[WSBARP] Defensive Equitable Estoppel vs. Offensive Promissory Estoppel - Can A Commercial Lease Guarantor Be Held Liable After Many Lease Term Extensions Not No Extension of the Guranty And No Legal and No Notary?

Wed Dec 11 11:13:37 PST 2019

Landlord is estopped from claiming damages/enforcing a legally defective
lease (no notary & legal) they drafted.

Sophisticated commercial landlord could have drafted an enforceable lease
but didn’t.

The issue is who suffers the loss?

Attorney Robert R Rowley

W: (509) 252-5074

M: (509) 994-1143

rob at rowleylegal.com

*From:* wsbarp-bounces at lists.wsbarppt.com <wsbarp-bounces at lists.wsbarppt.com>
*On Behalf Of *Andrew Hay
*Sent:* Wednesday, December 11, 2019 10:54 AM
*To:* WSBA Real Property Listserv <wsbarp at lists.wsbarppt.com>
*Subject:* Re: [WSBARP] Defensive Equitable Estoppel vs. Offensive
Promissory Estoppel - Can A Commercial Lease Guarantor Be Held Liable After
Many Lease Term Extensions Not No Extension of the Guranty And No Legal and
No Notary?

Why is the landlord estopped?  What action or inaction has he taken that
the tenant relied on?

*Andrew Hay*

Hay & Swann PLLC

201 S. 34th St.

Tacoma, WA 98418

*www.washingtonlaw.net <http://www.washingtonlaw.net/>*

*andrewhay at washingtonlaw.net <andrewhay at washingtonlaw.net>*

253.272.2400 (w)

253.377.3085 (c)

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*From:* wsbarp-bounces at lists.wsbarppt.com [
mailto:wsbarp-bounces at lists.wsbarppt.com <wsbarp-bounces at lists.wsbarppt.com>]
*On Behalf Of *Rowley, Rob
*Sent:* Wednesday, December 11, 2019 10:13 AM
*To:* WSBA Real Property Listserv
*Subject:* [WSBARP] Defensive Equitable Estoppel vs. Offensive Promissory
Estoppel - Can A Commercial Lease Guarantor Be Held Liable After Many Lease
Term Extensions Not No Extension of the Guranty And No Legal and No Notary?

Defensive equitable estoppel protects the tenant who takes possession/does
improvements from a landlord who would give a notice to terminate.
Offensive promissory estoppel allows for the landlord to obtain damages.

The question is what are the landlord's damages (if any) where the tenant
properly raises the defensive equitable estoppel and vacates the property?

To allow a landlord to collect damages for the entire lease term would
render equitable estoppel meaningless.

How about as to the guarantor?

Rob

------

Equitable estoppel is properly applied "as a `shield' or defense, while
promissory estoppel can be used as a `sword' in a cause of action for
damages." *Harberd v. City of Kettle Falls*, 84 P.3d 1241, 1252 (Div. 3,
2004); *State ex rel. D.R.M. v. Wood,* 109 Wash.App. 182, 196, 34 P.3d 887
(2001)
<https://scholar.google.com/scholar_case?case=972222103401496970&q=harberd&hl=en&as_sdt=4,48>
 (quoting *Klinke v. Famous Recipe Fried Chicken, Inc.,* 94 Wash.2d 255,
259, 616 P.2d 644 (1980)
<https://scholar.google.com/scholar_case?case=14702378598599616897&q=harberd&hl=en&as_sdt=4,48>
).

 In Washington, the statute of frauds applies to promissory estoppel
claims. *Greaves v. Med. Imaging Sys., Inc.*, 124 Wn.2d 389, 879 P.2d 276
(1994) (rejecting Restatement (Second) of Contracts § 139 (1981), which
would allow enforcement of an oral promise despite the statute of frauds if
reliance is foreseeable and injustice can be avoided only by enforcement).
RCW 64.04.010 provides that "[e]very conveyance of real estate, or any
interest therein, and every contract creating or evidencing any encumbrance
upon real estate, shall be by deed."

