[WSBARP] Getting rid of a house guest

Wed Apr 5 14:49:00 PDT 2017

Thanks to all that replied to my unwanted guest post.

Gourley Law Group
Snohomish Escrow
The Exchange Connection

1002 10th Street / PO Box 1091
Snohomish, WA 98291

360.568.5065
360.568.8092  fax
Craig at glgmail.com<mailto:Craig at glgmail.com>

From: wsbarp-bounces at lists.wsbarppt.com [mailto:wsbarp-bounces at lists.wsbarppt.com] On Behalf Of Rob Wilson-Hoss
Sent: Friday, March 31, 2017 10:50 AM
To: 'WSBA Real Property Listserv' <wsbarp at lists.wsbarppt.com>
Subject: Re: [WSBARP] Getting rid of a house guest

          The premise is that unlawful detainer works for a lot of circumstances, but not all. If there is no lease or rental agreement, or even rent, then sometimes the question is, is it a tenancy at will, or a tenancy at sufferance? If the person entered without permission and won't leave when he or she is told to, this is called a tenancy by sufferance, 59.04.050. That can be an unlawful detainer, and 59.12.030(6) directly addresses that. The tenancy by sufferance statute says that the occupiers must surrender possession on demand, and the unlawful detainer statute allows the shortened UD process if they don't.

          But when a person enters with permission, and no rent is paid, that is different, and is a tenancy at will, and can be terminated, obviously, "at will."  The owner has to give a reasonable time for the tenant to vacate. Najewitz v. Seattle, 21 Wash. 2d 656 (1944).  The application of this doctrine is confusing, as it uses terms connected to leases, such as "tenant" and "tenancy," where no lease or tenancy actually exists. I think it is preferable to consider these matters as mere licenses, and not as some sort of subcategory of tenancy, especially in light of the statutes.

          As far as treatment as a license, the result is practically the same as treatment as a tenant at will. You don't get the UD expedited hearing. You have to give reasonable notice, and you can then file a quiet title/ejectment lawsuit and get a TRO or preliminary injunction pretty quickly. Our Court has required very low bond amounts in such circumstances, where the occupier has no right, and just won't leave. You can also ask for damages for the occupation, and if any circumstances merit it, 4.24.630 attorney fees and triple damages. My experience is that once they are ejected they don't come back and you never hear from them again. Here is the license part of my brief:

          III.  DEFENDANT WAS A LICENSEE, THE LICENSE WAS
   REVOKED, AND IS NOW A MERE TRESPASSER

            Here, Plaintiff allowed Defendant to stay on her property.  There was no rental agreement, no rent to be paid, and nothing else that would meet any definition of tenancy that might apply.  He did agree to do minor repair work, he has done a very limited amount of that, and he has done nothing for months.  He just refuses to leave.
            Defendant was initially a licensee:
             An easement, although an incorporeal right, is an interest in land. Humphrey v. Krutz, 77 Wash. 152, 137 P. 806. A license, on the other hand, authorizes the doing of some act or series of acts on the land of another without passing an estate in the land and justifies the doing of an act or acts which would otherwise be a trespass. Conaway v. Time Oil Co., 34 Wash.2d 884, 210 P.2d 1012.

            A license differs from an easement in that it is revocable and nonassignable, and does not exclude possession, either wholly or partially by the owner of the servient tenement. Tiffany says, in his work on Real Property, Vol. 3 (3d Ed.), p. 414, that if a license is intended to be irrevocable, it is intended as an easement, as it gives an interest of a permanent or quasi permanent nature.

Bakke v. Columbia Valley Lumber Co., 49 Wash. 2d 165, 170 (1956).

            Licenses are close relatives of easements and profits, but there is a fundamental difference between them. Stated theoretically and in Hohfeldian terminology, an easement or profit is a legal "right," an interest in land, whereas a license is a "privilege," not an interest in land.10 The practical distinction is that a license exists at the will of the landowner; it is permissive use, and therefore not wrongful, but it is revocable at will. An easement, on the other hand, is not revocable at will, though it may have a life that is limited to a stated time or to the duration of some purpose it serves. Because a license is not an interest in land, it may be created orally; the Statute of Frauds for deeds does not apply to it. Easements and profits, as we saw previously, must either be created by an instrument that complies with the deed statute or in some way in which the rules of law or equity excuse the absence of a writing. Confusion of licenses with easements and profits comes about because they both allow the same sort of acts, the use of land owned by another person. Ultimately the question is whether the parties intended a license, revocable at the will of the creator, or an easement or profit that is not so revocable. That the recipient paid consideration for the usage tends to indicate an easement, though it is not conclusive evidence.11 Other factors that tend to suggest the parties intended an easement are that it is for a designated time, that the area of use is defined with some specificity, and that the holder is allowed to exercise a great degree of control of the area. Opposites of these factors tend to indicate a license was intended.12

