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    Evictions: Serving Residential Tenants

    As a landlord, before you can evict a tenant, you must follow processes and procedures with exactness. That includes serving tenants with notices and court paperwork.

    Serving Notices

    RCW 59.18.030 outlines the reasons a tenant can be evicted. In virtually all situations, that statute requires that you serve a notice in advance before you can begin the court process, such as a notice to pay rent or vacate. To serve one of these notices, you must serve a copy of the notice to each tenant by either personally handing the notice to the tenant, or by posting it in a conspicuous place on the property and mailing the notice by certified mail, return receipt requested.

    Serving the Eviction Summons and Complaint

    If the tenant does not comply with the notice or vacate the property, then the next step in the eviction process requires you have someone serve the tenant with an eviction summons and a complaint. The general rule is that you serve the summons and complaint just like any other legal action, which means that it must be personally served to the tenant or an occupant that is “of suitable age and discretion” (which usually means an adult or older child).

    But what if the tenant is evading service—hiding and refusing to answer the door? Assuming you’ve attempted service with diligence, RCW 59.18.055 allows you to get a court order allowing you to serve the summons and complaint by posting at the property and mailing by both certified and regular mail. The catch is that you have to make sure that the deadline for the tenant to answer is at least nine (9) days after the date of posting.

    It cannot be emphasized enough that the eviction process requires you to follow procedures with precision, where even a slight misstep may require you to start all or party of the process over again. There are various strategies to the eviction process, and seeking the advice of an attorney can be very helpful in approaching these situations.

    Featured on Lexis Nexis: The Importance of Fences in Adverse Possession

    Dear Fellow Readers,

    We recently published an article on Lexis Nexis about The Importance of Fences in Adverse Possession:

    It is often said that tall fences make good neighbors. In the world of adverse possession, the presence of a fence can often be the difference between winning or losing.

    You may view the full article by clicking here:

    http://www.lexisnexis.com/legalnewsroom/real-estate/b/real-estate-law-blog/archive/2015/10/13/the-importance-of-fences-in-adverse-possession.aspx

    Thank you,

    Dickson Law Group

    Featured on Lexis Nexis: Fixing the Location of a Floating Easement

    Dear Fellow Readers,

    We recently published on article on Lexis Nexis about Fixing the Location of a Floating Easement:

    An express easement is the written form of a nonpossessory right to use another party’s real property. (This is unique compared to prescriptive, necessary, and implied easements which form by the contextual use of property or by the relative ownership positions of the property owners.) For express easements to be valid they typically must describe the portion of the burdened property with reasonable certainty. For instance, it is typical to see an easement for ingress and egress to reserve the “northern 10 feet of Lot X for a driveway for ingress/egress for Lot Y.”

    You may view the full article by clicking here:

    http://www.lexisnexis.com/legalnewsroom/real-estate/b/real-estate-law-blog/archive/2015/10/09/fixing-the-location-of-a-floating-easement.aspx

    Thank you,

    Dickson Law Group

    Featured on Lexis Nexis: Legal Description Specificity and the Statute of Frauds

    Dear Fellow Readers,

    We recently published on article on Lexis Nexis about the Legal Description Specificity and the Statute of Frauds in real estate:

    The statute of fraud and deed rules work in concert. Typically, these laws mandate that certain deeds, leases, agreements, and other property transfers, be written and contain specific components. Statute of frauds issues most common touch upon real property transfers. In virtually every jurisdiction in the United States, the law requires that for a transfer of real property to be valid, it must be done in writing and contain the signatures of the granting/transferring parties.

    You may view the full article by clicking here:

    http://www.lexisnexis.com/legalnewsroom/real-estate/b/real-estate-law-blog/archive/2015/10/08/legal-description-specificity-statute-of-frauds.aspx

    Thank you,

    Dickson Law Group

    How Do I Get a Land Use Variance?

    Use Land Variance in Seattle or TacomaCertain geographical areas and buildings can be reserved by the local government for specific purposes. For example, zoning laws set out which properties must be used for residential purposes and which properties must be used for commercial purposes. Laws may also become more specific, such as dictating maximum height of buildings, the types of external structures allowed, and more. Such laws are often referred to as the Land Use Code because they, simply put, dictate how the land in question may legally be used.

