[WSBARP] Unlawful Detainer, Mail Notice and then Post

Thu Apr 2 18:14:46 PDT 2015

Gentlemen,

Paul, in answer to your questions, I have attached what I believe to be the authority for my statement. Perhaps I am overly cautious in my interpretation of the statutes and rules, but I am always on the alert for a defective service since I do mostly defense work.

When I represent the landlord, I say, ”This 3 day notice to pay rent or vacate was placed in the United States Postal Service at Spokane Washington on the ______ day of ___________  20___ at the hour of _______, addressed to _________________ at _____________________ by certified mail return receipt.

That way no arguments.

Josh, The landlord lawyers are always telling me that “diligence” is not required, but I have attached authority which I think is to the contrary. 

Thanks for your questions and discussion.

Howard Herman

Herman Herman & Jolley PS

509.220.58910

From: wsbarp-bounces at lists.wsbarppt.com [mailto:wsbarp-bounces at lists.wsbarppt.com] On Behalf Of Marcus Fry
Sent: Thursday, April 2, 2015 10:07 AM
To: 'WSBA Real Property Listserv'
Subject: Re: [WSBARP] Unlawful Detainer, Mail Notice and then Post

Josh:

I have of a bit of a different take on the situation.  You gave the 20-day notice.  Thus the tenant was to vacate by the end of February (assumption based upon the below facts).  Tenant and Landlord agreed that the tenancy would continue to 3/27.  In my opinion, you can commence an eviction now as the tenancy terminated on 11:59pm on 3/27.  You don’t need another notice.  You didn’t renew the month to month tenancy, you changed it to a definite term, i.e., 27 days.  Obviously you may have a tenant who says this oral agreement was different.  Was rent for March prorated for the 27 days or did the tenant pay the rent that was being charged under the month to month agreement?  That could be the sticking point for a judge in determining who to believe if you get into a he/she said as to whether the 27th was agreed to.  However, time is of the essence.  I would file the suit and also issue a 20-day notice by April 9th and then amend complaint to include this as an alternative basis.

With regard to Mr. Herman’s response.  I disagree that you have to have a diligent search for the tenant prior to posting and mailing.  The statute makes no reference to that.  Statute is below.

RCW 59.12.040

Service of notice — Proof of service.

Any notice provided for in this chapter shall be served either (1) by delivering a copy personally to the person entitled thereto; or (2) if he or she be absent from the premises unlawfully held, by leaving there a copy, with some person of suitable age and discretion, and sending a copy through the mail addressed to the person entitled thereto at his or her place of residence; or (3) if the person to be notified be a tenant, or an unlawful holder of premises, and his or her place of residence is not known, or if a person of suitable age and discretion there cannot be found then by affixing a copy of the notice in a conspicuous place on the premises unlawfully held, and also delivering a copy to a person there residing, if such a person can be found, and also sending a copy through the mail addressed to the tenant, or unlawful occupant, at the place where the premises unlawfully held are situated. Service upon a subtenant may be made in the same manner: PROVIDED, That in cases where the tenant or unlawful occupant, shall be conducting a hotel, inn, lodging house, boarding house, or shall be renting rooms while still retaining control of the premises as a whole, that the guests, lodgers, boarders, or persons renting such rooms shall not be considered as subtenants within the meaning of this chapter, but all such persons may be served by affixing a copy of the notice to be served in two conspicuous places upon the premises unlawfully held; and such persons shall not be necessary parties defendant in an action to recover possession of said premises. Service of any notice provided for in this chapter may be had upon a corporation by delivering a copy thereof to any officer, agent, or person having charge of the business of such corporation, at the premises unlawfully held, and in case no such officer, agent, or person can be found upon such premises, then service may be had by affixing a copy of such notice in a conspicuous place upon said premises and by sending a copy through the mail addressed to such corporation at the place where said premises are situated. Proof of any service under this section may be made by the affidavit of the person making the same in like manner and with like effect as the proof of service of summons in civil actions. When a copy of notice is sent through the mail, as provided in this section, service shall be deemed complete when such copy is deposited in the United States mail in the county in which the property is situated properly addressed with postage prepaid: PROVIDED, HOWEVER, That when service is made by mail one additional day shall be allowed before the commencement of an action based upon such notice. RCW  <http://apps.leg.wa.gov/rcw/default.aspx?cite=59.18.375> 59.18.375 may also apply to notice given under this chapter.

