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LANDLORD TENANT AND EVICTIONS: QUESTONS & ANSWERS:

CONTENTS

How Do I Start An Eviction?
What Kind of Notices Start an Eviction?
What Should I Include in the Notice?
How is the Notice to Vacate Delivered to the Tenant?
What If the Tenant Fails to Comply?
What Defenses Could a Tenant Have to an Eviction or Unlawful Detainer Action?
How is the Eviction or Unlawful Detainer Action Started?
How is the Summons and Complaint for Unlawful Detainer Served or Given to the Tenant?
What if the Tenant Avoids Being Served the Unlawful Detainer Action?
What Happens After The Tenant Is Served With The Unlawful Detainer Lawsuit?
What Will the Tenant Do After Receiving a Lawsuit?
What Are Some Tactics Used By Tenants to Delay the Proceedings?
What Happens If The Tenant Contests The Unlawful Detainer Lawsuit?
What if the Tenant Tries to Settle with Me?
What Do You Do if the Tenant Tenders payment in Full After the Landlord Filed the Unlawful Detainer Action, but Before the Trial?
How Does the Landlord Prepare for the Unlawful Detainer Hearing in Court?
What if the Tenant Fails to Appear at the Eviction Hearing?
What is a Judgment?
What if the Tenant Appears for the Court?
What is a Writ of Restitution?
What Do I Do With the Security Deposit?
How Do I Collect the Judgment for Monies?
How Long Do Unlawful Detainer Actions Take?

How Do I Start An Eviction?

In order for a Landlord to initiate the eviction process, Washington law requires all persons residing in the premises to be served with a Notice. The most common types of notices are discussed below. If preparation or service of the Notice is done incorrectly or not at all and the tenant raises it as a defense, the Court will usually dismiss the Landlordís complaint for eviction and the tenant will prevail at Court.

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What Kind of Notices Start an Eviction?

Landlord Tenant

A. The 3 Day Notice To Pay Rent or Quit

This Notice is used when the tenant has failed to pay the full rent due and owing for the particular rental period.

B. THE 20 DAY NOTICE TO TERMINATE TENANCY

A 20 day notice may be used to terminate a month to month tenancy. It cannot be used to terminate a fixed term lease agreement during the term of the lease. The notice must be served at least 20 days before the end of the rental period. The landlord does not need to state a reason for termination. However, the reason must not be illegal such as one based upon discrimination. One exception is within the City of Seattle where you may use this notice only for certain circumstances and must state the reason.

C. THE 10 DAY NOTICE TO CURE BREACH OF CONRACT OR QUIT

This type of notice is used when the tenant has breached some material term of the rental agreement other than non payment of rent, i.e., No Pets clause, subletting without Landlordís consent, or not paying utility fees. The Notice essentially gives the tenant ten full days to correct the violation or move out of the premises. Tenant will normally contest notice of this type in court so it is essential that the Landlord have witnesses, photographs and other evidence to prove to the court that the breach did in fact occur. In a situation where there is a pet or constant late payments, it is better to simply serve a 20 Day Notice to terminate the tenancy (if it is a month to month) so that the tenant has additional time to vacate and has fewer arguments to resist. A 20 Day Notice reduces the chances that the case will be contested at court since most tenants deny that they have breached the lease.

D. THE 3 DAY NOTICE TO QUIT FOR COMMITTING A LEGAL NUISANCE

This notice is used when the tenant is engaging in criminal activity or other acts that are harmful to other occupants of the property or the property itself, thereby constituting a legal nuisance. Such acts include cutting down trees, illegal drug activity, prostitution, and in some cases gang activity. Again, the Landlord is advised to have independent witnesses (other tenants who observed the illegal activities), police officer testimony and other evidence to sustain the Landlordís burden of proof should the tenant contest the matter at trial.

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What Should I Include in the Notice?

All tenants named in the rental agreement must be listed on the notice as well as the names of all other occupants known. If the name is not known, you should designate the person as John, Jane Doe or other occupants. The complete property address must be on the notice including the apartment number of the unit if applicable. The exact amount of rent must be demanded in the notice. You need to be sure to sign and date the Notice.