    However, situations do arise when you wish to gain special permission from the government to go against the zoning or land use regulations. In such cases, you would have to apply for a land use variance [1] from the correct city zoning or planning department. [2] A variance is not a change in the law itself, but is a special exception for a certain property owner. You must follow specific steps in order to apply for an be grated such a variance.

    First, you must generally show the following:

    • The variance would not cause harm to neighboring properties or present public health or safety risks
    • You would suffer undue hardship if you were forced to abide by the law
    • The variance will still uphold the purpose of Land Use Code
    • The variance is the minimum necessary relief for you

    You must also provide a detailed description of your proposal, documentation to support your project, and more. The government agency will review all variance applications and decide to grant or deny them on a case-by-case basis.

    Contact a Seattle and Tacoma real estate law firm today to schedule a consultation

    Limitations on how you may use your property can have a significant impact on your quality of life or ability to operate your business. Fortunately, in many cases, land owners and leaseholders can obtain land use variances that provide individual exceptions to Seattle’s myriad zoning regulations. The process of obtaining a variance can be a complicated, often requiring the presentation of substantial evidence. For a free 15-minute consultation with one of our experienced Seattle & Tacoma real estate lawyers, call our office today at (206) 621-1110 or (253) 572-1000 for assistance.

    Our Offices

    Dickson Law Group PS
    1201 Pacific Avenue Suite 2050
    Tacoma, WA 98402

    Dickson Law Group PS
    701 Fifth Avenue Suite 4201
    Seattle, WA 98104

    References:

    [1] http://en.wikipedia.org/wiki/Variance_%28land_use%29
    [2] http://www.seattle.gov/dpd/default.htm

    What are the tax implications if you go through a foreclosure, short sale, or deed-in-lieu? (Hint: potentially not good)

    A question recently arose when dealing with a client facing the loss of a distressed property: “how am I taxed if I should allow the property to go through the foreclosure process? Am I taxed on the balance of the loan that is not collected as a result of the foreclosure.” The short answer is that yes, you’re probably exposed to some tax liability. (This also goes for short sales and deeds-in-lieu of foreclosure when the bank elects to waive whatever deficiency it could have obtained.)

    Typically, when debt is cancelled by a creditor, it results in ordinary income to the debtor. For instance, if you owe someone $50,000 and they simply forgive that debt, then you’ll be responsible for income of $50,000 for the year that the forgiveness took place. There are other tax considerations that offset this impact potentially, but the general rule applies.

    However, there are nuances in the tax code when it comes to foreclosure. According to the IRS, if your loan is a non-recourse loan (meaning that the lender’s ONLY remedy in the case of default is to foreclose/repossess the property), then any deficiency above and beyond that amount is not considered taxable. So, is Washington a “non-recourse” state? It is and it isn’t – but for tax purposes, it does not matter. According to RCW 61.24.100(1), a bank cannot obtain a judgment for the deficiency after a typical non-judicial foreclosure. One would assume that this means that Washington law supports the idea that its home loans are non-recourse. But it isn’t that simple.

    Washington law affords the lender two pathways to foreclose on property and collect against a homeowner in the event of a breach: a non-judicial foreclosure (where the bank forecloses through the Deed of Trust law, which is by far the most common), or judicial foreclosure (where the bank actually sues the homeowner and compels sale of the property through a Sheriff’s sale). It is this option between the two methods of foreclosure which is key to why homeowners are likely taxed for the deficiency in the event of a foreclosure.

    The IRS’s guide described it thus:

    A non-recourse loan is a loan for which the lender’s only remedy in case of default is to repossess the property being financed or used as collateral.That is, the lender cannot pursue you personally in case of default. Forgiveness of a non-recourse loan resulting from a foreclosure does not result in cancellation of debt income.

    So, while there is a temptation to think that if a bank cancels whatever remaining debt that results from a judicial foreclosure (short sale, deed-in-lieu), one escapes having to report the cancellation as income, it is not the case. Because the banks have the option to pursue either a judicial or non-judicial foreclosure at the time the agreement was entered into, it is likely that the homeowner will be subject to taxation of whatever deficiency was waived or cancelled.

    (Please note that this firm is not an accounting firm, nor does it specialize in tax law. The US tax code is complex and the debt cancellation issue is one that is impacted by many other factors which are not discussed here. If you believe you may be facing such an issue, our advice would be to consult with a tax attorney or certified public accountant for clarification.)

