[WSBARP] WSBARP Digest, Vol 77, Issue 12
STEPHEN WHITEHOUSE
swhite8893 at aol.com
Fri Feb 12 12:33:25 PST 2021
Craig,
I would think of the agent as like a subcontractor. They are not fully independent. They are supervised by the managing broker who can be vicariously liable. The actual interest in the transaction is owned by the brokerage, not the agent. Commissions are all paid to the brokerage, never directly to the agent. Therefore the brokerage holds money due the agent.
Steve Whitehouse
Sent from my iPad
> On Feb 12, 2021, at 12:00 PM, wsbarp-request at lists.wsbarppt.com wrote:
>
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> Today's Topics:
>
> 1. Re: Garnishment (Kary Krismer)
> 2. Re: Ejectment vs Eviction under moratorium (Paul Neumiller)
> 3. Seeking Referral for Estate Litigation in Garfield County
> (Marisa at mgelex.com)
> 4. Re: Garnishment (Douglas Scott)
> 5. Re: Garnishment (Craig Gourley)
> 6. Re: Attorney for Real Estate Issue (Gregory L. Ursich)
> 7. Off Topic - Spanish Speaking Attorney in Mount Vernon (Jim Doran)
> 8. Re: Referral Needed for ADF Purchase (Rich Holland)
> 9. Contracting Around Landlord Tenant Law (Jeff Davis)
> 10. Re: Contracting Around Landlord Tenant Law (Roger Moss)
> 11. Re: Contracting Around Landlord Tenant Law (Jeff Davis)
> 12. Re: Contracting Around Landlord Tenant Law (Roger Hawkes)
>
>
> ----------------------------------------------------------------------
>
> Message: 1
> Date: Thu, 11 Feb 2021 12:10:19 -0800
> From: Kary Krismer <Krismer at comcast.net>
> To: wsbarp at lists.wsbarppt.com
> Subject: Re: [WSBARP] Garnishment
> Message-ID: <393fb690-8d9f-a266-3d11-408d0def8442 at comcast.net>
> Content-Type: text/plain; charset="windows-1252"; Format="flowed"
>
> Before I answer, let me go check my mailbox.
>
> . . . .
>
> Whew.? Okay.? It would IMHO be the broker, but I would question whether
> a continuing writ works in an independent contractor situation.? I don't
> know that it doesn't, but I'm too lazy to look at that .? If it doesn't
> you'd have difficult timing issues, particularly where the agent was
> representing a buyer.
>
> Kary L. Krismer
> 206 723-2148
>
>> On 2/11/2021 11:38 AM, Craig Gourley wrote:
>> Listmates, I have a garnishment question that I am not sure on. Client
>> is a real estate company that was served a continuing writ on
>> earnings. Since the agent is an independant contractor and the amount
>> owed for commissions is the obligation of the Seller,? does the
>> brokerage owe her "compensation for personal service" or are they
>> holding an asset like bailment or a bank? Inquiring minds want to
>> know. Thanks, Craig
>>
>> Sent from my Verizon, Samsung Galaxy smartphone
>> Get Outlook for Android <https://aka.ms/ghei36>
>>
>> ***Disclaimer: Please note that RPPT listserv participation is not restricted to practicing attorneys and may include non-practicing attorneys, law students, professionals working in related fields, and others.***
>>
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> ------------------------------
>
> Message: 2
> Date: Thu, 11 Feb 2021 22:14:19 +0000
> From: Paul Neumiller <pneumiller at hotmail.com>
> To: WSBA Real Property Listserv <wsbarp at lists.wsbarppt.com>
> Subject: Re: [WSBARP] Ejectment vs Eviction under moratorium
> Message-ID:
> <MW3PR13MB3980E2BCA5B7D3C8FAD7A8A6D28C9 at MW3PR13MB3980.namprd13.prod.outlook.com>
>
> Content-Type: text/plain; charset="us-ascii"
>
> Actually under #2, there is no ambiguity. The RCW says you have the right to evict:
>
>
> RCW 61.24.060
> Rights and remedies of trustee's sale purchaser-Written notice to occupants or tenants.
> (1) The purchaser at the trustee's sale shall be entitled to possession of the property on the twentieth day following the sale, as against the borrower and grantor under the deed of trust and anyone having an interest junior to the deed of trust, including occupants who are not tenants, who were given all of the notices to which they were entitled under this chapter. The purchaser shall also have a right to the summary proceedings to obtain possession of real property provided in chapter 59.12 RCW.
>
> But, then you have to work within the parameter of the moratorium. Either the occupants present a danger to person or property or your owner plans to either move in or sell it.
>
>
> [cid:image002.jpg at 01D70080.2CF1FFB0]
>
> From: wsbarp-bounces at lists.wsbarppt.com <wsbarp-bounces at lists.wsbarppt.com> On Behalf Of Timothy Lehr
> Sent: Wednesday, February 10, 2021 2:26 PM
> To: wsbarp at lists.wsbarppt.com
> Subject: [WSBARP] Ejectment vs Eviction under moratorium
>
> All,
>
> Has anyone successfully pursued an ejectment action under the moratorium vs an eviction? I have a couple cases where an ejectment seems proper vs an eviction as there is no LL/T relationship.
