.18.550 (pertaining to drug and alcohol-free residences) modifies a number of the notice requirements and provides for expedited unlawful detainer notices available for termination of rental agreements in federally subsidized, alcohol and drug-free housing.
In addition to providing an appropriate termination notice, the notice must be delivered or “served” to the tenant in accordance with RCW 59.12.040. There are three ways to serve the notice. First, the landlord must attempt to personally hand the notice to the tenant at the residence. If the named tenant is not present and someone other than the tenant who is of “suitable age and discretion” comes to the door, that person should be served, but the landlord must also send a copy of the notice by mail addressed to the tenant. The third means by which a notice may be served is to post the notice in a conspicuous place on the premises and also by mailing a copy to the tenant. If the notice must be mailed, it should be mailed by first class mail. The letter should not be certified.
If the tenant cannot be personally served, the notice be mailed and posted conspicuously on the premises. “Conspicuous” means on the door face out for everyone to see. A notice stuck in the door, or in an envelope, or slid under the door or put in a mailbox has not been posted conspicuously. In addition, if the notice must be mailed, the law provides one extra day for the tenant to comply, pay, vacate, or whatever. This can be an issue when the landlord serves a twenty-day notice terminating tenancy. If the landlord serves the notice on the 11th day of a month with 31 days and he or she must mail a copy by first class mail, the law allows one extra day. Does this mean that the landlord is trying to terminate the tenancy on the fist day of the next month? That would not be permissible because it is not at the end of a rental period. I advise my clients to serve twenty-day termination notices at least 21 days before the end of a rental period to avoid a potentially fatal problem.
Termination notices and proper service of termination notices are essential. If a tenant fails to comply with the terms of a notice, the landlord has no choice but to commence a lawsuit in Superior Court. A judge must decide if in fact the tenant is “unlawfully detaining” the premises.
C. The Judicial Process
The procedural requirements for unlawful detainer actions must be carefully followed. The basis for jurisdiction, i.e. the notice under RCW 59.12.130 and the way the notice is served under RCW 59.12.140 confer subject matter jurisdiction on the court. Sowers v. Lewis. Minor irregularities which would typically be either ignored or easily corrected in an ordinary civil action may result in dismissal of an unlawful detainer action. An improper notice deprives the court of subject matter unlawful detainer jurisdiction and agreement or stipulation of the parties cannot confer jurisdiction. Sullivan v. Purvis. Furthermore, The notice must be one of the notices specified in RCW 59.12.030. Turner v. White. The form and content of the statutory notice must substantially comply with the requirements of RCW 59.12.030. Sowers v. Lewis; Numerous informal notices of lease violations are not sufficient. Sullivan v. Purvis.
It is well established law in Washington that a tenant is entitled to service of notice exactly as required by RCW 59.12.040. Lowman v. West. Note that an extra day must be added to the notice period when the notice is mailed. RCW 59.12.040.
The bottom line is that if a judge finds that the notice does not comply with the statute or that it was not served in accordance with the statute, the judge has no choice but to dismiss the case because the Court lacks “subject matter jurisdiction.” Note that a defendant may raise the issue that the Court lacks subject matter jurisdiction at any time—even after the tenant has been physically evicted.
D. Procedural Due Process
Once jurisdiction is established, the Plaintiff must carefully follow the procedures for bringing an unlawful detainer action and bringing it before the Court.
If the summons does not comply with the strict requirements of RCW 59.12.070 and .080 and RCW 59.18.365 through 380, the court cannot adjudicate the matter. Kelly v. Schorzman,. A summons that affords a tenant fewer than seven days to respond is ineffective under CR 6. Canterwood Place, L.P. v. Thande.
The summons must be served as in other civil cases. CR 4; RCW 4.28.080-090. The summons must either be personally served on the defendant or a copy must be left at the defendant's “usual place of abode” with a “resident” therein of suitable age and discretion. There must be a delivery of the summons for effective service. "Usual place of abode" means the center of the defendant's domestic activity and the place where he or she is most likely to receive notice. Sheldon v. Fettig. "Resident" means someone who is actually living in the home, not someone who is merely "present" there. Salts v. Estes. Note that the defense of insufficient service of process is not waived by filing a notice of appearance . CR4(d)(5); Adkinson v. Digby, Inc.. Note finally that a tenant may answer orally or in writing at a show cause hearing under RCW 59.18.380, and an answer may be amended. CR15.
RCW 59.18.055 provides an alternate means for service of process. The court may authorize service of the summons and complaint by posting copies in a conspicuous place and mailing copies by both first class and by certified mail, return receipt requested. The plaintiff must exercise “due diligence” in attempting to personally serve the defendant.
E. Defenses to Unlawful Detainer
In addition to jurisdictional or procedural defenses, there are a number of substantive defenses. Substantive defenses include both legal defenses and equitable defenses.
Tenant No Longer in Possession of the Premises
If a tenant vacates the rental property before the unlawful detainer action is commenced, the complaint for unlawful detainer should be dismissed. Kessler v. Nielsen; Tuschoff v. Westover.
