[WSBAPT] Probate: Removing family member from deceased's home - Unlawful Detainer or Ejectment?

Wed Jan 27 17:06:03 PST 2016

David, I took the same approach as Doug in a probate action in 2013, based
on tenancy by sufferance, and when I went in for the Order to Show Cause,
Judge Andrus was sitting in ex parte and did not hesitate to enter an Order
to Show Cause for a Writ of Restitution.  She was still on the bench when I
went in for the show cause hearing, the individual did not appear, and she
issued a writ of restitution.  The family member finally vacated after the
sheriff visited and said, “you have 2 hours.”  

Sandi Gay

SANDRA BATES GAY, P.S.

Attorney at Law

23515 NE Novelty Hill Rd.

Suite B211-397

Redmond, WA  98053-1996

Phone:             (425) 637-3040

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From: wsbapt-bounces at lists.wsbarppt.com
[mailto:wsbapt-bounces at lists.wsbarppt.com] On Behalf Of Doug Schafer
Sent: Wednesday, January 27, 2016 4:33 PM
To: WSBA Probate & Trust Listserv <wsbapt at lists.wsbarppt.com>
Subject: Re: [WSBAPT] Probate: Removing family member from deceased's home -
Unlawful Detainer or Ejectment?

About 10 years ago, to remove a decedent's son from her home, I asserted
that the son was a "tenant at sufferance" and I successfully employed the
unlawful detainer process.  Below is the body of my complaint:

2. Defendant resided in the *** Street Residence apparently with permission
of [decedent] before her death on ***, 2005, and he has continued since that
time to reside therein without permission of the personal representative of
her estate.
    3.  Defendant is a tenant by sufferance under RCW 59.04.050, which
provides:
    Whenever any person obtains possession of premises without the consent
of the owner or other person having the right to give said possession, he
shall be deemed a tenant by sufferance merely, and shall be liable to pay
reasonable rent for the actual time he occupied the premises, and shall
forthwith on demand surrender his said possession to the owner or person who
had the right of possession before said entry, and all his right to
possession of said premises shall terminate immediately upon said demand.
    4. RCW 59.12.030 provides:
    A tenant of real property for a term less than life is guilty of
unlawful detainer either:
    . . . .
    (6) [When] A person who, without the permission of the owner and without
having color of title thereto, enters upon land of another and who fails or
refuses to remove therefrom after three days' notice, in writing and served
upon him or her in the manner provided in RCW 59.12.040. Such person may
also be subject to the criminal provisions of chapter 9A.52 RCW; 
    5. On ***, 2006, Defendant was personally served by *** with a written
3-day notice to vacate and surrender the premises. A copy of that notice is
attached as Exhibit A. 
    6. Defendant has not vacated and surrendered the premises, and more than
three days have elapsed since notice to do so was served upon him.
    7. RCW 59.04.050 and Washington case law provide that a tenant by
sufferance possessing property is liable to the party entitled to possession
for the reasonable rental value for the time the tenant occupied the
property. Sarvis v. Land Resources, Inc., 62 Wn. App. 888, 815 P.2d 840
(1991), rev. denied, 118 Wn.2d 1020 (1992); Howard v. Edgren, 62 Wn.2d 884,
385 P.2d 41 (1963); see also Estate of Jones, 152 Wn.2d 1, 14, 93 P.3d 147
(2004) (Heir occupying decedent’s residence during probate owes the estate
rent).

Doug Schafer, in Tacoma.

On 1/27/2016 3:26 PM, Rob Wilson-Hoss wrote:

I have attached a brief that worked and that I have provided to others on
this list serve the past couple of years. Some of the same issues. 

Rob

Robert D. Wilson-Hoss 
Hoss & Wilson-Hoss, LLP 
236 West Birch Street 
Shelton, WA 98584 
360 426-2999

www.hossandwilson-hoss.com <http://www.hossandwilson-hoss.com> 
rob at hctc.com <mailto:rob at hctc.com> 

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From: wsbapt-bounces at lists.wsbarppt.com
<mailto:wsbapt-bounces at lists.wsbarppt.com>
[mailto:wsbapt-bounces at lists.wsbarppt.com] On Behalf Of James L. Sorenson
Sent: Wednesday, January 27, 2016 3:00 PM
To: WSBA Probate & Trust Listserv
Cc: wsbapt at lists.wsbarppt.com <mailto:wsbapt at lists.wsbarppt.com> 
Subject: Re: [WSBAPT] Probate: Removing family member from deceased's home -
Unlawful Detainer or Ejectment?

I had a similar problem with a brother who would not leave. The PR tried an
unlawful detainer action and the commissioner said that unless a lease was
offered  or the brother was willing to pay rent that an unlawful detainer
would not work.  The PR used an ejectment action with B. Jacob Bozeman (425
248-2164) and was successful.  He could solve this problem for you.  He has
been successful for many of my clients.

James L. Sorenson

Attorney at Law

929 N. 130th Suite14

Seattle, Washington  98133

206 365-0346

On Jan 27, 2016, at 12:51 PM, Lenard <lwlaw at my180.net
<mailto:lwlaw at my180.net> > wrote:

How did daughter gain possession?  If it was by permission of the owner then
she is not under paragraph 6.  See Turner v. White, 20 Wn.App. 290, 291-92,
579 P.2d 410 (Div. 3 1978) 

According to Division 3 an unlawful detainer is not available against a
tenant-at-will.  

If she is a tenant-at-will, that leaves ejectment and TEDRA.  Under
11.48.020 the PR has a right to possession of all estate property, but this
statute is not tied into the UD framework.  Why not ask the court to use its
plenary power under TEDRA to order a writ of restitution?

Lenard L. Wittlake 

From: wsbapt-bounces at lists.wsbarppt.com
<mailto:wsbapt-bounces at lists.wsbarppt.com>
[mailto:wsbapt-bounces at lists.wsbarppt.com] On Behalf Of Thomas Gates
Sent: Wednesday, January 27, 2016 11:56 AM
To: WSBA Probate & Trust Listserv
Subject: Re: [WSBAPT] Probate: Removing family member from deceased's home -
Unlawful Detainer or Ejectment?

See RCW 59.12.030(6).  Only a three day Notice is required before starting
Unlawful Detainer action.

Tom

On Wed, Jan 27, 2016 at 11:40 AM, David Faber <david at faberfeinson.com
<mailto:david at faberfeinson.com> > wrote:

Good morning:

Client is PR. Deceased's daughter is currently living in home of deceased
and needs to be removed. My first thought is a 20-day notice to terminate
followed by unlawful detainer if she fails, but I recall a dispute about
whether an unlawful detainer is appropriate for this sort of situation.
Would an ejectment action be more proper? The house is being sold and the
purchaser doesn't wants the daughter out as part of the transfer.

Best,

David J. Faber

Faber Feinson PLLC

210 Polk Street, Suite 1

Port Townsend, WA 98368
(360) 379-4110

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