[WSBARP] Writ of Assistance vs Writ of Restitution?

[Eric Nelsen]

Thanks all for the conversatoin on writs. I finally discovered some actual discussion in Am.Jur., so for everyone's edification (or to promptly delete): Writs of assistance are also called writs of possession, and they are basically the same as writs of execution and writs of restitution, all of which are designed to restore possession of property to a plaintiff. The difference, as Steve Whitehouse said, is purely historical and reflects the past distinction between chancery courts and courts of law. Writs of assistance/possession were issued in equity courts, writs of execution and writs of restitution in courts of law. Since Washington's Superior Court is a unified court of law and equity, it makes no never mind. Though in the LL/T context, it's definitely best to use the term writ of restitution since that's how the statutes read.

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>

From: wsbarp-bounces at lists.wsbarppt.com <wsbarp-bounces at lists.wsbarppt.com> On Behalf Of Patrick McDonald
Sent: Wednesday, December 20, 2023 7:14 AM
To: WSBA Real Property Listserv <wsbarp at lists.wsbarppt.com>
Subject: Re: [WSBARP] Writ of Assistance vs Writ of Restitution?

My experience has been consistent with what Rob is saying. Writs of assistance issue following a judicial foreclosure or some other action to gain possession of real property with the exception of unlawful detainers, in which writs of restitution are issued. The content of both writs seem to be substantially similar.

Patrick McDonald
­­­­­­­­­­­___________________________
Pody & McDonald, PLLC
1000 Second Avenue, Ste. 1605
Seattle, WA 98104
T: 206-467-1559

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 Rod Harmon
Sent: Tuesday, December 19, 2023 11:01 PM
To: WSBA Real Property Listserv <wsbarp at lists.wsbarppt.com<mailto:wsbarp at lists.wsbarppt.com>>
Subject: [WSBARP] Writ of Assistance vs Writ of Restitution?

I meant to include the following in my below post:

Washington courts have long used writs of assistance to place purchasers at judicial sales in possession of the property they have purchased when a prior occupant refuses to vacate.  Marjorie Dick Rombauer, 27 Washington Practice, Creditors' Remedies § 3.16 (2021); Debenture Corp. v. Warren, 9 Wn. 312, 314-15 (1894) (reversing denial of writ of assistance); Hagerman v. Heltzel, 21 Wn. 444, 445-46 (1899) (affirming grant of writ of assistance). Washington courts issue writs of assistance when they have jurisdiction over the purchaser, the party in possession, and the property at issue. Security Savings and Loan Assoc. v. Busch, 84 Wn.2d 52, 54 (1974) (affirming grant of writ of assistance). A writ of assistance is the appropriate process to issue from a court to place a execution sale purchaser in possession of the property as against parties who are bound by the judgment and who refuse to surrender possession. Terrell v. Allison, 88 U.S. 289, 291 (1874)). "It would be destructive of the due administration of justice if any court having custody of the res and authority to sell it should be without jurisdiction to put the purchaser in possession."  In re Benson-Beckmann Paint Co., 36 F.2d 580, 580 (5th Cir. 1929).

Rod Harmon

RODNEY T. HARMON
       Attorney at Law
         P.O. Box 1066
      Bothell, WA   98041
     Tel:   (425) 402-7800
     Fax:  (425) 458-9096
    www.rodharmon.com<http://www.rodharmon.com/>
   rodharmon at msn.com<mailto:rodharmon at msn.com>

From: Rod Harmon
Sent: Tuesday, December 19, 2023 10:56 PM
To: WSBA Real Property Listserv <wsbarp at lists.wsbarppt.com<mailto:wsbarp at lists.wsbarppt.com>>
Subject: RE: Writ of Assistance vs Writ of Restitution?

I have always used a writ of assistance to gain possession after the expiration of the redemption period after a judicial execution or foreclosure sale, and a writ of restitution in a landlord - tenant situation..

Rod Harmon

RODNEY T. HARMON
       Attorney at Law
         P.O. Box 1066
      Bothell, WA   98041
     Tel:   (425) 402-7800
     Fax:  (425) 458-9096
    www.rodharmon.com<http://www.rodharmon.com/>
   rodharmon at msn.com<mailto:rodharmon at msn.com>

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 Eric Nelsen
Sent: Tuesday, December 19, 2023 4:06 PM
To: WSBA Real Property Listserv <wsbarp at lists.wsbarppt.com<mailto:wsbarp at lists.wsbarppt.com>>
Subject: [WSBARP] Writ of Assistance vs Writ of Restitution?

Is there a legal or practical difference between a "writ of assistance" to recover possession of real property, and a "writ of restitution" to recover possession of real property? The tenancy statutes refer to writ of restitution, many old cases refer to writ of assistance, and I've seen both in use but it's not clear to me if the sheriff cares which one is used.

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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