Marcus J. Fry

Lyon, Weigand & Gustafson, P.S. 
Adoption Attorney*

P.O. Box 1689 
Yakima, Washington  98907 
Telephone:  (509) 248-7220 
Facsimile:  (509) 575-1883 

NOTICES:

 *Adoption Attorney reflects election as a Fellow of the American Academy of Adoption Attorneys, an invitation based organization of 300+ attorneys nationwide, under its criteria of experience, ethics and peer recommendation. Washington's Supreme Court has not yet developed or recognized a credentialing process for specialties, and certification/fellowship is not required to practice law in this state.

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From: wsbarp-bounces at lists.wsbarppt.com <mailto:wsbarp-bounces at lists.wsbarppt.com>  [mailto:wsbarp-bounces at lists.wsbarppt.com] On Behalf Of Paul Neumiller
Sent: Thursday, April 02, 2015 9:39 AM
To: 'WSBA Real Property Listserv'
Subject: Re: [WSBARP] Unlawful Detainer, Mail Notice and then Post

Mr. Herman, please provide the citation of the requirement that “The proof of mailing and posting by declaration must state the time, date and place of mailing and to whom it is addressed.”  I have to admit that my Declaration of Mailings for years have only provided the date mailed and the addressee.  Where is the requirement that the Declaration of Mailing state the time the Notice was actually placed in a mailbox and the location the Notice was placed in the mail?  If you specify the actual location the Notice was mailed, how do you do that (that is, is “Seattle” enough?  “mailbox on the corner of 5th and Vine?  “Given to the mailman at law offices”?)

From: wsbarp-bounces at lists.wsbarppt.com <mailto:wsbarp-bounces at lists.wsbarppt.com>  [mailto:wsbarp-bounces at lists.wsbarppt.com] On Behalf Of hhherman2
Sent: Wednesday, April 1, 2015 7:19 PM
To: 'WSBA Real Property Listserv'
Subject: Re: [WSBARP] Unlawful Detainer, Mail Notice and then Post

The verbal agreement set up a whole new landlord/tenant relationship and waives the prior notices. The 20 day notice to vacate has to be served 20 days prior to the beginning of the next rent period. Personal service is preferred, but if that is not possible after diligent effort then the mailing of the notice and the posting or the notice is the alternative. If there is more than one tenant, there has to be a separate notice for each tenant. The proof of mailing and posting by declaration must state the time, date and place of mailing and to whom it is addressed. If the rent period is from the first of the month to the end of the month, remember April is a short month. In counting the days, you don’t count the first day but you count the last. So back up from April 30 to count the 20 days. There is nothing magic about these notices. If the tenant ignores the notice, you will have to commence an unlawful detainer action to get them out. If there is unpaid rent, you may be able to cut the time in half by using a 3 day notice to pay rent or vacate. But if you do that and they pay the rent, then you need to get the 20 day notice posted and mailed promptly.

Howard Herman

Herman Herman & Jolley PS

509.220.5810 The 

From: wsbarp-bounces at lists.wsbarppt.com <mailto:wsbarp-bounces at lists.wsbarppt.com>  [mailto:wsbarp-bounces at lists.wsbarppt.com] On Behalf Of Josh Grant
Sent: Wednesday, April 1, 2015 3:28 PM
To: wsbar
Subject: [WSBARP] Unlawful Detainer, Mail Notice and then Post

I have a client, Landlord, who did a pretty good job without legal help.  Tenant is a month to month residential holdover, and client has property sold.  Tenant keeps delaying departure.

The notice to vacate gave 32 days to be out.  They mailed it on 1/25 to tenant and THEN posted it conspicously on 1/30.  Then they mutually agreed (apparently verbally) to let them stay til 3/27.  They still are there.

In looking at 59.12.040 it says you can post the notice “and also sending a copy through the mail addressed to the tenant”.  It doesn’t say that the mailing has to be after the posting.

I hope we don’t have to start all over with another 20 day notice.  Client may lose a sale.

Is there authority that if you verbally let a tenant after the date on your notice to vacate, that you have to re-do the notice?

Joshua F. Grant, PS
Attorney at Law
P. O. Box 619
Wilbur, WA 99185
tel 509 647 5578
fax 509 647 2734

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