>
> Case 1 - PC allowed occupant to stay in a manufactured home on his property a few years ago. No rent exchanged. PC wanted to "help" the occupant during rough times, but now occupant is refusing to leave and causing other types of problems. PC is selling the manufactured home and a 60-Day notice was properly served with affidavit and purchase agreement signed by buyer. I would love to file eviction under RLLTA and cite "Intent to Sell" exception to moratorium to speed things up, but I believe this is more of an ejectment situation and don't want to get to a hearing and get it tossed out.
>
> Case 2- PC purchased home at foreclosure sale. Previous owner is now refusing to vacate. The sheriff already told PC they can't help and to get attorney. I haven't determined yet whether PC is planning to "occupy" the property or not. If he does wish to occupy, we serve 60-Day with attachments and we're in the same scenario as Case 1, ejectment vs eviction. If he doesn't intend to occupy, can we move forward with ejectment action under the moratorium where none of the exceptions are present? If not, it seems property owners have ZERO recourse in the event of a squatter on their property without the presence of exceptions...? That seems wild to me, but par for the course with this moratorium.
>
> Any thoughts would be appreciated!
>
> Timothy C. Lehr
> Attorney at Law
>
> [cid:image004.jpg at 01D7007F.B1B51440]
>
> p: 360.855.0131
> e: timothy at stileslaw.com<mailto:timothy at stileslaw.com>
> w: www.stileslaw.com<https://na01.safelinks.protection.outlook.com/?url=http%3A%2F%2Fwww.stileslaw.com%2F&data=04%7C01%7C%7C60eab0114c684570b8c308d8ce135a73%7C84df9e7fe9f640afb435aaaaaaaaaaaa%7C1%7C0%7C637485929806990467%7CUnknown%7CTWFpbGZsb3d8eyJWIjoiMC4wLjAwMDAiLCJQIjoiV2luMzIiLCJBTiI6Ik1haWwiLCJXVCI6Mn0%3D%7C1000&sdata=x10JNm7NYjYBr3Skgv0zwudP9hzYvx6B8X9M1mT6POw%3D&reserved=0>
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> ------------------------------
>
> Message: 3
> Date: Thu, 11 Feb 2021 14:58:36 -0800
> From: <Marisa at mgelex.com>
> To: <wsbarp at lists.wsbarppt.com>
> Cc: 'Marisa Broggel' <marisa at mgelex.com>
> Subject: [WSBARP] Seeking Referral for Estate Litigation in Garfield
> County
> Message-ID: <11bb01d700c9$6e9e17c0$4bda4740$@mgelex.com>
> Content-Type: text/plain; charset="us-ascii"
>
> Good Afternoon all,
>
> On behalf of one of my clients, I am looking for a probate/estate attorney
> who can handle the removal of a PR in a probate matter, in or around
> Garfield County. Please get in touch if you or someone you know would be
> available.
>
> Thank you!
>
>
>
> Best Regards,
>
>
>
> Marisa E. Broggel
>
> McCune, Godfrey, Emerick & Broggel, Inc. PS
>
> 4500 9th Ave. NE Suite 300
>
> Seattle, WA 98105
>
> (206)632-0575 Phone
>
> (206)238-9487 FAX
>
> marisa at mgelex.com <mailto:marisa at mgelex.com>
>
>
>
>
>
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> ------------------------------
>
> Message: 4
> Date: Thu, 11 Feb 2021 16:03:22 -0800
> From: Douglas Scott <doug at rainieradvocates.com>
> To: WSBA Real Property Listserv <wsbarp at lists.wsbarppt.com>
> Subject: Re: [WSBARP] Garnishment
> Message-ID:
> <CANnLPWBdi9uC15qnrP1ZdfnBKR91ZeEYHFoqQZdBggvFJAwz6Q at mail.gmail.com>
> Content-Type: text/plain; charset="utf-8"
>
> I agree with Roger. If the funds from escrow go into the real estate
> company's account for further distribution to the agent/broker, then the
> writ is effective upon the company.
> *DOUGLAS W. SCOTT*
> Rainier Legal Advocates|LLC
>
> 465 Rainier Blvd. N., Suite C
> Issaquah, Washington 98027
> 425.392.8550 (tel)
> 425.392.2829 (fax)
>
>
>
> www.rainieradvocates.com
>
>
> Notice: This communication, including attachments, may contain information
> that is confidential and protected by the attorney/client or other
> privileges. It constitutes non-public information intended to be conveyed
> only to the designated recipient(s). If the reader or recipient of this
> communication is not the intended recipient, an employee or agent of the
> intended recipient who is responsible for delivering it to the intended
> recipient, or you believe that you have received this communication in
> error, please notify the sender immediately by return e-mail and promptly
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> a waiver of any attorney/client or other privilege
>
>
>> On Thu, Feb 11, 2021 at 12:12 PM Kary Krismer <Krismer at comcast.net> wrote:
>>
>> Before I answer, let me go check my mailbox.
>>
>> . . . .