n10 Hohfeld, Some Fundamental Legal Conceptions as Applied in Judicial Reasoning, 23 Yale L. J. 16, 43-44 (1913). In Washington Bakke v. Columbia Valley Lumber Co., 49 Wn.2d 165, 298 P.2d 849 (1956), spells out the basic distinction between easements and licenses. See also Showalter v. City of Cheney, 118 Wn.App. 543, 76 P.3d 782 (Div. 3, 2003), which holds that a business building's canopy whose posts rested on a public sidewalk was a "revocable license."
n11 See Bakke v. Columbia Valley Lumber Co., 49 Wn.2d 165, 298 P.2d 849 (1956). See also Washburn v. Esser, 9 Wn.App. 169, 511 P.2d 1387 (1973).
n12 W. Stoebuck & D. Whitman, The Law of Property § 8.1 (3d ed. 2000). See Showalter v. City of Cheney, 118 Wn.App. 543, 76 P.3d 782 (2003), holding that a tavern's canopy that rested on a city sidewalk was there only by license.

17 Wash. Prac., Real Estate § 2.1 (2d ed.)

            There is no doubt that Defendant was not a tenant, but a licensee, when he initially entered the property of Plaintiff.  Once Plaintiff revoked his permission, then he became a trespasser.  A trespasser is defined by WPI 120.01 as one "who enters or remains upon the premises of another without permission...."  As to remaining unlawfully,
"Unlawful remaining" occurs when (1) a person has lawfully entered a dwelling pursuant to license, invitation or privilege; (2) the invitation, license or privilege is expressly or impliedly limited; (3) the person's conduct violates such limits; and (4) the person's conduct is accompanied by intent to commit a crime in the dwelling. State v. Thomson, 71 Wash.App. 634, 640, 861 P.2d 492 (1993)(citing RCW 9A.52.030(1); RCW 9A.52.020(1); RCW 9A.52.010(3); State v. Collins, 110 Wash.2d 253, 751 P.2d 837 (1988); State v. Rio, 38 Wash.2d 446, 230 P.2d 308, cert. denied, 342 U.S. 867, 72 S.Ct. 106, 96 L.Ed. 652 (1951)); RCW 9A.52.025(1); RCW 9A.04.110(7).

State v. Crist, 80 Wash. App. 511, 514 (1996).

            There is also no doubt that Plaintiff has revoked Defendant's license. She has done so orally many times, and she has done so in a writing, which was signed by Defendant, and by which he agreed to leave by October 14, 2015.
            In the alternative, the Court may wish to consider tenancy at will an alternate theory that would support the same result as the theory that the relationship is a license: Plaintiff is entitled under either doctrine to an Order requiring Defendant to leave within a reasonable time under the circumstances.
Rob

Robert D. Wilson-Hoss
Hoss & Wilson-Hoss, LLP
236 West Birch Street
Shelton, WA 98584
360 426-2999
www.hossandwilson-hoss.com<www.hossandwilsonhoss.com>
rob at hctc.com<mailto:rob at hctc.com>

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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: Friday, March 31, 2017 9:25 AM
To: 'WSBA Real Property Listserv'
Subject: Re: [WSBARP] Getting rid of a house guest

Craig, though I have never used the process, Rob Wilson-Hoss has successfully brought an ejectment action against the person and, at the same time, brought a motion for a preliminary injunction for remove the person.  I believe he then asks the court to consolidate the hearing for the permanent injunction with the ejectment action.  That gets the person out sooner rather than later.

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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 Craig Gourley
Sent: Thursday, March 30, 2017 5:33 PM
To: wsbarp at lists.wsbarppt.com<mailto:wsbarp at lists.wsbarppt.com>
Subject: [WSBARP] Getting rid of a house guest

Listmates,  Client had a friend that was down on his luck. Client allowed friend to stay with him and his wife for a couple days.  No rental agreement no intent for this to be a long term deal.  It's been a couple weeks now and friend refuses to leave.  I know we can demand rent and when not paid move under the Landlord Tenant statute but we are looking for something a bit more immediate.  Any thoughts on unwanted guest and a trespass?  I presume if the guy is sleeping at the property the police will just say it's civil matter and we are back to square one. Anyone have experience with this or another great plan?

Gourley Law Group
Snohomish Escrow
The Exchange Connection

1002 10th Street / PO Box 1091
Snohomish, WA 98291

360.568.5065
360.568.8092  fax
Craig at glgmail.com<mailto:Craig at glgmail.com>

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