[WSBARP] 36 month lease - no notary

Wed Nov 3 21:11:53 PDT 2021

I have this issue in a current case.  My research concludes as follows:

Under the statute of frauds, RCW 64.04.020, “an unacknowledged lease for more than one year is void so far as the duration of the lease is concerned, and shall be construed only as a tenancy from month to month or from period to period on which rent is payable.”  National Laundry Co. v. Mayer, 79 Wn. 212, 214-15 (1914); Omak Realty Investment Co. v. Dewey, 129 Wn. 385, 388-89 (1924); Richards v. Redelsheimer, 36 Wn. 325 (1904).  RCW 64.04.020 requires leases to be in deed form, i.e. they must include an acknowledgement.  Another statute, RCW 59.04.020, creates an exception to this rule, but only for leases of a year or less.
Nevertheless, courts have the power to enforce a lease that does not satisfy the statute of frauds if equity and justice so require. Miller v. McCamish, 78 Wn.2d 821 (1971).  The doctrine by which an unacknowledged lease is taken out of the statute of frauds is a form of equitable estoppel.  Tiegs v. Watts, 135 Wn.2d 1, 15-16 (1998). “We have recognized as enforceable leases ones that do not fully comply with statutory requisites when under the facts it would be inequitable for the challenging parties to assert invalidity of their own agreements.” Tiegs v. Watts, 135 Wash. 2d 1, 15 (1998).  “This doctrine prevents a party from asserting the invalidity of a contract where the other party has acted in conformity with the contract and thus placed himself in a position where it would be intolerable in equity to deny its enforcement.” Stevenson v. Parker, 25 Wn.App. 639, 643-44 (1980); Miller v. McCamish, 78 Wn.2d 821, 827 (1971).  The party asserting equitable estoppel must prove it by “‘very clear and cogent evidence.’“ Proctor v. Huntington, 146 Wn.App. 836, 845 (2008) (quoting Sorenson v. Pyeatt, 158 Wn. 2d 523, 539 (2006)), review granted, 165 Wn.2d 1041 (2009); The burden is on the lessee to prove the material terms of an unacknowledged lease by clear and unequivocal evidence.  Ben Holt Indus., Inc. v. Milne, 36 Wn. App. 468, 475 (1984).

Rod Harmon

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From: wsbarp-bounces at lists.wsbarppt.com On Behalf Of Bryce Dille
Sent: Wednesday, November 3, 2021 4:46 PM
To: WSBA Real Property Listserv <wsbarp at lists.wsbarppt.com>
Subject: Re: [WSBARP] 36 month lease - no notary

It’s true at least for more than one year of real property must have the landlord signature notarized otherwise it is a month-to-month tenancy unless you can establish some sort of part performance by the tenant or a longer term lease in which the tenant has paid rent for a period of time or made improvements to the property and reliance on the lease but in your case if no rent has been paid and no improvements have been made then I believe the court would holdThat all there is is a month-to-month tenancy
Bryce H. Dille
Dille Law, PLLC
Office: 360-350-0270
Cell: 253-579-5561

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On Nov 3, 2021, at 2:48 PM, Kaitlyn Jackson <kaitlyn at dimensionlaw.com<mailto:kaitlyn at dimensionlaw.com>> wrote:

No rent paid = no 'partial performance' argument by the tenant. However, I think the argument is that it is for up to 1 year without notarization - so that might need to be honored.

On Wed, Nov 3, 2021 at 1:52 PM Josh Grant <jgrant at accima.com<mailto:jgrant at accima.com>> wrote:
There was a recent chain on this put I can’t find it.  I have a client who is a landlord on a 36 month residential  lease.  I was just told by another attorney that because of the lack of notary it is a month to month.  It has been 7 or 8 months since the tenant took possession.  No rent has been paid to date.
thanks

Joshua F. Grant
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