On Wed, Dec 11, 2019 at 9:45 AM Bryce Dille <Bryce at dillelaw.com> wrote:

I agree there is also the doctrine of part performance to take out of
operation of S/F.In my experience most judges are very reluctant in cases
of this type to use a technicality (Which is what most judges would
consider this defense ) to create a month to month tenancy where for years
the parties have considered it as a lease for years. What if shoe was on
the other foot and LL decided to give 30 days notice to terminate the
tenancy

And tenant considered it a long term lease?

*From:* wsbarp-bounces at lists.wsbarppt.com <wsbarp-bounces at lists.wsbarppt.com>
*On Behalf Of *Rob Wilson-Hoss
*Sent:* Wednesday, December 11, 2019 9:23 AM
*To:* 'WSBA Real Property Listserv' <wsbarp at lists.wsbarppt.com>
*Subject:* Re: [WSBARP] Can A Commercial Lease Guarantor Be Held Liable
After Many Lease Term Extensions Not No Extension of the Guranty And No
Legal and No Notary?

1.     Many strong cases that say that with an unnotarized, unrecorded
lease, it can still be valid for the sole reason that the parties have
treated it as valid for years. Don’t even require what we are used to
thinking about with part performance tests. Just, length of time they
treated it as controlling. I am pretty sure some of them also deal with
inadequate legal descriptions.

2.     There may well be some reason that the lease guarantee itself, as a
separate contract, is not also consecrated by time. I don’t know enough
about guarantee law to speculate.

Rob

“Success consecrates the most offensive crimes.” Seneca the Elder.

Robert D. Wilson-Hoss

Hoss & Wilson-Hoss, LLP

236 West Birch Street

Shelton, WA 98584

360 426-2999

www.hossandwilson-hoss.com

rob at hctc.com

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*From:* wsbarp-bounces at lists.wsbarppt.com <wsbarp-bounces at lists.wsbarppt.com>
*On Behalf Of *Rowley, Rob
*Sent:* Wednesday, December 11, 2019 8:53 AM
*To:* WSBA RPPT <wsbarp at lists.wsbarppt.com>
*Subject:* [WSBARP] Can A Commercial Lease Guarantor Be Held Liable After
Many Lease Term Extensions Not No Extension of the Guranty And No Legal and
No Notary?

Assume long term commercial lease signed by sophisticated landlord and
sophisticated corporate tenant who also signs as guarantor (spouse doesn't
sign).  Lease was never notarized nor contain a legal description.  In my
humble opinion it converted to a month to month tenancy after the first
year.

Assume several lease term extensions/estoppel certificate (no legal and no
notary) between landlord and corporate tenant but no new personal
guaranties.  Landlord claims it terminates many years in the future.

I'm aware of RCW 64.04.010 and case law as to legal description
requirements.  Read Stoebuck's Deskbook.

Landlord is attempting to use offensive equitable estoppel and breach of
warranty of authority (IMHO no such cause of action) to revive the lease
beyond a month to month tenancy. At best they could recover damages (if
any) under promissory estoppel for breach of the month to month tenancy.

Defenses? Arguments?

-- 

Robert R. Rowley

*Attorney & Counselor At Law*

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509.252.5074  m: 509.994.1143

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509.928.3084

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-- 

Robert R. Rowley

*Attorney & Counselor At Law*

p:

509.252.5074  m: 509.994.1143

f:

509.928.3084

a:

7 S Howard St, Ste 218, Spokane, WA 99201

w:

rowleylegal.com  e: rob at rowleylegal.com

<https://www.facebook.com/rowleylegal?>
<https://twitter.com/ROBERTRROWLEY>
<https://www.linkedin.com/in/rob-rowley-b2017211/>

Practice concentrated on business, real estate and general legal matters in
Washington and Idaho. NOTICE: The contents of this message and any
attachments may be protected by the attorney-client privilege, work product
doctrine or other applicable protections. If you are not the intended
recipient or have received this message in error, please notify the sender
and promptly delete the message. Thank you for your assistance. DISCLAIMER:
You should recognize that responses provided by e-mail means are akin to
ordinary telephone or face-to-face conversations and do not reflect the
level of factual or legal inquiry or analysis which would be applied in the
case of a formal legal opinion. A formal opinion may very well reach a
different conclusion.
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