[WSBARP] City of Seattle v Long - No Longer Able to Tow Vehicles Occupied by Homeless?

[Mark Anderson]

But for those who deal with marinas and moorage, this is a question that probably warrants some discussion.  As much as providers of moorage would like to just cut the lines, it would appear that this scenario would be affected by the duties of a marina as a bailee.  Further thoughts on this?

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From: wsbarp-bounces at lists.wsbarppt.com <wsbarp-bounces at lists.wsbarppt.com> On Behalf Of Roger Hawkes
Sent: Monday, August 16, 2021 9:53 AM
To: WSBA Real Property Listserv <wsbarp at lists.wsbarppt.com>
Subject: Re: [WSBARP] City of Seattle v Long - No Longer Able to Tow Vehicles Occupied by Homeless?

Provocative thought😊

Roger Hawkes, WSBA # 5173

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From: wsbarp-bounces at lists.wsbarppt.com<mailto:wsbarp-bounces at lists.wsbarppt.com> <wsbarp-bounces at lists.wsbarppt.com<mailto:wsbarp-bounces at lists.wsbarppt.com>> On Behalf Of Kathleen Hopkins
Sent: Monday, August 16, 2021 9:26 AM
To: WSBA Real Property Listserv <wsbarp at lists.wsbarppt.com<mailto:wsbarp at lists.wsbarppt.com>>
Subject: Re: [WSBARP] City of Seattle v Long - No Longer Able to Tow Vehicles Occupied by Homeless?

Following this discussion, what about seizing a live aboard boat for nonpayment of moorage fees?  Should we just be cutting the lines and setting them adrift?

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From: wsbarp-bounces at lists.wsbarppt.com<mailto:wsbarp-bounces at lists.wsbarppt.com> <wsbarp-bounces at lists.wsbarppt.com<mailto:wsbarp-bounces at lists.wsbarppt.com>> On Behalf Of Scott Osborne
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To: WSBA Real Property Listserv <wsbarp at lists.wsbarppt.com<mailto:wsbarp at lists.wsbarppt.com>>
Subject: Re: [WSBARP] City of Seattle v Long - No Longer Able to Tow Vehicles Occupied by Homeless?

I don’t think this is going to be that far reaching, but clearly the business model of towing will have to be reconsidered, since the ability to recoup costs has been impaired. You would have to ask the City how much money is involved. The Court was a lot more circumspect on the subject of the reasonableness of towing fees than the superior court, but the message is if you tow, you better be prepared to eat the cost. Not good for property owners trying to get the city to enforce its parking ordinance.
Scott Osborne

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On Aug 13, 2021, at 4:46 PM, Eric Nelsen <Eric at sayrelawoffices.com<mailto:Eric at sayrelawoffices.com>> wrote:

The court interpreted the statute to mean that a written declaration of homestead is required only for property that is not presently occupied by the homesteader. If the vehicle is actually being occupied as the owner’s home, then it’s automatically a homestead.

I wonder what the implication is for someone living in a tent on the street. The tent would be homestead property, I think.

HOWEVER the majority opinion was at pains to state that the homestead exemption only protects against seizure of the property in payment of a debt. See page 20. Clearing tents from a park is not seizing the property in order to pay a debt. Towing and impounding a vehicle is not seizing property in order to pay a debt.

Homestead personal property remains subject to laws that authorize removal of property from an improper place. A landowner who arranges for a tow of a vehicle from their property therefore is not affected by homestead rights in the vehicle. The landowner also still has the right to sue the vehicle owner for the cost of towing and obtain a judgment, and try to collect. The homestead exemption means only that the judgment can’t be paid by attaching and selling the homestead vehicle itself.

The court’s decision might be the biggest headache for towing companies and junkyards or impound lots who try to pay their costs by auctioning vehicles. If the vehicle was being actively occupied by someone at the time it was impounded, it’s a homestead, and trying to pay the costs of impoundment by selling it is going to be tricky. Unless they are proceeding pursuant to a type of lien listed in RCW 6.13.080?