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How is the Notice to Vacate Delivered to the Tenant?

The landlord should take care to deliver the notice properly because if an unlawful detainer is filed, the landlord must be able to prove to the court that the tenant received the notice. The best way to deliver the notice is to hand it directly to the tenant. You may also deliver the notice to vacate to a person of suitable age residing at or in charge of the leased premises. Giving the notice to a five year old would not be sufficient whereas a teenager might be. Sometimes tenants are not home or will not come to the door. It is proper to simply post the notice on the front door in an obvious place. If the notice is posted or given to anyone other than the tenant, you will need to mail a copy of the notice to tenant the same day by first class mail. Certified mail is acceptable as long as a copy is sent by first class mail, too. Whoever delivers the notice to vacate is required to sign a declaration or affidavit under the penalty of perjury on when, where and to whom the notice was given and if required when and where the notice was mailed. While it may be legal for the landlord to deliver the notice to vacate, you should consider having a third party deliver the notice. The advantage is that the third party would be an independent person and would not have an interest in the issue of whether the tenant is evicted or not. It would be harder for the tenant to challenge the service of this notice.

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What If the Tenant Fails to Comply?

If the tenant does not comply after receiving the notice and the expiration of the notice period, the landlord may be required to file an unlawful detainer or eviction lawsuit in the Superior Court to evict the tenant and get a judgment for the amount owed. Before filing an unlawful detainer lawsuit, the landlord must make sure the tenant does not have a valid defense to the eviction lawsuit. The unlawful detainer action is limited in scope. The only issue is who has the right to possession of the property. Usually, if the landlord has a written lease agreement requiring rent or an established month to month tenancy and the tenant has not timely paid the rent, the landlord has the right to possess the leased premises. There are some exceptions set out in the law that can be a defense. A landlord should not file an unlawful detainer action if the tenant has a valid defense.

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What Defenses Could a Tenant Have to an Eviction or Unlawful Detainer Action?

A tenant may have a defense to an unlawful detainer if the landlord has not complied with the landlord duties under Washington Residential Landlord and Tenant Act. A landlord is required to maintain the premises in a fit and habitable condition. The landlord must comply with applicable health and safety codes, make repairs necessary to keep the premises in a fit and habitable condition, and maintain in safe working order electrical, plumbing, sanitation and air-conditioning or appliances. Some residential rental property such as a single family home may allow the tenant to have exclusive control over water and electricity supplied to the property. A lease can specify that the tenant is responsible for obtaining and paying for water and electricity. If a lease does not specifically provide that the tenant is responsible for providing water and electricity to the premises, the landlord is obligated to provide it. If the landlord fails to met the obligations imposed on residential landlords by the Residential Landlord and Tenant Act, the tenant may undertake certain actions including deducting the costs of the repairs from the rent, depositing the rent with the court and even vacating and not be required to pay rent in serious situations. The procedures are set out in the law and the tenant needs to follow those procedures.

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How is the Eviction or Unlawful Detainer Action Started?

Generally, the attorney will prepare the summons and complaint for unlawful detainer and have it served on the tenant before filing it with the appropriate court. This is done so that if the tenant vacates, the lawyer will not file the unlawful detainer action and save the filing fees. If the tenant provides an answer to the complaint, then the eviction lawsuit must be filed and hearing dates set.

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How is the Summons and Complaint for Unlawful Detainer Served or Given to the Tenant?

The landlord must have the summons and complaint for unlawful detainer served on the tenant immediately. It is the landlordís responsibility to make sure the summons and complaint are properly served. The police or sheriff may serve process. The landlord may use a private process server to attempt personal service. The landlord may not serve the summons and complaint for unlawful detainer. If your process server succeeds in obtaining personal service on the tenant, he or she will file an ďaffidavit of serviceĒ with the court. Your process serverís affidavit is usually all you will need to prove service. He will file the affidavit with the court prior to the trial. However, because of the short time line for unlawful detainer actions, sometimes the affidavit of service does not make it to the courtís file before the trial date. For this reason, it is always good to bring a copy of the affidavit with you to court the day of trial. Ask your process server to fax a copy of the affidavit to you the day before trial.

