[WSBAPT] Terminating Tenancy to sell property
Eric Nelsen
Eric at sayrelawoffices.com
Wed Sep 16 16:31:12 PDT 2020
I think I was part of that previous discussion, a debate on whether or not the UD 20-day and "intent to sell" 60-day notice periods could run concurrently, or had to run consecutively. I took the position that they can run concurrently so long as all requirements under the UD statute and under the Governor's Proclamation were met. I think they could be done as separate notices OR they could be done in a single combined notice. Example:
1. Send a "Notice of Intent to Sell" on 9/16. That expires 60 days later, 11/15, and satisfies the Gov. Proc. Then, some time at least 20 days before 11/30, send the Notice of Termination effective 11/30. That satisfies the UD requirement of at least 20 day's notice, and it expires at the end of a calendar month. The Gov. Proc. is satisfied because you did, in fact, give more than 60 days' notice of intent to sell.
2. OR, send a combined Notice of Intent to Sell and Notice of Termination on 9/16, specifying that the termination is effective on 11/30. That satisfies the 60-day requirement, and the 20-day requirement, and the end-of-a-calendar-month requirement, all at the same time.
Others thought that the notices should be sent separately and consecutively, to play it even safer. Effectively the requirement then becomes over 80 days of notice.
But notice that, under the concurrent scenario, I've sent out my first notice on 9/16, but the tenancy still doesn't actually terminate until 11/30, which is 74 days. Not that much different from 80 days. As a practical matter, the choice between concurrent and consecutive often matters little because the 60-day calculation, combined with the end-of-month requirement under the UD notice, most often results in a period significantly longer than 60 days. The only way to get the total time down to 60 days is to serve a combined notice exactly on 10/1, so that 60 days terminates on 11/30. If the notice is served on 10/2, then the earliest effective termination bumps a month to 12/31, because the 60 days runs on 12/1 and the UD therefore notice has to end on 12/31. Which is, effectively, 90 days of notice before termination.
Date of service of notices Effective termination date
9/1 10/31, 60 days after notice
9/2 - 10/1 11/30, 60-89 days after notice
10/2 - 11/1 12/31, 60-90 days after notice
Kaitlyn also reminded us all that a "20 day" notice can be sent any time more than 20 days before the end of a month. So I could send one now, to terminate a tenancy on December 31, 2020, if I so chose. It's just that landlords don't often do that because by the time they're ready to terminate, they want it done asap. This means it makes even less sense to require the "20 day" notice to issue after the 60-day period expires. The point of notice is to give the tenant time to prepare to move out. If the tenant has at least 60 days' notice under the Gov. Proc. and at least 20 days under the UD statute, the purpose of notice is fulfilled. Stacking them concurrently does not fulfill an actual expressed purpose; no one has said the tenant needs to receive 80-90 days of notice.
The Gov. Proc. is attached. The operative language: "This prohibition [on service of notice to terminate] applies unless the landlord, property owner, or property manager (a) attaches an affidavit attesting that the action is necessary to respond to a significant and immediate risk to the health, safety, or property of others created by the resident; or (b) provides at least 60 days' written notice of intent to (i) personally occupy the premises as a primary residence, or (ii) sell the property."
It doesn't say the 60 day notice has to be provided first and that the entire 60 days has to expire before notice to terminate can be served; it just says that the prohibition does not apply if the notice of intent to sell is provided. So if you give the tenant at least 60 days notice of intent to sell, I think it doesn't matter when the notice of termination is issued, so long as the actual termination date is after the 60 days has expired.
Recognizing that if Paul is opposing counsel when this gets to the judge, he's going to make the argument and if the judge agrees, my client has to start over.
Sincerely,
Eric
Eric C. Nelsen
Sayre Law Offices, PLLC
1417 31st Ave South
Seattle WA 98144-3909
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eric at sayrelawoffices.com<mailto:eric at sayrelawoffices.com>
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From: wsbapt-bounces at lists.wsbarppt.com <wsbapt-bounces at lists.wsbarppt.com> On Behalf Of Paul Neumiller
Sent: Wednesday, September 16, 2020 3:22 PM
To: WSBA Probate & Trust Listserv <wsbapt at lists.wsbarppt.com>
Subject: Re: [WSBAPT] Terminating Tenancy to sell property
My vague recollection of the earlier posts to this listserv is that the 60 notice was in addition to the 20 day notice. Nothing said the 60 day notice replaced the 20 day notice. So the conservative advice was to give the 60 day notice to fulfill that pre-requisite and then give the 20 day notice (to terminate at the end of a month). It is a gamble as always. You can take the more aggressive position but you had better be prepare to explain to the client the the client is now funding the test case in Washington. However, that said, I do not know how this is playing out in the courts, if it is playing out.