>>
>> Whew. Okay. It would IMHO be the broker, but I would question whether a
>> continuing writ works in an independent contractor situation. I don't know
>> that it doesn't, but I'm too lazy to look at that . If it doesn't you'd
>> have difficult timing issues, particularly where the agent was representing
>> a buyer.
>>
>> Kary L. Krismer
>> 206 723-2148
>>
>> On 2/11/2021 11:38 AM, Craig Gourley wrote:
>>
>> Listmates, I have a garnishment question that I am not sure on. Client is
>> a real estate company that was served a continuing writ on earnings. Since
>> the agent is an independant contractor and the amount owed for commissions
>> is the obligation of the Seller, does the brokerage owe her "compensation
>> for personal service" or are they holding an asset like bailment or a bank?
>> Inquiring minds want to know. Thanks, Craig
>>
>> Sent from my Verizon, Samsung Galaxy smartphone
>> Get Outlook for Android <https://aka.ms/ghei36>
>>
>> ***Disclaimer: Please note that RPPT listserv participation is not restricted to practicing attorneys and may include non-practicing attorneys, law students, professionals working in related fields, and others.***
>>
>> _______________________________________________
>> WSBARP mailing listWSBARP at lists.wsbarppt.comhttp://mailman.fsr.com/mailman/listinfo/wsbarp
>>
>>
>>
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>> ***Disclaimer: Please note that RPPT listserv participation is not
>> restricted to practicing attorneys and may include non-practicing
>> attorneys, law students, professionals working in related fields, and
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> ------------------------------
>
> Message: 5
> Date: Fri, 12 Feb 2021 00:57:02 +0000
> From: Craig Gourley <craig at glgmail.com>
> To: WSBA Real Property Listserv <wsbarp at lists.wsbarppt.com>
> Subject: Re: [WSBARP] Garnishment
> Message-ID:
> <MW3PR12MB43466C0BAE5B4F3EF7BEA2B6AE8B9 at MW3PR12MB4346.namprd12.prod.outlook.com>
>
> Content-Type: text/plain; charset="us-ascii"
>
> Thank you. Thank goodness the garnishee decided to pay it and make the issue moot.
>
> Sent from my Verizon, Samsung Galaxy smartphone
> Get Outlook for Android<https://aka.ms/ghei36>
>
> ________________________________
> From: wsbarp-bounces at lists.wsbarppt.com <wsbarp-bounces at lists.wsbarppt.com> on behalf of Douglas Scott <doug at rainieradvocates.com>
> Sent: Thursday, February 11, 2021 6:03:22 PM
> To: WSBA Real Property Listserv <wsbarp at lists.wsbarppt.com>
> Subject: Re: [WSBARP] Garnishment
>
> I agree with Roger. If the funds from escrow go into the real estate company's account for further distribution to the agent/broker, then the writ is effective upon the company.
> DOUGLAS W. SCOTT
> Rainier Legal Advocates|LLC
>
> 465 Rainier Blvd. N., Suite C
> Issaquah, Washington 98027
> 425.392.8550 (tel)
> 425.392.2829 (fax)
>
>
>
> www.rainieradvocates.com<http://www.rainieradvocates.com/>
>
>
> Notice: This communication, including attachments, may contain information that is confidential and protected by the attorney/client or other privileges. It constitutes non-public information intended to be conveyed only to the designated recipient(s). If the reader or recipient of this communication is not the intended recipient, an employee or agent of the intended recipient who is responsible for delivering it to the intended recipient, or you believe that you have received this communication in error, please notify the sender immediately by return e-mail and promptly delete this e-mail, including attachments without reading or saving them in any manner. The unauthorized use, dissemination, distribution, or reproduction of this e-mail, including attachments, is prohibited and may be unlawful. Receipt by anyone other than the intended recipient(s) is not a waiver of any attorney/client or other privilege
>
>
> On Thu, Feb 11, 2021 at 12:12 PM Kary Krismer <Krismer at comcast.net<mailto:Krismer at comcast.net>> wrote:
>
> Before I answer, let me go check my mailbox.
>
> . . . .
>
> Whew. Okay. It would IMHO be the broker, but I would question whether a continuing writ works in an independent contractor situation. I don't know that it doesn't, but I'm too lazy to look at that . If it doesn't you'd have difficult timing issues, particularly where the agent was representing a buyer.