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What if the Tenant Avoids Being Served the Unlawful Detainer Action?

The alternative method of service involved posting the summons and complaint on the front door of the residence and on the same day sending the summons and complaint by mail to the tenants address. Using the alternative method of service, the law deems the tenant to have received service of process three days after the process (the paperwork) is mailed concerning the eviction. The alternative service method may be used only if you have attempted personal service. If your process server cannot serve the tenant, he or she will file an ďaffidavit of attempted serviceĒ. The landlord must be able to prove to the court that the landlord attempted personal service without success. At that time the landlord may obtain an order for alternate service. If service is by alternate service, the landlord may obtain a writ for an eviction but no money judgment. If landlord fails to serve the summons and complaint properly and timely on the tenant, the court will not evict the tenant at the hearing.

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What Happens After The Tenant Is Served With The Unlawful Detainer Lawsuit?

In many cases, the tenant will not respond to the unlawful detainer lawsuit so that the landlord can have a default judgment and order to the Clerk to issue a Writ of Restitution that instructs the Sheriff to return possession to the Landlord. The Sheriff drives to the property and posts a Notice to Vacate on the front door. If the tenant fail to vacate within 5 days, the Landlord contacts the Sheriff again who will come out a second time and return possession to the Landlord. This date is based upon how busy the Sheriff is. The Landlord needs to be prepared to move the property of the Tenant within an hour or less. The Sheriff will not help move property but will prevent the tenant from interfering with the landlord moving tenants property. It is advisable to change the locks so that the tenant cannot return to the property.

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What Will the Tenant Do After Receiving a Lawsuit?

After being served with process, the tenant may file a written answer to complaint with the court and attempt to defend against the eviction. However, in the vast majority of cases, the tenant has no legal defense to the eviction and does not even file an answer.

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What Are Some Tactics Used By Tenants to Delay the Proceedings?

The Tenant may file an answer to the eviction action. This is the most common pleading filed by tenants and means that they want to go to have a trial with the Landlord. Many Answers do not have merit but some do contain legitimate defenses which will have to be analyzed by the property owner to determine the most expedient course of action. This is usually the case where there are severe habitability problems, fair housing issues, or other issues which will cause the Landlord to lose the case such as technical defenses. It is important to disclose these issues to your attorney as different procedures or steps that may resolve the problem can be considered. An Order to Show Cause is than prepared by the Landlord, signed by a Judge and then served on the Tenant requiring their appearance in Court between 6-12 days later to explain why possession of the property should not be returned to the Landlord. Unless the Tenant has raised legitimate issues, the Court will issue the orders for a writ of restitution. If a legitimate issue is raised by the tenant, the Court is required to set the trial within 30 days of receiving the request for trial. When the Landlord meets his or her burden of proof at trial and the tenant fails to present any evidence to defeat the Landlordís case in chief, the court will awarded the Landlord possession of the premises, forfeiture of the rental agreement, damages for past due rent, attorney fees, if applicable, and court costs. The proceedings for a writ of restitution are instituted in the same manner as for an uncontested case explained above.

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What Happens If The Tenant Contests The Unlawful Detainer Lawsuit?

Some tenants may have good and legitimate defenses to an unlawful detainer action. In those cases, the tenant should win the case against the landlord if there are glaring deficiencies in the landlordís paperwork or serious habitability problems with the premises. A tenant may have a defense to an unlawful detainer if the landlord has not complied with the landlord duties under Washington Residential Landlord and Tenant Act. A landlord is required to maintain the premises in a fit and habitable condition. The landlord must comply with applicable health and safety codes, make repairs necessary to keep the premises in a fit and habitable condition, and maintain in safe working order electrical, plumbing, sanitation and air-conditioning or appliances. Some residential rental property such as a single family home may allow the tenant to have exclusive control over water and electricity supplied to the property. A lease can specify that the tenant is responsible for obtaining and paying for water and electricity. If a lease does not specifically provide that the tenant is responsible for providing water and electricity to the premises, the landlord may be obligated to provide it. If the landlord fails to meet the obligations imposed on residential landlords by the Residential Landlord and Tenant Act, the tenant may undertake certain actions including deducting the costs of the repairs from the rent, depositing the rent with the court and even vacating and not be required to pay rent in serious situations. The procedures are set out in the law and the tenant needs to follow those procedures to take advantage of them. However some tenants try to delay evictions by filing answers or motions with the Court to attempt to delay the eviction proceedings. Many times, the tenant will not even bother to mail a copy of the answer or other motion to the landlordís attorney. It is frustrating to be involved with a tenant who does this.

