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Evictions - A Very Tough Subject!

May you never have to evict a tenant! That's the wish of any landlord, in addition to not being sued for something over which you have little or no control. Unfortunately, in the worst case, you may be forced to evict a tenant for any number of reasons. Eviction is not an easy process, particularly if you are dealing with a tenant who is experienced at circumventing the eviction process. If you have any doubts or if you have not done this before, you should consult a qualified real estate attorney.

Before you begin an eviction, you should be certain that your property complies with the City of Seattle's Housing and Building Maintenance Code. If you are dealing with a difficult tenant, you can be certain that their first action will be to report you to City for non-compliance for one or more of the provisions set forth in the City of Seattle's Housing and Maintenance Code.

JUST CAUSE EVICTIONS

In Seattle, as a landlord, you cannot evict a tenant who is under a lease for any reason. Under the State of Washington's Residential Landlord-Tenant Act, (RCW 59.18), "it shall be unlawful for the landlord to remove or exclude from the premises the tenant thereof except under a court order so authorizing." Moreover, a landlord must prove that "just cause" exists to evict a tenant. The reasons listed, only the reasons listed, at SMC 22.206.160(C) constitute "just cause." The most common just causes for eviction, however, are the following: (i) failure to pay rent, (ii) failure to comply with one or more terms of the rental agreement, or (iii) waste or nuisance by the tenant (including a drug-related activity nuisance).

THE FIRST STEP - NOTICE

As with any legal proceeding, the first step involves some form of Notice to the tenant. The formalities are important and the process must be strictly followed or the court will rule against the landlord. The process for perfecting Notice is set forth in detail in RCW 59.12.040, but, at a high level, there are three ways to serve Notice. The first is by personal service, which means you (the landlord) or someone who is over the age of 18 must personally and the Notice to the tenant or to an adult who is living in the unit. The second is by conspicuously posting and mailing, which means that you must post the notice on the door of the tenant's unit and then send the tenant a copy by certified mail. Some attorneys recommend that you that take a picture of the door with the notice posted and keep that picture with your records. The third is with regard to subtenants and the regulations require you to do both the personal service and the conspicuous posting and mailing. Once you have served Notice, you must file a sworn declaration to that effect and your sworn declaration along with the complaint must be filed with the court. You should consult with a qualified real estate attorney if you have not done this before, or if you have any questions. The courts are very strict about strict adherence to these procedures, which means you could lose your case not on the merits, but because you have failed to follow the procedures to the letter.

THE SECOND STEP - THE SUMMONS AND THE COMPLAINT

The next step is to serve the tenant with something called a summons and complaint, which is the formal process required to initiate a lawsuit, By the way, the formal name of the lawsuit to evict a tenant is called an Unlawful Detainer Action. The summons and complaint is typically served on the tenant by an individual whom you hire called the process server. As the plaintiff in the Unlawful Detainer Action, you may not serve the summons and complaint yourself. Process servers specialize in delivering summons and complaints. Your attorney can advise you on how best to retain a process server. The tenant must answer your summons and complaint by the given deadline, which must be at least seven days from their receipt of the summons and complaint.

THE THIRD STEP - THE HEARING

The next step is an event called the Show Cause hearing. Although a date for Show Cause need not be served with the summons and complaint, it is generally advisable to serve all the documents at the same time. If you do not provide the tenant with a date for a Show Cause hearing and the tenant formally or informally responds to your complaint, then you must initiate a Show Cause hearing to continue the eviction process, which delays the process. Better to provide the Show Cause hearing date up-front.

At the Show Cause hearing, the judge will review evidence, including testimony, from both sides. Here is where your records, documents and other admissible evidence, if properly recorded and documented, will prove to be invaluable. You must put emotion aside and you must provide a compelling, rational and factually based story to the judge. The Show Cause hearing is short though, typically fifteen minutes or less, so you have to be concise, you have to be organized, and you have to make your case in a compelling fashion. Do not engage in theatrics. The landlord or the property manager must attend the Show Cause hearing. There are three possible outcomes from the Show Cause hearing. The first outcome is dismissal of the case because the court finds that you are not entitled to possession. This usually occurs because you, the landlord, have made some sort of procedural error.

The second is that the case gets set for trial because the issues are so complicated that they cannot be resolved at a fifteen minute hearing. You want to try to avoid this second scenario, particularly if you a first-time property owner. The costs of a full trial can be overwhelming for a small property owner and the time, not to mention the emotional toll, can be significant. As unpalatable as this sounds, it may make business sense to pay the tenant to move out. For instance, you can offer to pay the tenant's moving expenses if they move out within seven days (or some reasonable period of time).

The third outcome (and the preferred outcome) is that the court rules in your favor and an eviction order is issued along with the judgment.

THE FOURTH STEP - THE SHERIFF

Once you have the writ of restitution, which is the document issued by the court, the sheriff will serve the writ on the tenant. The tenant will then have three business days to vacate. If the tenant does not vacate, you must contact the sheriff's department and arrange for a physical eviction. For your information, the sheriff will not move any of the tenant's personal belongings. Their job is to enforce the writ by way of eviction, not to move furniture or other personal belongings. You must arrange some other means to have the tenant's belongings removed.

The most commonly asked question about Evictions - if my tenants do not pay rent on a timely basis, can I change the locks when they are not home and confiscate their personal belongings?

This type of remedy commonly known as a "self-help" remedy was quite common a century ago when the property owner was king and had largely unfettered discretion with regard to the disposition of their property and tenants. That was, however, a century ago. Self-help remedies are, per se, illegal and the laws prohibit lease agreements that contain provisions waiving a tenant's rights in this regard. Not only is changing locks, but terminating utilities or taking possession of a tenant's personal property for non-payment of rent are also illegal.