>
> Kary L. Krismer
> 206 723-2148
>
> On 2/11/2021 11:38 AM, Craig Gourley wrote:
> Listmates, I have a garnishment question that I am not sure on. Client is a real estate company that was served a continuing writ on earnings. Since the agent is an independant contractor and the amount owed for commissions is the obligation of the Seller, does the brokerage owe her "compensation for personal service" or are they holding an asset like bailment or a bank? Inquiring minds want to know. Thanks, Craig
>
> Sent from my Verizon, Samsung Galaxy smartphone
> Get Outlook for Android<https://aka.ms/ghei36>
>
>
>
> ***Disclaimer: Please note that RPPT listserv participation is not restricted to practicing attorneys and may include non-practicing attorneys, law students, professionals working in related fields, and others.***
>
> _______________________________________________
> WSBARP mailing list
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>
>
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> ------------------------------
>
> Message: 6
> Date: Fri, 12 Feb 2021 05:01:14 +0000
> From: "Gregory L. Ursich" <gursich at insleebest.com>
> To: WSBA Real Property Listserv <wsbarp at lists.wsbarppt.com>
> Subject: Re: [WSBARP] Attorney for Real Estate Issue
> Message-ID:
> <MWHPR17MB1501700350B502259DFA8F7DDC8B9 at MWHPR17MB1501.namprd17.prod.outlook.com>
>
> Content-Type: text/plain; charset="windows-1252"
>
> Deborah: I litigate road access cases on a regular basis. In fact, I had a particularly nasty one involving high end waterfront properties in Medina go to trial in January 2020 for 6 days, and we prevailed on all claims and I got my clients a substantial fee award as well. My practice also includes handling title claims for various title underwriters that often involve driveway and access issues. I would be happy to discuss with you the landlocked property case you refer to in your email. In addition to my office numbers, I am also available on my cell phone at 206-353-2539. -Greg Ursich
>
> [cid:image003.jpg at 01D700B8.E104CE50]
> Gregory L. Ursich
> Shareholder
> Skyline Tower, Suite 1500 | 10900 NE 4th Street | Bellevue, WA 98004
> P: 425.450.4258 | F: 425.635.7720
> vCard<http://www.insleebest.com/uploads/vcards/gursich.vcf> | website<http://www.insleebest.com/> | gursich at insleebest.com<mailto:gursich at insleebest.com>
>
> This electronic mail transmission is privileged and confidential and is intended only for the review of the party to whom it is addressed. If you have received this transmission in error, please immediately return it to the sender. Unintended transmission shall not constitute waiver of the attorney-client or any other privilege.
>
> From: wsbarp-bounces at lists.wsbarppt.com [mailto:wsbarp-bounces at lists.wsbarppt.com] On Behalf Of deborah at neillaw.com
> Sent: Wednesday, February 10, 2021 10:34 AM
> To: wsbarp at lists.wsbarppt.com
> Subject: [WSBARP] Attorney for Real Estate Issue
>
> Hello,
>
> We are looking for an attorney to represent us in a case involving two parcels of landlocked property. Self-referrals welcome.
>
> Thank you.
>
> Deborah Jameson
> (Pronouns: she/her/hers)
>
> Neil & Neil, P.S.
> 5302 Pacific Avenue
> Tacoma, WA 98408
> 253-475-8600
> 253-473-5746 FAX
>
> If your matter is urgent, please call my office. Also, this message is not encrypted and it may not be secure or protected by attorney-client privilege.
>
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> ------------------------------
>
> Message: 7
> Date: Fri, 12 Feb 2021 08:38:05 -0800
> From: Jim Doran <jim at doranlegal.com>
> To: WSBA Real Property Listserv <wsbarp at lists.wsbarppt.com>
> Subject: [WSBARP] Off Topic - Spanish Speaking Attorney in Mount
> Vernon
> Message-ID:
> <CANk51bAUAO_Xn7h+qHzA6ZJMXcJTkYGBRWGO+=1FYBQ2Ew8qJQ at mail.gmail.com>
> Content-Type: text/plain; charset="utf-8"
>
> Hello Listies:
>
> A former client has a friend who needs a Spanish speaking attorney in the
> Mount Vernon area. Bellingham would be okay, too. this is a divorce
> matter with custody issues.
>
> Thank you.
>
> Jim Doran
>
> James R. Doran
> Attorney at Law
> 100 E. Pine Street - Suite 205
> Bellingham, WA 98225
> (360)393-9506
> jim at doranlegal.com
> www.doranlegal.com
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> ------------------------------
>
> Message: 8
> Date: Fri, 12 Feb 2021 17:42:41 +0000
> From: Rich Holland <rich at pnwle.com>
> To: WSBA Real Property Listserv <wsbarp at lists.wsbarppt.com>
> Subject: Re: [WSBARP] Referral Needed for ADF Purchase
> Message-ID:
> <MWHPR15MB16799D0C933C777DAC83369FC58B9 at MWHPR15MB1679.namprd15.prod.outlook.com>
>
> Content-Type: text/plain; charset="us-ascii"
>
> Sam,
>
> We routinely close AFH purchases and would be glad to assist.
>
> Sincerely,
>
> Richard L. Holland
> Attorney, WSBA# 23921
>
> Due to COVID19, the majority of staff is working remotely. Please email us, rather than calling, whenever possible.
>
> [logo-for-print.jpg]
> 603 4th Avenue, Suite
> Kirkland, WA 98033
> 877.785.8734 / 866.982.5080 (fax)
>
> BE AWARE! Online banking fraud is on the rise. ***PLEASE NOTE: WE DO NOT SEND FUNDING INSTRUCTIONS VIA EMAIL, PLEASE CALL OUR OFFICE TO VERIFY INSTRUCTIONS BEFORE SENDING ANY FUNDS***
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> The information contained in this communication, and in any attached document(s), is privileged and/or confidential, intended solely for the individual/entity to whom/which it was sent. If you are not the intended recipient, you are hereby notified that any dissemination, distribution, or copying of this information is strictly prohibited. If you have received this email in error, please notify me immediately at the email address, mailing address, or telephone or fax number above.