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What if the Tenant Tries to Settle with Me?

After being served with the summons and complaint, tenants frequently contact their landlords and attempt to reach a settlement by paying less than the entire amount in arrears to entice the landlord to allow them to remain in the residence. Settlement discussions can be a problem for landlords. The landlord is not obligated at this point to accept a partial payment of the amount owed. A landlord who accepts a partial payment may waive the right to terminate the lease and may waive the right to have the court evict the tenant for the breach of the lease that is the basis of the unlawful detainer complaint. It is possible to accept partial payment and still proceed with the eviction if the landlord and tenant enter into a new written agreement continuing the tenancy, binding the tenant to pay the balance on a certain date and expressly giving the landlord the right to proceed on the ďoldĒ breach if the tenant breaches the new agreement. This should be in writing.

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What Do You Do if the Tenant Tenders payment in Full After the Landlord Filed the Unlawful Detainer Action, but Before the Trial?

The Washington Residential Landlord and Tenant Act says that if the rental agreement is for a stated period of time more than a month (usually a year), it is reinstated if the tenant pays all past due rent, reasonable late fees set forth in the rental agreement, attorneyís fees and court costs. If the tenant does in fact pay all amounts owed before the unlawful detainer trial, the complaint will be dismissed. The landlord may require that the amount owed be paid in cash or certified funds to insure that the debt is actually paid. If the rental agreement is a month to month the landlord is not required to accept payment.

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How Does the Landlord Prepare for the Unlawful Detainer Hearing in Court?

If it is necessary to actually have a court hearing to complete the eviction, the landlord must go into court prepared. The landlord must prove the case to the court. First, the landlord should assemble all of the documents necessary to prove the landlordís right to possess the premises. At a minimum, the landlord will need copies of originals of the following documents; 1. The lease, including all amendments to the lease. 2. The notice to the tenant. 3. Proof of delivery of the notice, and 4. The records that show the tenant failed to comply with the notice. These records can be a receipt book, ledger, or any written records or combination of records that evidence the tenantís payment and nonpayment of amounts owed under the lease. The landlord must also make sure that all of the landlordís witnesses appear at the trial. Usually, in an unlawful detainer action, there are only one or two witnesses. One witness is a person who can testify that a lease exists. Another witness is the person who served/posted and mailed the notice. The court usually accepts a declaration or affidavit of service, instead of live testimony. Another witness is the person who can testify to the court that rent has not been paid. Many times, all of these facts can be proven by one witness, or even just the landlord. The landlord must also be able to prove that process was properly served on the tenant. The landlord may prove proper service of process by submitting to the court the process serverís affidavit of service or the documents that show the alternative method of service was properly accomplished.

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What if the Tenant Fails to Appear at the Eviction Hearing?

At the time of the hearing, the judge will call the landlordís and defendantís names and look around the court room to see if anyone stands and approaches the bench. Since many of tenants donít show up for the hearing, the judge will only wait a few seconds before he looks down into the court file to review the copy of the complaint, notice and proof of service. The judge will have the witness testify. If the documents are present in the file, and assuming the landlord or his or her counsel are present in the courtroom, the judge will announce a judgment for the landlord (the plaintiff) and ask the landlord for a form of judgment. The judge will then sign the judgment and move on to the next case.

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What is a Judgment?

A judgment is a paper that records the courtís order in the case. It should say that judgment is granted to the plaintiff, that a writ of restitution for eviction is ordered, that the tenant is ordered to pay rent, penalties, costs and attorneyís fees to the landlord.

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What if the Tenant Appears for the Court?