    Deeds in Washington

    A deed is legal document that conveys in interest in real property from one person to another. Although there are many similarities, each state has different rules and requirements regarding deeds. Don’t rely on the description of possible deeds for another state if you want to convey property in Washington. By the same token, the information below will not be helpful if you’ve got property outside the Evergreen State.

    The basic requirements for a deed in Washington are simple: it must be in writing, contain a legal description of the property, be signed by the grantor, and the grantor’s signature must be notarized. RCW 64.04.020. The legal description is a specific way of describing the property and distinguishing it from any other parcel of property. Washington law is very strict about the requirement of a legal description. An address is not sufficient, nor is a tax parcel number. To be enforceable, a deed must contain either a “metes and bounds” description (a description of the property prepared by a surveyor) or a “lot, block, and plat” description (a description of the property referring to a prior plat recorded in the county records). See Martin v. Seigel, 35 Wn.2d 223, 212 P.2d 107 (1950).

    Although many types of deeds are possible, most conveyances in Washington are done with one of three deeds specified by statute:

    Statutory Warranty Deed (or just Warranty Deed)
    Under RCW 64.04.030, a statutory warranty deed conveys the property together with certain specified covenants from the grantor to the recipient. By using a this deed, the grantor promises the transferee (1) that he or she is the owner of the property and has the right to convey it, (2) that no one else is possessing the property, (3) that there are no encumbrances against the property, (4) that no one with a better claim to the property will interfere with the transferee’s rights, and (5) to defend certain claims regarding title to the property. Warranty deeds are commonly used in purchase transactions where the buyer wants assurances as to the title of the property.

    Bargain and Sale Deed
    A bargain and sale deed in Washington would be called a special warranty deed in many other states. By using a bargain and sale deed under RCW 64.04.040, the grantor makes some promises regarding title, but the covenants only relate to the period that the grantor owned the property. Thus, the grantor promises (1) that he or she is the owner of the property, (2) that there are no encumbrances against the property during the time the grantor owned it, and (3) that the grantor will not interfere with the transferee’s rights to the property. Bargain and sale deeds are commonly used by banks who have acquired property after foreclosure. A bargain and sale deed could also be used in other situations where the grantor is unwilling to make the broad covenants that go along with a warranty deed.

    Quitclaim Deed
    A quitclaim deed conveys title with no covenants at all. RCW 64.04.050. The grantor of a quitclaim deed does not even promise that he or she owns the property described in the deed or that he or she has the right to convey it. Quitclaim deeds are used for many purposes, including gifts of property, conveyances to correct prior deeds, and conveyances to settle a legal dispute. Quitclaim deeds are also used simply to confirm that the grantor does not claim any interest in the described property.

    Once you have prepared the deed, it is always best to have it recorded in the county records. Recording a deed puts the rest of the world on notice that the transaction has occurred. In the event of a dispute between two grantees, Washington’s recording statute gives priority to the party who recorded first. Any conveyances of an interest in real property is potentially taxable in Washington, so in order to record a deed, the parties must also prepare and sign a real estate excise tax affidavit stating the purchase price or the grounds for any claimed exemption.

    If you have additional questions about which deed is right for your situation, you should consult with an attorney licensed to practice law in the jurisdiction where the property is located.

    Jury demands for civil lawsuits

    A question arose from one of my law students regarding jury demands in a civil litigation setting. (In criminal trials, juries must be unanimous in their pronouncements of “guilty.“) In a civil setting, it is different. A jury may consist of six or 12 individuals and does not need to be unanimous in issuing a verdict. Rather, they must have a significant majority in order to issue a verdict: five out of six, or 10 out of 12.  RCW 4.44.380.

    Civil Rule 38 provides that if a jury demand does not specify the number of injuries, it will be a six-member jury. Thus, you must specifically state that you would like 12 members of the jury in your jury demand, otherwise the default number is six.  Civil Rule 48 also allows for stipulation regarding a jury, which allows a certain degree of flexibility between the parties in order to arrange their own jury preference:

    The parties may stipulate that the jury shall consist of any number less than 12 or that a verdict or a filing of a stated majority of the jurors shall be taken as the verdict or finding of the jury.

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