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>
> From: wsbarp-bounces at lists.wsbarppt.com <wsbarp-bounces at lists.wsbarppt.com> On Behalf Of Samuel M. Meyler
> Sent: Thursday, February 11, 2021 10:40 AM
> To: 'WSBA Real Property Listserv' <wsbarp at lists.wsbarppt.com>
> Subject: [WSBARP] Referral Needed for ADF Purchase
>
> Listmates,
>
> PC is in the process of purchasing an Adult Family Home located in Vancouver, WA. They are already under contract to buy the real estate and need to properly document the purchase of the business/assets and set up an LLC for the new AFH. Purchase and Sale Agreement for the property likely needs to be amended as well. My understanding is that they have a 10 day contingency window and I will not be available to help them on this matter. Self-referrals are welcome. Experience with AFH transactions is a plus! Thanks.
>
> Sam
>
>
>
> Samuel M. Meyler
> Meyler Legal, PLLC
> 1700 Westlake Ave. N., Ste. 200
> Seattle, Washington 98109
> Tel: 206.876.7770
> Fax: 206.876.7771
> Email: samuel at meylerlegal.com<mailto:samuel at meylerlegal.com>
>
> NOTICE:
>
> This electronic message contains information which may be Confidential or Privileged and constitutes an electronic communication within the meaning of the Electronic Communications Privacy Act 18 USC 2510. The information is intended to be for the use of the individual or entity named above. If you are not the intended recipient, please be aware that any disclosure, copying, distribution or use of the contents of this information is prohibited. If you received this transmission in error, please notify the sender and delete the copy you received together with any attachments. Thank you.
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> ------------------------------
>
> Message: 9
> Date: Fri, 12 Feb 2021 09:59:35 -0800
> From: "Jeff Davis" <jeff at bellanddavispllc.com>
> To: "'WSBA Real Property Listserv'" <wsbarp at lists.wsbarppt.com>
> Subject: [WSBARP] Contracting Around Landlord Tenant Law
> Message-ID: <000001d70168$d376be00$7a643a00$@bellanddavispllc.com>
> Content-Type: text/plain; charset="us-ascii"
>
> Listmates:
>
>
>
> Commercial Lease. It contains a remedies provision when Tenant defaults
> that allows for a non-judicial termination of the lease on ten days' notice.
> The clause specifically states "No judicial action is required to terminate
> the lease pursuant to this paragraph."
>
>
>
> The lease, by its terms, ends June 30, 2021. The tenant closed its business
> over a year ago yet still stores things in the unit; rent has been paid,
> sporadically, but usually only after a letter from me. Client wants to
> invoke the 10 day termination clause. To what extent are parties to a
> commercial lease allowed to contract around the landlord tenant law? Here
> Landlord would be using the 10 termination clause to shorten the contract
> term and forego any unlawful detainer action to judicially terminate the
> lease.
>
>
>
> Your thoughts!
>
>
>
> Jeff Davis
>
>
>
> W. Jeff Davis, Esq.
>
> BELL & DAVIS PLLC
> P.O. Box 510
> Sequim WA 98382
> Phone No.:(360) 683.1129
> Fax No.: (360) 683.1258
> email: <mailto:info at bellanddavispllc.com> info at bellanddavispllc.com
> <http://www.bellanddavispllc.com/> www.bellanddavispllc.com
>
> The information contained in this e-mail message may be privileged,
> confidential, and protected from disclosure. If you are not the intended
> recipient, any dissemination, distribution, or copying is strictly
> prohibited. If you think that you have received this e-mail message in
> error, please e-mail the sender at <mailto:info at bellanddavispllc.com>
> info at bellanddavispllc.com or call 360.683.1129
>
>
>
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>
> ------------------------------
>
> Message: 10
> Date: Fri, 12 Feb 2021 11:04:20 -0800
> From: Roger Moss <ram at rinconres.org>
> To: jeff at bellanddavispllc.com, RPPT Section
> <wsbarp at lists.wsbarppt.com>
> Subject: Re: [WSBARP] Contracting Around Landlord Tenant Law
> Message-ID: <B54BE691-09AA-49DA-83CF-2C606112B0A2 at rinconres.org>
> Content-Type: text/plain; charset="utf-8"
>
> Jeff that is a very odd provision, and it would be helpful have more context.
>
> These comments are made without reference to any moratoria rules, and spring from my experience in leasing roles for chain-stores and large shopping center organizations.
>
> My colleagues and I saw and often crafted thousands of uni-lateral rights to cancel leases. Examples include the one Starbucks puts into new store deals, and landlord clauses that give them the absolute right to recover space that may be essential to redevelop a property.
>
> The clauses are easy to write, but very detailed; scriveners work hard to avoid any ambiguity of intent, purpose or outcome.
