[WSBARP] unlawful detainer judgment

Tue Jun 5 19:42:40 PDT 2018

Kary, thank you so much!

This is a beautiful case and right here in my own back yard, Spokane WA,
Division III. My practice is primarily limited to pro bono defense of
unlawful detainer cases and this case is a primer for anyone representing
either the landlord or the tenant. I am familiar with many of the cases
cited in the opinion, and to have so many  issues so clearly and decisively
decided in one case is remarkable. At least half of the cases I have handled
in the last 20 years could have been won with this case as authority.
Landlords, beware of the volunteer that comes to court with one case.

Howard Herman

Herman Herman and Jolley PS

509 220 5810

From: wsbarp-bounces at lists.wsbarppt.com
[mailto:wsbarp-bounces at lists.wsbarppt.com] On Behalf Of Kary Krismer
Sent: Tuesday, June 5, 2018 8:52 AM
To: wsbarp at lists.wsbarppt.com
Subject: Re: [WSBARP] unlawful detainer judgment

I haven't been following this thread, but this new case seems to be
on-topic.

http://www.courts.wa.gov/opinions/pdf/351378_pub.pdf

Kary L. Krismer
John L. Scott/KMS Renton 
206 723-2148

On 6/4/2018 4:49 PM, HOWARD HERMAN wrote:

Craig, here is the case law and statute.

In Carlstrom, Division One of this court observed, "Show cause hearings are
summary proceedings to determine the issue of possession pending a lawsuit."
Id. at 788,
<http://lawriter.net/getCitState.aspx?series=P.2d&citationno=990+P.2d+986&sc
d=WA> 990 P.2d 986 (emphasis added) (citing Meadow Park, 54 Wash.App. at
375,
<http://lawriter.net/getCitState.aspx?series=P.2d&citationno=773+P.2d+875&sc
d=WA> 773 P.2d 875). The statute allows a landlord to apply for a writ to
expeditiously determine who should possess the property while an unlawful
detainer action is pending. Meadow Park, 54 Wash.App. at 376,
<http://lawriter.net/getCitState.aspx?series=P.2d&citationno=773+P.2d+875&sc
d=WA> 773 P.2d 875. In fact, since a pendente lite writ issues on summary
proceedings, the landlord is typically required to post a bond [
<http://lawriter.net/caselink.aspx?series=P.3d&scd=WA&citationno=109%20P.3d%
20422#FN3> 3] to take possession. RCW 59.18.380. That is because "[a] show
cause hearing is not the final determination of the rights of the parties in
an unlawful detainer action." Carlstrom, 98 Wash.App. at 788,
<http://lawriter.net/getCitState.aspx?series=P.2d&citationno=990+P.2d+986&sc
d=WA> 990 P.2d 986.

Howard Herman

Herman Herman & Jolley PS

509 220 5810

From: wsbarp-bounces at lists.wsbarppt.com
[mailto:wsbarp-bounces at lists.wsbarppt.com] On Behalf Of Craig Gourley
Sent: Monday, June 4, 2018 8:37 AM
To: WSBA Real Property Listserv
Subject: Re: [WSBARP] unlawful detainer judgment

Thank you all for your insight.  I know in Snoco, the commissioners have
made it pretty clear that they won't grant a judgment if the tenant has
vacated. 

From: wsbarp-bounces at lists.wsbarppt.com
<mailto:wsbarp-bounces at lists.wsbarppt.com>
<wsbarp-bounces at lists.wsbarppt.com> On Behalf Of Paul Neumiller
Sent: Friday, June 1, 2018 4:14 PM
To: WSBA Real Property Listserv  <mailto:wsbarp at lists.wsbarppt.com>
<wsbarp at lists.wsbarppt.com>
Subject: Re: [WSBARP] unlawful detainer judgment

Craig, I read the statute differently from the other listserv members.  I
have had tenants move out after service of the summons and complaint but
before the show cause hearing.  When I informed the judge at the show cause
hearing that the T had moved out, the judge basically tossed the file aside
and said "next".  Then I pointed out to the judge that while it was no
longer necessary to obtain a Writ of Restitution, T still met the definition
of being in unlawful detainer because T was in possession of the premises
past the expiration of the 3 day notice and so the LL was still entitled to
a judgement.  The judge frowned but signed the judgement.

RCW 59.12.030 says that the "tenant of real property for a term less than
life is guilty of unlawful detainer either: ...

3) When he or she continues in possession in person or by subtenant after a
default in the payment of rent, and after notice in writing requiring in the
alternative the payment of the rent or the surrender of the detained
premises, served (in manner in RCW
<http://app.leg.wa.gov/RCW/default.aspx?cite=59.12.040> 59.12.040 provided)
in behalf of the person entitled to the rent upon the person owing it, has
remained uncomplied with for the period of three days after service thereof.
The notice may be served at any time after the rent becomes due." 

I would argue that if T stays in the premises for ANY TIME after the 3 day
notice has expired (and service of the summons and complaint), then T is
"guilty of unlawful detainer."  But, I guess it comes down to what does
"continues in possession" mean?  I have successfully argued that LL is still
entitled to a judgment because the T is "guilty of unlawful detainer" even
though T has vacated the premises.  The section says it's unlawful detainer
if T continues in possession after the end of the 3 day period, it doesn't
say that T must STAY in the premises past the expiration of the 3 day notice
and until the Show Cause Hearing.   No, I do not have case law to back it up
but that's my story and I'm sticking to it.  

  _____  

From: wsbarp-bounces at lists.wsbarppt.com <wsbarp-bounces at lists.wsbarppt.com>
on behalf of Craig Gourley <craig at glgmail.com>
Sent: Friday, June 1, 2018 3:04 PM
To: wsbarp at lists.wsbarppt.com
Subject: [WSBARP] unlawful detainer judgment 

Listmates, I know that when a tenant vacates the property priortothe show
cause, the UD action is no longer valid and tje action must be converted to
a money due or breach suit if you want a judgment. What I don't know is the
cite for why that is true. Anyone know the cite  for this? Also does it only
apply to residential or is it the same for commercial? Thanks in advance for
your wisdom. 

Sent from my Verizon, Samsung Galaxy smartphone

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