When the court calls the landlordís case for trial, the landlord will have the burden proving his or her case. The landlord is the plaintiff. The plaintiff goes first, i.e., the plaintiff is the first party that presents evidence to the court. The plaintiff must present the documents to the court that prove the case and offer the witnesses to testify and prove that the tenant was obliged to pay the rent and failed to do so. The Tenant will have an opportunity to present their side. Unlawful detainer trials are frequently very informal and the rules of evidence and procedure often are not followed. The only issues the judge will be concerned with at the trial are: 1. Was the tenant obliged to pay rent or comply with the notice? 2. Did the tenant fail to pay all of the rent or comply with the notice? 3. Did the landlord give the tenant the legally required notice? 4. Was proper notice of the Summons and Complaint given? Normally, if the plaintiff proves all of these elements to the court the plaintiff normally will win and obtain a judgment against the defendant/tenant. The judge will sign a judgment, just like the one in the default cases, ordering the tenant to pay the landlord rent, late fees, costs and any attorneyís fees. This judgment can be collected like any other civil judgment. The tenant may not automatically pay the judgment, in which case the landlord take legal action to collect the judgment such as garnishment, attachment and execution.

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What is a Writ of Restitution?

The judgment obtained in an unlawful detainer case should include an order, requiring the Court to issue what is called a writ of restitution. The writ of restitution is required to legally remove the tenant from the premises. The court does not automatically issue a writ of restitution. The writ of restitution empowers sheriff to perform the eviction by going to the premises, physically remove the tenant and seize the tenantís property if it is still inside the residence. The sheriff charges the landlord a fee for this eviction service. The sheriff will stand by and be sure the tenant does not interfere with the landlord's repossession. The sheriff will not physically move the tenant property. Considering the large number of unlawful detainer actions filed in Washington, the courts actually issue a writ of restitution in a small number of cases. It is quite common for most tenants, even uncooperative tenants, to vacate the premises shortly after being served with the summons and complaint for unlawful detainer. If this happens, the landlord should still proceed with the trial and obtain a judgment for the back rent, fees and costs. For those tenants who choose to stay on the premises after being served with the summons and complaint for unlawful detainer, a significant number of them will vacate the premises after the landlord obtains a writ of restitution and the sheriff explains to them that the sheriff will physically remove them and lock up their property if the do not vacate the premises.

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What Do I Do With the Security Deposit?

Washington law requires that the Landlord provide the tenant with a written accounting of the tenantís security deposit within 14 days of regaining possession of the property, unless the rental agreement provides for a shorter time period. In most situations the rental agreement authorizes the Landlord to deduct delinquent rent, cleaning fees, repairs above normal wear and tear and any other damage which can be reasonably attributed to the tenancy. If there is a balance remaining, it must be returned to the tenant. Landlordís are cautioned to take this law seriously and to fully comply. The security deposit law allows tenants to sue the landlord for failure to comply with the law and many tenants have been successful in recovering the full amount of the security deposit plus punitive damages for the landlordís failure to make an accounting or bad faith retention of the security deposit when it should have been returned to the tenant.

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How Do I Collect the Judgment for Monies?

Some Landlords prefer to obtain a money judgment along with a judgment for possession of the premises. The money judgment may be obtained at trial, or if there is no trial, by default judgment. Please note that the judgment would only include rent, court costs, and attorney fees, if applicable. Normally, it does not include any physical damages to the rental unit or any other miscellaneous charges. Those would have to be obtained by a way of a small claims court action. There is no guarantee the judgment will be paid. If they had any money they would be paying the rent. It is possible to record the judgment so it appears on a title report if the tenant ever buys real property.

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How Long Do Unlawful Detainer Actions Take?

Unless there is a trial, the majority of cases for the eviction of a tenant takes thirty (30) days or less from the time the Notice has expired.

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We have represented clients throughout South King County and more specifically Auburn, Maple Valley, Kent, Des Moines, SeaTac, Federal Way, Renton, Tukwila, and Burien.

To make an appointment, please call 425-277-0977 or click here for an Appointment.

Law Offices of David P. Tracy
108 Wells Ave. S.
Renton, Washington 98057
425-277-0977 Fax 425 277-4749


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