>
> It is common for retail chains who acquire other retailers, and landlords who buy properties to redevelop, to find imperfect leases that contain cancelation rights that are ambiguous. The best strategy to deal with it is to exercise the damn option, and be prepared to negotiate from strength.
>
> With the other facts you describe, there does not seem much downside to exercising the option and then sit back and see what happens.
>
> The tenant may be relieved to get it.
>
> Roger A. Moss
> Managing Director
> Rincon Resolutions LLC
> 206.790.1971 Seattle
> 415.371.9724 San Francisco
> RinconRes.org
>
> Confidential Correspondence
> The information in this e-mail (including attachments, if any) is considered privileged and/or confidential and is intended only for the recipient(s) listed above. Any review, use, disclosure, distribution or copying of this e-mail is prohibited except by or on behalf of the intended recipient. If you have received this email in error, please notify me immediately by reply email, delete this email, and do not disclose its contents to anyone.
>
>
>> On Feb 12, 2021, at 9:59 AM, Jeff Davis <jeff at bellanddavispllc.com> wrote:
>>
>> Listmates:
>>
>> Commercial Lease. It contains a remedies provision when Tenant defaults that allows for a non-judicial termination of the lease on ten days? notice. The clause specifically states ?No judicial action is required to terminate the lease pursuant to this paragraph.?
>>
>> The lease, by its terms, ends June 30, 2021. The tenant closed its business over a year ago yet still stores things in the unit; rent has been paid, sporadically, but usually only after a letter from me. Client wants to invoke the 10 day termination clause. To what extent are parties to a commercial lease allowed to contract around the landlord tenant law? Here Landlord would be using the 10 termination clause to shorten the contract term and forego any unlawful detainer action to judicially terminate the lease.
>>
>> Your thoughts!
>>
>> Jeff Davis
>>
>> W. Jeff Davis, Esq.
>> BELL & DAVIS PLLC
>> P.O. Box 510
>> Sequim WA 98382
>> Phone No.:(360) 683.1129
>> Fax No.: (360) 683.1258
>> email: info at bellanddavispllc.com <mailto:info at bellanddavispllc.com>
>> www.bellanddavispllc.com <http://www.bellanddavispllc.com/>
>>
>> The information contained in this e-mail message may be privileged, confidential, and protected from disclosure. If you are not the intended recipient, any dissemination, distribution, or copying is strictly prohibited. If you think that you have received this e-mail message in error, please e-mail the sender at info at bellanddavispllc.com <mailto:info at bellanddavispllc.com> or call 360.683.1129
>>
>> ***Disclaimer: Please note that RPPT listserv participation is not restricted to practicing attorneys and may include non-practicing attorneys, law students, professionals working in related fields, and others.***
>>
>> _______________________________________________
>> WSBARP mailing list
>> WSBARP at lists.wsbarppt.com <mailto:WSBARP at lists.wsbarppt.com>
>> http://mailman.fsr.com/mailman/listinfo/wsbarp <http://mailman.fsr.com/mailman/listinfo/wsbarp>
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>
> ------------------------------
>
> Message: 11
> Date: Fri, 12 Feb 2021 11:20:08 -0800
> From: "Jeff Davis" <jeff at bellanddavispllc.com>
> To: "'Roger Moss'" <ram at rinconres.org>, "'RPPT Section'"
> <wsbarp at lists.wsbarppt.com>
> Subject: Re: [WSBARP] Contracting Around Landlord Tenant Law
> Message-ID: <000701d70174$1495e180$3dc1a480$@bellanddavispllc.com>
> Content-Type: text/plain; charset="utf-8"
>
> Thank you Roger for your experience and insight. First, this was not my provision; The lease came to me when client moved attorneys. I am also not dealing the larger issues you have in your career.
>
>
>
> The tenant is an elderly person who ran a coffee/knickknack shop in Landlord?s small mall. Covid shut her down a ago. However, being somewhat of a hoarder, the shop has a lot of junk in it. Landlord, also elderly, let tenant stay as long as rent was paid, as tenant?s spouse was dying. That?s happened.
>
>
>
> The tenant will never reopen the coffee shop but still refuses to move. She?s tried to sell the business but is unreasonable in terms and has lost several interested buyers. Landlord just wants to get the unit back.
>
>
>
> I agree with you that tenant may not do anything if Landlord exercises the option. She lacks both the money and desire to fight. Landlord is also willing to store her stuff for a limited time for her to remove it.
>
>
>
> I just wanted to find out if there is any case law on these self-help contract clauses. Obviously, on the residential side I would never even think of putting such a provision in a lease. But Courts seem to give commercial parties more leeway.
>
>
>
> Jeff
>
>
>
> From: Roger Moss <ram at rinconres.org>
> Sent: Friday, February 12, 2021 11:04 AM
> To: jeff at bellanddavispllc.com; RPPT Section <wsbarp at lists.wsbarppt.com>
> Subject: Re: [WSBARP] Contracting Around Landlord Tenant Law
>
>
>
> Jeff that is a very odd provision, and it would be helpful have more context.
>
>
>
> These comments are made without reference to any moratoria rules, and spring from my experience in leasing roles for chain-stores and large shopping center organizations.