No landlord-tenant relationship
Another defense to unlawful detainer is the lack of a landlord-tenant relationship. In cases where there is no landlord tenant relationship but there is a dispute as to possession, the party out of possession must ordinarily bring an Ejectment action under RCW 7.28 rather than an unlawful detainer action. Turner v. White. Note that unlawful detainer is appropriate to obtain possession of real estate following a nonjudicial deed of trust foreclosure or real estate contract forfeiture. RCW 61.24.060; RCW 61.30.100(2)(c). See Savings Bank v. Mink.
Retaliation
Under RCW 59.18.240 it is unlawful for a landlord to “retaliate” against a tenant for asserting his or her rights under the Residential Landlord-Tenant Act. Typically, retaliation arises as a defense in an unlawful detainer action based upon a twenty-day notice to terminate tenancy, RCW 59.12.030(2), or upon failure to pay a rent increase alleged to be retaliatory. Note that under RCW 59.18.250, complaints made in good faith to a governmental agency(e.g. the Health Department) involving the landlord’s failure to substantially comply with code or statutory violations that affect the tenant's health or safety creates a rebuttable presumption for 90 days following the complaint that the landlords attempt to evict the tenant are “retaliatory. Note further that under RCW 59.18.250, there is a rebuttable presumption that a complaint to a governmental authority is made in bad faith when the tenant is not current in the rent.
Discrimination
Discrimination has been found to be a defense to unlawful detainer. Josephinium Assoc. v. Kahli. Discrimination includes a failure to reasonably accommodate a disabled tenant, and at least one court has concluded that a reasonable accommodation can be requested anytime before a physical eviction occurs. Radecki v. Joura.
Landlords are prohibited from discriminating against tenants on the basis of sex, marital status, familial status, race, creed, color, national origin, or the existence of a sensory, mental or physical handicap. 42 U.S.C. § 3604; RCW 49.60.030 and .222. Local ordinances may prohibit other forms of discrimination. For example, Seattle's Open Housing Ordinance (No. 104839, Chapter 14.08 of the Seattle Municipal Code) also prohibits discrimination based on age, sexual orientation, political ideology, or Section 8 participation.
Breach of the Implied Warranty of Habitability
A tenant who is being evicted for nonpayment of rent may claim that no rent is owing because the landlord failed to make needed repairs. This defense is referred to as the warranty of habitability defense and is based upon case law, not the Residential Landlord-Tenant Act. Foisy v. Wyman. The warranty of habitability defense is based upon the premise that the landlord has a duty to provide a livable dwelling which the tenant is not permitted to bargain away, even in exchange for a lower rent. Therefore, it does not matter whether the tenant knew about the repair problems at the beginning of the tenancy. Foisy v. Wyman.
In Foisy v. Wyman, the court describes a two-step process the court is to follow if breach of the implied warranty of habitability is alleged as an affirmative defense to an unlawful detainer. First, the court must decide whether the unit was totally or partially uninhabitable during the tenancy. Second, the court must determine what the reduction in the rental value for the unit should be during the term of the tenancy. If the tenant's obligation to pay rent is totally off-set by the landlord's breach, then the unlawful detainer action should be dismissed. If the court finds the repair problems only justify a partial reduction in the rent, and the tenant withheld more than this amount, judgment for the rent found owed and for possession will be granted in favor of the landlord. Since the defense of breach of the implied warranty of habitability is judicially created, the tenant does not have to give written notice to the landlord, as required before using the repair remedies in the Landlord-Tenant Act. Nor does the tenant have to be current in rent to assert the defense of habitability. RCW 59.18.080 and Foisy v. Wyman. The major difficulty in asserting the defense of breach of the implied warranty of habitability is in accurately determining the amount of rent which the tenant is entitled to withhold.
Local Ordinances
Some local governments have adopted regulations that provide additional protections for tenants and may be the basis for an affirmative defense to an unlawful detainer action. For example, Seattle has adopted a local ordinance that requires that a landlord have "good cause" to terminate a residential tenancy. Seattle Municipal Code, § 22.206.160. Failure to comply with the ordinance justifies dismissal of an unlawful detainer action. Housing Authority v. Silva.
Equitable Defenses
Most of the equitable defenses that can be asserted in an ordinary civil action may also be asserted in an unlawful detainer action. Defenses such as estoppel, laches, and waiver are not uncommon. See CR 8(c); CR 12(b).
Waiver
A Landlord waives the right to proceed in unlawful detainer once he or she accepts rent. Note that inexcusable delay in returning a rent check has been held to constitute acceptance. Tipton v. Roberts et ux.
A related waiver defense manifests itself when a landlord accepts current rent, he or she waives the right to base an eviction on the tenant’s failure to pay an older month or months’ rent. In MH 2 Company v. Hwang. Note however, that a landlord does not waive defaults in rent by accepting rent after a three-day notice if he applies the receipts to the earliest rent first and there is still some rent owing for the period before the notice. Housing Resources Group v. Price. Finally, in Hwang v. McMahill, the landlord did not waive her right to proceed with an unlawful detainer action by accepting partial payment of late rent from a third party that was applied to unpaid utilities. A landlord waives its right to proceed with an unlawful detainer action when he or she accepts the full amount of rent after the action is commenced. Housing Authority of Grant County v. Newbigging. Acceptance of rent with knowledge of breaches of a lease or rental agreement constitutes a waiver. Wilson v. Daniels.
Tender of rent into the court is not a defense to an action based upon nonpayment of rent. Young v. Riley.