[WSBARP] Getting rid of a house guest

[Rob Wilson-Hoss]

          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
 <mailto:rob at hctc.com> rob at hctc.com

 

This message is intended solely for the use of the addressee and may contain
information that is privileged, confidential, and exempt from disclosure
under applicable law.  If you are not the addressee, you are hereby notified
that any use, distribution, or copying of this message is strictly
prohibited.  If you received this message in error, please notify us by
reply e-mail or by telephone (call us collect at the number listed above)
and immediately delete this message and any and all of its attachments.
Thank you.

 

This office does debt collection and this e-mail may be an attempt to
collect a debt, Any information obtained will be used for that purpose.  To
the extent the Federal Fair Debt Collection Practices Act (15 U.S.C. § 1692)
applies this firm is acting as a debt collector for the
condominium/homeowners' association named above to collect a debt owed to
it. Any information obtained will be used for collection purposes. You have
the right to seek advice of legal counsel.

 

From: 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.

 



 

From: 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
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

 

-------------- next part --------------
An HTML attachment was scrubbed...
URL: <http://mailman.fsr.com/pipermail/wsbarp/attachments/20170331/cb51fb2f/attachment.html>
-------------- next part --------------
A non-text attachment was scrubbed...
Name: image002.jpg
Type: image/jpeg
Size: 7458 bytes
Desc: not available
URL: <http://mailman.fsr.com/pipermail/wsbarp/attachments/20170331/cb51fb2f/image002.jpg>