>
>
>
> My colleagues and I saw and often crafted thousands of uni-lateral rights to cancel leases. Examples include the one Starbucks puts into new store deals, and landlord clauses that give them the absolute right to recover space that may be essential to redevelop a property.
>
>
>
> The clauses are easy to write, but very detailed; scriveners work hard to avoid any ambiguity of intent, purpose or outcome.
>
>
>
> It is common for retail chains who acquire other retailers, and landlords who buy properties to redevelop, to find imperfect leases that contain cancelation rights that are ambiguous. The best strategy to deal with it is to exercise the damn option, and be prepared to negotiate from strength.
>
>
>
> With the other facts you describe, there does not seem much downside to exercising the option and then sit back and see what happens.
>
>
>
> The tenant may be relieved to get it.
>
>
>
> Roger A. Moss
>
> Managing Director
> Rincon Resolutions LLC
> 206.790.1971 Seattle
>
> 415.371.9724 San Francisco
>
> RinconRes.org <http://RinconRes.org>
>
> Confidential Correspondence
> The information in this e-mail (including attachments, if any) is considered privileged and/or confidential and is intended only for the recipient(s) listed above. Any review, use, disclosure, distribution or copying of this e-mail is prohibited except by or on behalf of the intended recipient. If you have received this email in error, please notify me immediately by reply email, delete this email, and do not disclose its contents to anyone.
>
>
>
>
>
> On Feb 12, 2021, at 9:59 AM, Jeff Davis <jeff at bellanddavispllc.com <mailto:jeff at bellanddavispllc.com> > wrote:
>
>
>
> Listmates:
>
>
>
> Commercial Lease. It contains a remedies provision when Tenant defaults that allows for a non-judicial termination of the lease on ten days? notice. The clause specifically states ?No judicial action is required to terminate the lease pursuant to this paragraph.?
>
>
>
> The lease, by its terms, ends June 30, 2021. The tenant closed its business over a year ago yet still stores things in the unit; rent has been paid, sporadically, but usually only after a letter from me. Client wants to invoke the 10 day termination clause. To what extent are parties to a commercial lease allowed to contract around the landlord tenant law? Here Landlord would be using the 10 termination clause to shorten the contract term and forego any unlawful detainer action to judicially terminate the lease.
>
>
>
> Your thoughts!
>
>
>
> Jeff Davis
>
>
>
> W. Jeff Davis, Esq.
>
> BELL & DAVIS PLLC
> P.O. Box 510
> Sequim WA 98382
> Phone No.:(360) 683.1129
> Fax No.: (360) 683.1258
> email: info at bellanddavispllc.com <mailto:info at bellanddavispllc.com>
> www.bellanddavispllc.com <http://www.bellanddavispllc.com/>
>
> The information contained in this e-mail message may be privileged, confidential, and protected from disclosure. If you are not the intended recipient, any dissemination, distribution, or copying is strictly prohibited. If you think that you have received this e-mail message in error, please e-mail the sender at info at bellanddavispllc.com <mailto:info at bellanddavispllc.com> or call 360.683.1129
>
>
>
> ***Disclaimer: Please note that RPPT listserv participation is not restricted to practicing attorneys and may include non-practicing attorneys, law students, professionals working in related fields, and others.***
>
> _______________________________________________
> WSBARP mailing list
> <mailto:WSBARP at lists.wsbarppt.com> WSBARP at lists.wsbarppt.com
> <http://mailman.fsr.com/mailman/listinfo/wsbarp> http://mailman.fsr.com/mailman/listinfo/wsbarp
>
>
>
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>
> ------------------------------
>
> Message: 12
> Date: Fri, 12 Feb 2021 19:40:31 +0000
> From: Roger Hawkes <Roger at law-hawks.com>
> To: "jeff at bellanddavispllc.com" <jeff at bellanddavispllc.com>, WSBA Real
> Property Listserv <wsbarp at lists.wsbarppt.com>
> Subject: Re: [WSBARP] Contracting Around Landlord Tenant Law
> Message-ID:
> <MN2PR16MB2750B9B9CC7335A8952445D9E98B9 at MN2PR16MB2750.namprd16.prod.outlook.com>
>
> Content-Type: text/plain; charset="utf-8"
>
> Jeff: with husband dying there may be an opportunity for erase any lease debt from client?s name. consider that in your overall analysis.
>
> From: wsbarp-bounces at lists.wsbarppt.com <wsbarp-bounces at lists.wsbarppt.com> On Behalf Of Jeff Davis
> Sent: Friday, February 12, 2021 11:20 AM
> To: 'Roger Moss' <ram at rinconres.org>; 'RPPT Section' <wsbarp at lists.wsbarppt.com>
> Subject: Re: [WSBARP] Contracting Around Landlord Tenant Law
>
> Thank you Roger for your experience and insight. First, this was not my provision; The lease came to me when client moved attorneys. I am also not dealing the larger issues you have in your career.
