November 2012 Bar Bulletin
 
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November 2012 Bar Bulletin

Recovering Possession of Real Property

By Athan E. Tramountanas

 

Although the old saying goes, "You can't take it with you," you certainly want to enjoy it when you are here. You especially want to enjoy the beneficial use of your real property.

The subject of this article is how to recover your real property when it is under another's possession. This article will focus on the two main methods of recovering real property: unlawful detainer and ejectment.

Unlawful Detainer

Unlawful detainer is a means for an owner of leased property to recover possession of the property when a tenant fails to vacate. Washington's unlawful detainer statutes, located in chapter 59.12 RCW, provide landlords with a speedy, efficient action to evict tenants for breaches of the lease. In addition to chapter 59.12, the additional overlay of the Residential Landlord-Tenant Act (RLTA), located in chapter 59.18 RCW, applies to leased residential property.

Unlawful detainer has an advantage over other means of recovering property because it is a narrow action, limited only to determining issues of possession of real property and incidentally related issues such as rent.1 Because of the court's narrow jurisdiction, the matters are deemed summary proceedings and heard by courts on an expedited basis.2

Unlawful detainer actions are only proper under certain circumstances, set forth in RCW 59.12.030. In most cases, a landlord must serve its tenant with a notice as a predicate to instituting an unlawful detainer action.

When a landlord wants to terminate a month-to-month tenancy, it must serve a notice of termination at least 20 days before the end of a month.3 Where the tenant is in violation of terms of the lease, a landlord can give a shorter notice, but must give the tenant an opportunity to cure the breach or to vacate the premises. When a tenant has failed to pay rent, the landlord must give the tenant the opportunity to pay the outstanding amounts or vacate the premises within three days.4 In most other cases of breach of lease, the landlord must give the tenant 10 days to cure the breach or vacate the premises.5

Traps for the unwary lie in the means of providing the section 59.12.030 notices. The notice must be served by one of the following methods: (1) if the tenant is on the premises at the time, by personal service; (2) if the tenant is not on the premises at the time, by leaving a copy with "some person of suitable age and discretion," and sending a copy through the mail to the tenant; or (3) if no one is at the premises, by posting the notice "in a conspicuous place on the premises," and sending a copy through the mail to the tenant.6 Failure to provide proper service will prevent the court from having jurisdiction over the case and cause the case to be dismissed.7


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