[WSBARP] Tenancy at will

[Scott Russon]

Boyfriend signs a lease.  Girlfriend later moves in with boyfriend with landlord's knowledge and permission, but girlfriend does not sign a lease.  Two years later (July 2021), boyfriend and girlfriend break up.  Boyfriend moves out, but girlfriend stays.  Girlfriend does not pay rent.  Is girlfriend a tenant under 59.18 or a tenant at will?

Same facts pattern, but instead of boyfriend/girlfriend it's husband/wife.  Only husband signs lease, but wife and kids move in with landlord's knowledge and permission, but wife does not sign the lease.  They separate and husband moves out.  Wife stay and does not pay rent.  Is wife a tenant under 59.18 or a tenant at will?

The lease is silent as to who else can reside in the property with the tenant (boyfriend or husband) who signed the lease.

Sincerely yours,

SCOTT E. RUSSON
Attorney at Law

Yates Marshall, PLLC
10000 N.E. 7th Avenue, Suite 200
Vancouver, WA 98685
Phone: (360) 449-6100
Fax:    (360) 449-6111

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From: wsbarp-bounces at lists.wsbarppt.com <wsbarp-bounces at lists.wsbarppt.com> On Behalf Of Eric Nelsen
Sent: Tuesday, November 2, 2021 10:58 AM
To: WSBA Real Property Listserv <wsbarp at lists.wsbarppt.com>
Subject: Re: [WSBARP] Tenancy at will

I litigated this issue a few years back, as a preliminary matter when dealing with a waste claim where the cohabitant's status as tenant or not was relevant to the standard of duty relating to damage to the real property. Here's the briefing, for what it's worth. I agree with Kaitlyn that UD doesn't apply; a non-marital cohabitant who doesn't pay rent is like a tenant at will, if not actually a tenant at will, and ejectment is the remedy rather than UD.

A tenancy at will is a tenancy (a) of indefinite duration, (b) with no monthly or other periodic rent reserved, (c) terminable at the will of either landlord or tenant, without advance notice. Najewitz v. City of Seattle, 21 Wn.2d 656, 659, 152 P.2d 722 (1944); accord, Turner v. White, 20 Wn.App. 290, 292, 579 P.2d 410 (1978); see also Washington Real Property Deskbook, Vols. 1&2, Ch. 17.3(4) (WSBA 4th ed. updated 2014) (hereinafter "Real Property Deskbook"). It is not one of the statutory types of tenancies established in Washington, but rather is found at common law. Najewitz, 21 Wn.2d at 659. It is not squarely appropriate to a nonmarital cohabitant; ordinarily a tenant at will has exclusive possession of the premises. Cf. Real Property Deskbook, Vols. 1&2, Ch. 17.4(2). Also, the leading cases addressing tenancy at will do not involve a domestic relationship, but rather an employee living on an employer's premises, where occupancy is conditioned on an at-will employment relationship. See Najewitz, Turner.
                  The Common Law of Tenant At Will Should Be Modified in a Domestic Cohabitation By Consent, Waiver, Acquiescence, Estoppel and Other Equitable Principles. While tenant at will is the closest analogous category of tenancy for a domestic cohabitant, the Court should recognize that the equities between a couple in an intimate relationship substantially alter the context compared to a tenant at will in, say, an employer-employee relationship. Equitable principles of consent, waiver, acquiescence, estoppel, ratification, and others, all are applicable, and represent a method for the Court to recognize that the expectations and understandings between cohabiting intimate partners involve greater levels of equitable cooperation and leniency with regard to strict legal rights, compared to a purely economic relationship like landlord-tenant or employer-employee.
Duties under the Residential Landlord-Tenant Act Do Not Apply To Tenants At Will. The Residential Landlord-Tenant Act, Ch. 59.18 RCW, by definition applies only to tenancies under a rental agreement. A "tenant" is only a person occupying a dwelling unit "under a rental agreement." RCW 59.18.030(27). "Rental agreement" means "all agreements which establish or modify the terms, conditions, rules, regulations, or any other provisions concerning the use and occupancy of a dwelling unit." RCW 59.18.030(25). As tenancy at will arises under the common law by mere permission and without an agreement, the RLTA therefore is not applicable. Consistent with not applying to tenancies at will, the RLTA also expressly exempts tenancies conditioned on employment, which case law states is a tenancy at will. Compare RCW 59.18.040 subsecs. (6) and (8), with Najewitz, Turner.

Sincerely,

Eric

Eric C. Nelsen
Sayre Law Offices, PLLC
1417 31st Ave South
Seattle WA 98144-3909
206-625-0092
eric at sayrelawoffices.com<mailto:eric at sayrelawoffices.com>

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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 Stephen Brandli
Sent: Tuesday, November 2, 2021 10:16 AM
To: WSBA Real Property Listserv <wsbarp at lists.wsbarppt.com<mailto:wsbarp at lists.wsbarppt.com>>
Subject: [WSBARP] Tenancy at will

Folks,

I am sure the situation I have is common, but my research is not entirely clear.  The situation is the boyfriend/girlfriend who is living at the owner's house when things were romantic, but who refuses to leave when the romantic relationship ends.

Under the common law, this is a tenancy at will.  The question is whether the landlord-tenant act applies.  My analysis is that the simple agreement that the boyfriend/girlfriend can live at the house is a "rental agreement" as that term is defined in RCW 59.18.030, and so the boyfriend/girlfriend is a "tenant" as that term is defined in the same section, and that therefore the act applies.  Does anyone disagree with this analysis?

The question is then whether RCW 59.18.650 applies.  It appears to apply to all tenancies, including a tenancy at will.  This is not a periodic tenancy.  RCW 59.18.200(1)(a) does not apply because there is no "monthly or other periodic rent reserved."  So 59.18.650(1)(b) through (d) do not apply.  Therefore, there must be a reason under RCW 59.18.650(2).  Does this make sense to everyone?

                Steve
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