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From: wsbapt-bounces at lists.wsbarppt.com<mailto:wsbapt-bounces at lists.wsbarppt.com> <wsbapt-bounces at lists.wsbarppt.com<mailto:wsbapt-bounces at lists.wsbarppt.com>> On Behalf Of Eric Lanza
Sent: Wednesday, September 16, 2020 3:02 PM
To: WSBA Probate & Trust Listserv <wsbapt at lists.wsbarppt.com<mailto:wsbapt at lists.wsbarppt.com>>
Subject: Re: [WSBAPT] Terminating Tenancy to sell property
On a related note:
I do not see anything in the proclamation states that the 60 day notice period needs to expire at the "end of such month or period" like a 20 day notice issued under 59.12.030(2).
Are judges requiring that the "termination date" in a 60 day notice coincide with the expiration of the periodic rental period? Or can the 60 day notice terminate the tenancy at the end of 60 days, regardless of what day of the month the expiration date falls.
You would think if there was such a requirement, it would be spelled out in the proclamation. The proclamation could have easily borrowed that language from the 20 day notice statute, but it doesn't.
Eric J. Lanza, J.D.
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From: wsbapt-bounces at lists.wsbarppt.com<mailto:wsbapt-bounces at lists.wsbarppt.com> <wsbapt-bounces at lists.wsbarppt.com<mailto:wsbapt-bounces at lists.wsbarppt.com>> On Behalf Of Kaitlyn Jackson
Sent: Wednesday, September 16, 2020 2:45 PM
To: WSBA Probate & Trust Listserv <wsbapt at lists.wsbarppt.com<mailto:wsbapt at lists.wsbarppt.com>>
Subject: Re: [WSBAPT] Terminating Tenancy to sell property
Additionally, if the "20 day notice" is based on the statute 59.18.030, the statute allows you to give "more" than 20 days.
RCW 59.12.030<https://eur06.safelinks.protection.outlook.com/?url=http%3A%2F%2Fapp.leg.wa.gov%2FRCW%2Fdefault.aspx%3Fcite%3D59.12.030&data=02%7C01%7C%7Cdd3a509ea73740c6284308d85a8d4662%7C84df9e7fe9f640afb435aaaaaaaaaaaa%7C1%7C0%7C637358910111924711&sdata=OzQZ8cJaR%2FUADZkPD0DTY0dUs2zK6z5JdzimQViuUrY%3D&reserved=0>
Unlawful detainer defined.
A tenant of real property for a term less than life is liable for unlawful detainer either:...
(1) When he or she holds over or continues in possession, in person or by subtenant, of the property or any part thereof after the expiration of the term for which it is let to him or her. When real property is leased for a specified term or period by express or implied contract, whether written or oral, the tenancy shall be terminated without notice at the expiration of the specified term or period;
(2) When he or she, having leased property for an indefinite time with monthly or other periodic rent reserved, continues in possession thereof, in person or by subtenant, after the end of any such month or period, when the landlord, more than twenty days prior to the end of such month or period, has served notice (in manner in RCW 59.12.040<https://eur06.safelinks.protection.outlook.com/?url=http%3A%2F%2Fapp.leg.wa.gov%2FRCW%2Fdefault.aspx%3Fcite%3D59.12.040&data=02%7C01%7C%7Cdd3a509ea73740c6284308d85a8d4662%7C84df9e7fe9f640afb435aaaaaaaaaaaa%7C1%7C0%7C637358910111934705&sdata=IJJ2Q5kwRvsK05S3T9QVr5CVgeiWqVDoGZoIe4rgDnU%3D&reserved=0> provided) requiring him or her to quit the premises at the expiration of such month or period;...
So the Notice to Terminate - 60 days, so long as it cites the legal basis under 59.18.030 is also this "20 days notice." The 20 days is a minimum amount of days you can serve such a notice, not a requirement.
However, if the Notice to Terminate - 60 days, only cites the proclamation and does not cite 59.18.030 as well, then that might be the issue.
Kaitlyn
On Wed, Sep 16, 2020 at 2:39 PM Kaitlyn Jackson <kaitlyn at dimensionlaw.com<mailto:kaitlyn at dimensionlaw.com>> wrote:
I would challenge that and get a revision. It's hogwash (legal term of art).