Rob Rowley’s original quote from the opinion is actually from the final paragraph of the 3-justice concurrence and is not binding authority. The majority opinion makes clear that towing/impoundment is still allowed.

As Stephen Whitehouse mentioned, the main thrust of the majority opinion is that the impoundment and penalty payment imposed was an excessive fine in violation of Wash. Const. Art. I, Sec. 14, and U.S. Const. amend. VIII. In order to avoid imposing an excessive fine, there must be an ability-to-pay inquiry, which the court suggests should be addressed by a municipal court hearing. See page 42. I’m sure that will thrill the municipal bench—they are just twiddling their thumbs all day anyway, right?

One other thing—the amount of the homestead has changed under the new law, 5408-S.SL<http://lawfilesext.leg.wa.gov/biennium/2021-22/Pdf/Bills/Session%20Laws/Senate/5408-S.SL.pdf>. I think I have this right—under the old law, the homestead amount was bifurcated, and was $125,000 for real property but only $15,000 for personal property. That’s the law this opinion applied. But under the new law effective as of May of this year, it doesn’t matter any more whether the homestead is real or personal property; the amount of the exemption is the greater of $125,000 or the “county median sale price of a single-family home in the preceding calendar year.”

Sincerely,

Eric

Eric C. Nelsen
Sayre Law Offices, PLLC
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From: wsbarp-bounces at lists.wsbarppt.com<mailto:wsbarp-bounces at lists.wsbarppt.com> <wsbarp-bounces at lists.wsbarppt.com<mailto:wsbarp-bounces at lists.wsbarppt.com>> On Behalf Of deborah at neillaw.com<mailto:deborah at neillaw.com>
Sent: Thursday, August 12, 2021 1:42 PM
To: WSBA Real Property Listserv <wsbarp at lists.wsbarppt.com<mailto:wsbarp at lists.wsbarppt.com>>
Subject: Re: [WSBARP] City of Seattle v Long - No Longer Able to Tow Vehicles Occupied by Homeless?

I am not sure I understand the Court’s interpretation of 6.13.  I read RCW 6.13.010 to say that a homestead can be real or personal property the owner uses as a residence.  An owner is not required to claim the homestead exemption if the real or personal property is a house or mobile home (not a truck).  For personal property that qualifies as a homestead (like a truck), the owner needs to make the declaration.

The Court seems to be saying that any real or personal property used as a residence is automatically a homestead, not just houses and mobile homes.  Doesn’t that make the declaration requirement superfluous?

Deborah Jameson
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On Aug 12, 2021, at 10:11 AM, Kaitlyn Jackson <kaitlyn at dimensionlaw.com<mailto:kaitlyn at dimensionlaw.com>> wrote:

This is unbelievable. The implications go far beyond just a vehicle, right?
Sent from my iPhone

On Aug 12, 2021, at 8:48 AM, Rob Rowley <rob at rowleylegal.com<mailto:rob at rowleylegal.com>> wrote:

It strikes me that this ruling will prevent municipalities from towing any abandoned vehicle for fear of someone claiming it was their homestead?  Am I reading too much into this?

How about private owners being able to exercise right of private tow on their own properties for fear of a claim of a homestead exemption?

New Supreme Court Opinions as of Thursday, August 12


Aug. 12, 2021 - 98824-2 - City of Seattle v. Long
https://www.courts.wa.gov/opinions/?fa=opinions.disp&filename=988242MAJ


“Simply  put,  the  homestead act was  intended to provide  shelter  for  families.  Macumber v.  Shafer,  96 Wn.2d 568,  570,  637 P.2d  645 (1981)  (citing  Clark  v. Davis,  37  Wn.2d  850,  226 P.2d 904 (1951)).   The  act  bars the  city  from  towing a vehicle  that is  occupied as a  primary  residence  and from  forcing an  individual to agree  to a  payment plan to prevent that vehicle  from  being  sold at a  public  auction.  With these  observations,  I  respectfully  concur.”


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