>
> The tenant is an elderly person who ran a coffee/knickknack shop in Landlord?s small mall. Covid shut her down a ago. However, being somewhat of a hoarder, the shop has a lot of junk in it. Landlord, also elderly, let tenant stay as long as rent was paid, as tenant?s spouse was dying. That?s happened.
>
> The tenant will never reopen the coffee shop but still refuses to move. She?s tried to sell the business but is unreasonable in terms and has lost several interested buyers. Landlord just wants to get the unit back.
>
> I agree with you that tenant may not do anything if Landlord exercises the option. She lacks both the money and desire to fight. Landlord is also willing to store her stuff for a limited time for her to remove it.
>
> I just wanted to find out if there is any case law on these self-help contract clauses. Obviously, on the residential side I would never even think of putting such a provision in a lease. But Courts seem to give commercial parties more leeway.
>
> Jeff
>
> From: Roger Moss <ram at rinconres.org<mailto:ram at rinconres.org>>
> Sent: Friday, February 12, 2021 11:04 AM
> To: jeff at bellanddavispllc.com<mailto:jeff at bellanddavispllc.com>; RPPT Section <wsbarp at lists.wsbarppt.com<mailto:wsbarp at lists.wsbarppt.com>>
> Subject: Re: [WSBARP] Contracting Around Landlord Tenant Law
>
> Jeff that is a very odd provision, and it would be helpful have more context.
>
> These comments are made without reference to any moratoria rules, and spring from my experience in leasing roles for chain-stores and large shopping center organizations.
>
> My colleagues and I saw and often crafted thousands of uni-lateral rights to cancel leases. Examples include the one Starbucks puts into new store deals, and landlord clauses that give them the absolute right to recover space that may be essential to redevelop a property.
>
> The clauses are easy to write, but very detailed; scriveners work hard to avoid any ambiguity of intent, purpose or outcome.
>
> It is common for retail chains who acquire other retailers, and landlords who buy properties to redevelop, to find imperfect leases that contain cancelation rights that are ambiguous. The best strategy to deal with it is to exercise the damn option, and be prepared to negotiate from strength.
>
> With the other facts you describe, there does not seem much downside to exercising the option and then sit back and see what happens.
>
> The tenant may be relieved to get it.
>
> Roger A. Moss
> Managing Director
> Rincon Resolutions LLC
> 206.790.1971 Seattle
> 415.371.9724 San Francisco
> RinconRes.org<http://RinconRes.org>
>
> Confidential Correspondence
> The information in this e-mail (including attachments, if any) is considered privileged and/or confidential and is intended only for the recipient(s) listed above. Any review, use, disclosure, distribution or copying of this e-mail is prohibited except by or on behalf of the intended recipient. If you have received this email in error, please notify me immediately by reply email, delete this email, and do not disclose its contents to anyone.
>
> On Feb 12, 2021, at 9:59 AM, Jeff Davis <jeff at bellanddavispllc.com<mailto:jeff at bellanddavispllc.com>> wrote:
>
> Listmates:
>
> Commercial Lease. It contains a remedies provision when Tenant defaults that allows for a non-judicial termination of the lease on ten days? notice. The clause specifically states ?No judicial action is required to terminate the lease pursuant to this paragraph.?
>
> The lease, by its terms, ends June 30, 2021. The tenant closed its business over a year ago yet still stores things in the unit; rent has been paid, sporadically, but usually only after a letter from me. Client wants to invoke the 10 day termination clause. To what extent are parties to a commercial lease allowed to contract around the landlord tenant law? Here Landlord would be using the 10 termination clause to shorten the contract term and forego any unlawful detainer action to judicially terminate the lease.
>
> Your thoughts!
>
> Jeff Davis
>
> W. Jeff Davis, Esq.
> BELL & DAVIS PLLC
> P.O. Box 510
> Sequim WA 98382
> Phone No.:(360) 683.1129
> Fax No.: (360) 683.1258
> email: info at bellanddavispllc.com<mailto:info at bellanddavispllc.com>
> www.bellanddavispllc.com<http://www.bellanddavispllc.com/>
>
> The information contained in this e-mail message may be privileged, confidential, and protected from disclosure. If you are not the intended recipient, any dissemination, distribution, or copying is strictly prohibited. If you think that you have received this e-mail message in error, please e-mail the sender at info at bellanddavispllc.com<mailto:info at bellanddavispllc.com> or call 360.683.1129
>
> ***Disclaimer: Please note that RPPT listserv participation is not restricted to practicing attorneys and may include non-practicing attorneys, law students, professionals working in related fields, and others.***
>
> _______________________________________________
> WSBARP mailing list
> WSBARP at lists.wsbarppt.com<mailto:WSBARP at lists.wsbarppt.com>
> http://mailman.fsr.com/mailman/listinfo/wsbarp
>
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>
> ------------------------------
>
> ***Disclaimer: Please note that RPPT listserv participation is not restricted to practicing attorneys and may include non-practicing attorneys, law students, professionals working in related fields, and others.***
> _______________________________________________
> WSBARP mailing list
> WSBARP at lists.wsbarppt.com
> http://mailman.fsr.com/mailman/listinfo/wsbarp
>
> End of WSBARP Digest, Vol 77, Issue 12
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