Kaitlyn
On Wed, Sep 16, 2020 at 2:34 PM Marcus Fry <mfry at lyon-law.com<mailto:mfry at lyon-law.com>> wrote:
Agreed on all points. However, I heard this from an assistant AG who indicated judges had ruled that separate notices need to be given.
Marcus J. Fry
Lyon, Weigand & Gustafson, P.S.
P.O. Box 1689
Yakima, Washington 98907
Telephone: (509) 248-7220
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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<mailto:wsbapt-bounces at lists.wsbarppt.com>] On Behalf Of Kaitlyn Jackson
Sent: Wednesday, September 16, 2020 2:22 PM
To: WSBA Probate & Trust Listserv
Subject: Re: [WSBAPT] Terminating Tenancy to sell property
I have not had this problem and this argument/conclusion not only doesn't make sense, but instructs the landlord to violate the Proclamation.
A 20 Day Notice is called "Notice to Terminate" and a 60 day Notice is called "Notice to Terminate." Either notice terminates the tenancy. The only difference is the amount of time given to the tenant to vacate before they are considered unlawfully detaining the property.
What's more strange about this argument is that, under the Proclamation, if you give a tenant a 20 day notice to terminate, you are violating the ordinance. So, to require that notice be served is an instruction to violate the Proclamation.
Even more strange is that giving multiple notices like this is just likely to confuse the tenant about when they are actually required to vacate.
If a Commissioner has ruled this way I would file a motion for a revision.
Kaitlyn
On Wed, Sep 16, 2020 at 2:09 PM Marcus Fry <mfry at lyon-law.com<mailto:mfry at lyon-law.com>> wrote:
All:
I am hearing word that on month to month tenancies, if you give a 60 day notice of intent to sell to terminate tenancy (to comply with Governor Inslee's proclamation), that you still have to give the 20-day notice terminating tenancy, even though the 20-day period is not used because the 60-day period is longer. Anyone encountering this with the courts?
Marcus J. Fry
Lyon, Weigand & Gustafson, P.S.
P.O. Box 1689
Yakima, Washington 98907
Telephone: (509) 248-7220
Facsimile: (509) 575-1883
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All attorneys and staff are working remotely regular business hours and are available via email and by phone. Videoconferencing also is available. We will continue to advise and support our clients throughout this health emergency.
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Thank you,
Kaitlyn R. Jackson | Attorney| DIMENSION LAW GROUP PLLC
130 Andover Park East, Suite 300 | Tukwila, WA 98188
t: 206.973.3500 | f: 206.577.5090| e: kaitlyn at dimensionlaw.com|<mailto:kaitlyn at dimensionlaw.com|> www.dimensionlaw.com<https://eur06.safelinks.protection.outlook.com/?url=http%3A%2F%2Fwww.dimensionlaw.com%2F&data=02%7C01%7C%7Cdd3a509ea73740c6284308d85a8d4662%7C84df9e7fe9f640afb435aaaaaaaaaaaa%7C1%7C0%7C637358910111954695&sdata=yOTL98ArF4RQ6Ix3fCjwnjao2vbTKh3o%2FBQY1bQBg14%3D&reserved=0>
Covid-19 Update - Dimension Law Group remains available to serve our clients and the public during this time, subject to the orders and recommendations of government authority.
All attorneys and staff are working remotely regular business hours and are available via email and by phone. Videoconferencing also is available. We will continue to advise and support our clients throughout this health emergency.
PRIVILEGED AND CONFIDENTIAL: This e-mail (including any attachments) is intended only for the use of the individual or entity named above and may contain privileged or confidential information. If you are not the intended recipient, or the employee or agent responsible to deliver it to the intended recipient, you are notified that any review, dissemination, distribution or copying of this e-mail is prohibited. Attempts to intercept this message are in violation of 18 USC 2511(1) of the Electronic Communications Privacy Act, which subjects the interceptor to fines, imprisonment and/or civil damages. If you have received this e-mail in error, please immediately notify us by e-mail, facsimile, or telephone; return the e-mail to us at the e-mail address below; and destroy all paper and electronic copies. Any settlement offer contained herein is made pursuant to Washington ER 408, and without admitting fault or liability on the part of this firm's client(s) or its agents. IRS CIRCULAR 230 DISCLAIMER: To ensure compliance with requirements imposed by the IRS, I inform you that any U.S. tax advice contained in this communication (including any attachments) is not intended or written to be used, and cannot be used, for the purpose of (i) avoiding penalties under the Internal Revenue Code; or (ii) promoting, marketing or recommending to another party any transaction or tax-related matter addressed herein.
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