[WSBARP] commercial unlawful detainer

[Bryce Dille]

Thanks that as a sidelight there was a settlement agreement previously entered into when the Tenant became delinquent earlier in the year where we accepted a partial payment with the provision that if the tenant didn't abide by the provisions of the settlement agreement, which they didn't,  then they agreed to vacate when we started suit



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Bryce H. Dille | Attorney at Law

P: 253.848.3513| F: 253.845.4941
317 South Meridian
Puyallup, WA 98371
bryced at cdb-law.com<mailto:bryced at cdb-law.com>
www.cdb-law.com<http://www.cdb-law.com/>





This transmission contains confidential attorney-client communications and may not be disclosed to any person but the intended recipient(s).  If this matter is transmitted to you in error, please notify the sender immediately.

Business Entity Creation and Management
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Real Estate and Commercial Transactions & Closings, Including Performing Services as IRS Section 1031 Exchange Facilitator
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From: wsbarp-bounces at lists.wsbarppt.com [mailto:wsbarp-bounces at lists.wsbarppt.com] On Behalf Of Marcus Fry
Sent: Monday, November 06, 2017 3:20 PM
To: WSBA Real Property Listserv
Subject: Re: [WSBARP] commercial unlawful detainer

Bryce:

Here is an excerpt on relevant case law and I don't view it as limited to residential because RCW 59.12 applies to both.

PARTIAL PAYMENT- Acceptance of a partial payment will not destroy the landlord's right to proceed with an eviction action so long as there is still rent due and owing as specified in the Three Day Notice to Pay Rent or Vacate.  Housing Resource Group v. Price, 92 Wn.App. 394, 401-401, 958 P.2d 327 (1998), review denied, 137 Wn.2d 1010, 978 P.2d 1099 (1999)].

Other Defaults-  Generally, if a landlord accepts rent with full knowledge that the tenant has breached the lease, the landlord waives the right to declare a forfeiture of the lease because of that breach. Wilson v. Daniels, 31 Wn.2d 633, 639, 198 P.2d 496 (1948)<https://advance.lexis.com/document/?pdmfid=1000516&crid=781b4d83-e441-4807-9149-027df7efa00f&pddocfullpath=%2Fshared%2Fdocument%2Fcases%2Furn%3AcontentItem%3A4H3J-4DP0-0039-42K4-00000-00&pddocid=urn%3AcontentItem%3A4H3J-4DP0-0039-42K4-00000-00&pdcontentcomponentid=10841&pdteaserkey=sr2&ecomp=f8-g&earg=sr2&prid=4ba7f00e-6816-4f11-9c8b-b27b8065c329>. But there is no waiver of the right to forfeit if the tenant's breach is a continuing one. Wilson, 31 Wn.2d at 640<https://advance.lexis.com/document/?pdmfid=1000516&crid=781b4d83-e441-4807-9149-027df7efa00f&pddocfullpath=%2Fshared%2Fdocument%2Fcases%2Furn%3AcontentItem%3A4H3J-4DP0-0039-42K4-00000-00&pddocid=urn%3AcontentItem%3A4H3J-4DP0-0039-42K4-00000-00&pdcontentcomponentid=10841&pdteaserkey=sr2&ecomp=f8-g&earg=sr2&prid=4ba7f00e-6816-4f11-9c8b-b27b8065c329>. Thus, the waiver of a forfeiture by acceptance of rent applies to past breaches, which are single and complete when the rent is accepted, and having been once waived the landlord's rights are lost. But the general rule is that a waiver of a right of forfeiture for breach of a covenant in a lease does not operate as a waiver with respect to a continuance  of the breach, where the breach is a continuing one, and it does not operate as a waiver of the right of forfeiture for a subsequent breach of the covenant."

(Italics ours.) Wilson, 31 Wn.2d at 640<https://advance.lexis.com/document/?pdmfid=1000516&crid=781b4d83-e441-4807-9149-027df7efa00f&pddocfullpath=%2Fshared%2Fdocument%2Fcases%2Furn%3AcontentItem%3A4H3J-4DP0-0039-42K4-00000-00&pddocid=urn%3AcontentItem%3A4H3J-4DP0-0039-42K4-00000-00&pdcontentcomponentid=10841&pdteaserkey=sr2&ecomp=f8-g&earg=sr2&prid=4ba7f00e-6816-4f11-9c8b-b27b8065c329> (quoting 32 Am. Jur. 754, Landlord and Tenant § 890.  See also Hwang v. McMahill, 103 Wn. App. 945; 15 P.3d 172.

Note, based upon Paul's response I think there needs to be clarification of the facts.  I read your question to say the tenant owes $35k rather than $3500.  If the tenant owes $35k and tendered only $3500, based upon the partial payment law for rent only default, I believe your fine in accepting it.  However, in abundance of caution after consulting my client and receiving the okay, I either: (1) tender the funds into the court registry; or (2) send letter to tenant advising tenant that the tendered amount is insufficient to cure the monetary default and that LL will hold the funds in trust pending outcome of the UD action and if tenant wishes that the same be returned prior to a court decision, they simply need to make a written request for the return of the same.  Again, based upon partial payment law, you can simply keep the partial payment and continue forward without these additional steps, but in my view there is always risk that a superior court judge may side with the tenant because something has been paid and accepted, placing you in the position of appealing the wrong decision or have to reinstitute your action again after notice with additional delay.


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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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: Monday, November 06, 2017 3:00 PM
To: 'WSBA Real Property Listserv'
Subject: Re: [WSBARP] commercial unlawful detainer

Well, without finding any research of substance when this has come up in the past, I have taken the position that if T cures the default prior to service (even if filed already), then the default is cured.  Once again though, without legal underpinnings.  And, I imagine there would be some judicial hesitancy to evict a T after payment in full prior to an effective service of the summons and complaint.

You might be able to refile (with a new 3-day notice) if you want to try to go after the attorney fees that LL expended in preparing and filing the lawsuit but that will depend on the form of the attorney fees clause.

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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 Bryce Dille
Sent: Monday, November 6, 2017 2:06 PM
To: WSBA Real Property Listserv (wsbarp at lists.wsbarppt.com<mailto:wsbarp at lists.wsbarppt.com>) <wsbarp at lists.wsbarppt.com<mailto:wsbarp at lists.wsbarppt.com>>
Subject: [WSBARP] commercial unlawful detainer

In a commercial unlawful detainer where back rent is in excess of $35000 if suit is filed and is in the process of being served what is affect if tenant direct wires in $3500 to LL account does LL have to return the funds in order to continue the action.



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Bryce H. Dille | Attorney at Law

P: 253.848.3513| F: 253.845.4941
317 South Meridian
Puyallup, WA 98371
bryced at cdb-law.com<mailto:bryced at cdb-law.com>
www.cdb-law.com<http://www.cdb-law.com/>





This transmission contains confidential attorney-client communications and may not be disclosed to any person but the intended recipient(s).  If this matter is transmitted to you in error, please notify the sender immediately.

Business Entity Creation and Management
Business, Government and Tax Law
Real Estate and Land Use, Residential, Commercial and Condominium Development
Real Estate and Commercial Transactions & Closings, Including Performing Services as IRS Section 1031 Exchange Facilitator
Estate Planning, including Wills and Trusts, and Probate Administration
Representation Homeowners/Condominium Association Real Estate Developments
Real Property Foreclosures and Forfeitures






















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