[WSBARP] Best practices on whether to record, and form of, Memorandum of Lease?

[Douglas Scott]

Eric, In my experience many commercial landlords in 5 year plus leases
insert in their leases that no Memorandum of Lease shall be recorded by the
tenant without the Landlord's express consent.  Landlords are then
reluctant to provide such consent. Therefore, recordings of commercial
leases are not common.
*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


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On Wed, Jan 27, 2021 at 3:40 PM Eric Nelsen <eric at sayrelawoffices.com>
wrote:

> Crap. You’re right; I meant RCW 65.08.060
> <https://app.leg.wa.gov/RCW/default.aspx?cite=65.08.060>:
>
>
>
> *RCW 65.08.060 <http://app.leg.wa.gov/RCW/default.aspx?cite=65.08.060>*
>
> *Terms defined.*
>
> (1) The term "real property" as used in RCW *65.08.060*
> <http://app.leg.wa.gov/RCW/default.aspx?cite=65.08.060> through
> *65.08.150* <http://app.leg.wa.gov/RCW/default.aspx?cite=65.08.150> includes
> lands, tenements and hereditaments and chattels real and mortgage liens
> thereon except a leasehold for a term not exceeding two years.
>
> (2) The term "purchaser" includes every person to whom any estate or
> interest in real property is conveyed for a valuable consideration and
> every assignee of a mortgage, lease or other conditional estate.
>
> (3) The term "conveyance" includes every written instrument by which any
> estate or interest in real property is created, transferred, mortgaged or
> assigned or by which the title to any real property may be affected,
> including an instrument in execution of a power, although the power be one
> of revocation only, and an instrument releasing in whole or in part,
> postponing or subordinating a mortgage or other lien; except a will, a
> lease for a term of not exceeding two years, and an instrument granting a
> power to convey real property as the agent or attorney for the owner of the
> property. "To convey" is to execute a "conveyance" as defined in this
> subdivision.
>
> (4) The term "recording officer" means the county auditor or, in charter
> counties, the county official charged with the responsibility for recording
> instruments in the county records.
>
>
>
>
>
> By the way, I haven’t received any responses. I think I’m sticking to my
> story—letting clients choose whether to go through the recording steps or
> just let their obvious possession be their protection against a transfer of
> landlord’s interest.
>
>
>
>
>
> Sincerely,
>
>
>
> Eric
>
>
>
> Eric C. Nelsen
>
> Sayre Law Offices, PLLC
>
> 1417 31st Ave South
>
> Seattle WA 98144-3909
>
> 206-625-0092
>
> eric at sayrelawoffices.com
>
>
>
> *Covid-19 Update - *All attorneys are working remotely during regular
> business hours and are available via email and by phone. Videoconferencing
> also is available. Signing of estate planning documents can be completed
> and will be handled on a case-by-case basis. Please direct mail and
> deliveries to the Seattle office.
>
>
>
> *From:* wsbarp-bounces at lists.wsbarppt.com <
> wsbarp-bounces at lists.wsbarppt.com> *On Behalf Of *Roger Hawkes
> *Sent:* Wednesday, January 27, 2021 3:24 PM
> *To:* WSBA Real Property Listserv <wsbarp at lists.wsbarppt.com>
> *Subject:* Re: [WSBARP] Best practices on whether to record, and form of,
> Memorandum of Lease?
>
>
>
> Eric: the statute you cite does not say the ‘two year’ requirement.
>
>
>
> *From:* wsbarp-bounces at lists.wsbarppt.com <
> wsbarp-bounces at lists.wsbarppt.com> *On Behalf Of *Eric Nelsen
> *Sent:* Monday, January 25, 2021 11:02 AM
> *To:* WSBA Real Property Listserv <wsbarp at lists.wsbarppt.com>
> *Subject:* [WSBARP] Best practices on whether to record, and form of,
> Memorandum of Lease?
>
>
>
> Counselors:
>
>
>
> Client is entering into a residential lease of a house for a five-year
> term. Technically any lease longer than two years must be recorded in order
> to impart notice to subsequent bona fide purchasers, lenders, etc. RCW
> 65.08.070
> <https://app.leg.wa.gov/RCW/default.aspx?cite=65.08&full=true#65.08.070>.
> But there are decades of case law making clear that a tenant’s obvious sole
> and exclusive possession of the property imparts constructive notice
> sufficient to protect the tenant's lease rights against a bona fide
> purchaser even without any recorded notice. *Nichols v. De Britz*, 178
> Wash. 375, 35 P.2d 29 (1934); * see also* *OneWest Bank, FSB v. Erickson*,
> 185 Wn.2d 43, 67, 367 P.3d 1063 (2016) (holding that there is no
> constructive notice of tenant’s right when the tenant is a co-occupant
> together with the record owner).
>
>
>
> So my practice is to advise the client of the statutory requirement and
> the protective case law, and let them make a decision as to whether or not
> they want to require recording of a memorandum of lease. Does anyone
> routinely advise "yes" or "no" instead? For commercial properties I suppose
> I might lean toward recording a Memorandum in most circumstances, but for
> residential it seems a bit overkill.
>
>
>
> Also, what if the lease is already executed and in effect, and is silent
> concerning recording. Could the tenant, without cooperation or consent of
> the landlord, execute and record a "Memorandum of Lease"? I think the
> answer is "yes," and it would be sufficient to impart notice even if
> technically defective in some fashion; and it could not be considered
> slander of title or otherwise wrongful so long as it accurately gives
> notice concerning the valid lease. And, of course, assuming that the lease
> terms do not prohibit recording. But am I being too casual about possible
> risk to the tenant?
>
>
>
> Sincerely,
>
>
>
> Eric
>
>
>
> Eric C. Nelsen
>
> Sayre Law Offices, PLLC
>
> 1417 31st Ave South
>
> Seattle WA 98144-3909
>
> 206-625-0092
>
> eric at sayrelawoffices.com
>
>
>
> *Covid-19 Update - *All attorneys are working remotely during regular
> business hours and are available via email and by phone. Videoconferencing
> also is available. Signing of estate planning documents can be completed
> and will be handled on a case-by-case basis. Please direct mail and
> deliveries to the Seattle office.
>
>
> ***Disclaimer: Please note that RPPT listserv participation is not
> restricted to practicing attorneys and may include non-practicing
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>
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