Washington Real Estate Law Blog : Washington Real Estate Lawyer & Attorney : Dickson Steinacker Law Firm : WA HOA, Building & Zoning Updates

Under RCW 59.18.310(b) the landlord may immediately enter and take possession of any property of the tenant found on the premises and may store it in a reasonably secure place if the tenant defaults in rent and reasonably indicates the intention not to resume tenancy.   The landlord must make reasonable efforts to provide the tenant with notice containing the name and address of the landlord and the place where the property is stored, and informing the tenant that a sale or disposition of the property shall take place pursuant to RCW 59.18.310, and the date of the sale or disposal, and the tenants right to have the property returned prior to the sale under RCW 59.18.230.  The landlord may satisfy the notice obligations by mailing it first class, postage pre-paid to the tenant’s last known address and to any other address provided by the tenant. 

The landlord must return the property to the tenant after the tenant has paid the actual or reasonable drayage and storage costs, whichever is less, if the tenant makes a written request for the return of the property before the landlord has sold or disposed of the property.

After 45 days from the date of the notice the landlord may sell or dispose of the personal property and apply any income from the sale against moneys due, including actual or reasonable costs of drayage and storage, whichever is less.

If the property is less valued at less than $250 the landlord may sell or dispose of the property after 7 days from the date of the notice of sale or disposal is mailed or personally delivered, provided the landlord makes reasonable efforts to notify the tenant.

If a writ of restitution has been executed by the sheriff, RCW 59.18.312 applies and the landlord’s rights differ slightly.  The landlord “shall” enter and take possession of tenant property found on the premises, and may store the property in a reasonably secure place, with the option of selling or disposing of the property.  The landlord must store the property if the tenant serves him with a written request to do so within 3 days after service of the writ.  Without such service the landlord may elect to store the property.  If the tenant objects to the storage the property must be deposited upon the nearest public property and may not be stored by the landlord.

Before the landlord is entitled to a sale of the property valued at over $250 he must give notice to the tenant via first-class mail or personal delivery.  For property valued at $250 or less the landlord may sell or dispose of the property after seven days from the date the notice is mailed or delivered to the tenant.  Any income generated by the sale may be applied against any moneys due the landlord for drayage and storage of the property.  

 Photo Credit: Bill Longshaw, at Freedigitalphotos.net

• Email This
• Print
• Comments
• Trackbacks
• Share Link

When a party forecloses on residential or commercial property they may have options on how to do so. However, when the property being foreclosed on is being used for agricultural purposes Washington law only permits judicial foreclosure. RCW 61.24.030(1). Real property is considered “used for agricultural purposes” if it is used in a manner that produces crops, livestock or aquatic goods. RCW 61.24.030(2). Despite these fairly strict protections for agricultural land, lenders may have alternatives if they draft a deed of trust.

In a recent but unpublished decision a state appellate court upheld a party waiving the right to a judicial foreclosure based solely on the fact that the land was being used for agricultural purposes. Schroeder v. Haberthur, unpublished 2011 WL 4599661 (Oct. 6, 2011). Additionally the parties to real estate transaction may stipulate in a deed of trust that the land is not and will not be used for agricultural purposes. The grantee of the deed of trust may require the grantor to warrant in the deed of trust that the land will not be used for agricultural purposes without the consent of the grantee. Id. Absent such agreements however, deeds of trust and power of sale foreclosure are unavailable for agricultural land and foreclosure must occur judicially.

Photo Credit: federico stevanin

• Email This
• Print
• Comments
• Trackbacks
• Share Link

Imagine this: a loved one has died and you are left to be the executor/personal representative of the estate.  This person owned real property (a house or condo perhaps).  Now, an individual's estranged daughter moves in and starts living in the home without permission from the estate.  What obligations or rights do you have as the executor/personal representative to the real property? 

Pursuant to RCW 11.48.020 (full text below), the personal representative has the right to possess and manage real property of the estate during probate.  At common law, real property of the decedent was treated differently from personal property, as it vested in the heirs immediately upon the death of the owner.  So, the personal representative had nothing to do with the real property, including rents or profits.  The majority of states have changed the common law, like Washington, to allow the personal representative to have the immediate right to possess and manage real property, and to receive rents and profits of the estate.

Since in Washington a personal representative has the right to possess and manage real property, the biggest issue will likely be whether the home at issue is the property of the estate of the deceased.  Though it might not be applicable in the unlawful detainer action, if the personal representative is not collecting rent from the tenant, the failure to do so is arguably a breach of their fiduciary duties, as it could impact creditors’ claims in the probate action (and thus harm Frisbie, if ultimately she is found to only be a creditor). See e.g. City of Bellevue v. Cashier’s Check for $51,000 & $1,130.00 in US Currency, 70 Wash.App. 697, 855 P.2d 330 (1993) (administrator has a narrow ownership interest in estate real property for the limited purpose of satisfying the legitimate claims of creditors of the estate.).  As a general rule, an executor is accountable for his use of the deceased's real property. In re Estate of Boston, 80 Wash.2d 70, 72, 491 P.2d 1033 (1971).

Interestingly, even the executor may utilize the house, however, where a person's only right to possession of the property arises from his status as executor, if he chooses to use the house for his own benefit he must pay rent.  Id.; citing In re Estate of Hickman, 41 Wash.2d 519, 526-27, 250 P.2d 524 (1952).  RCW 11.04.250 also clearly indicates that an heir’s interest in the estate is limited by the claims of creditors, whose interests are represented by the administrator.  Until an estate is closed, the heirs may not treat estate real property as their own.  In re Estate of Peterson, 12 Wash.2d 686, 734, 123 P.2d 733 (1942)

• Email This
• Print
• Comments
• Trackbacks
• Share Link

One of my favorite websites I visit to keep a pulse on the Puget Sound residential real estate market is the Seattlebubbleblog. Its founder and editor is Seattle resident named Timothy Ellis who goes by the blog name “The Tim.” http://seattlebubble.com/blog/ 

The blog has daily posts which include some great graphs, charts and analysis of the Puget Sound real estate market.  What makes the posters on the Seattle Bubble Blog unique is their credibility.  They were one of a few vocal media sources in Washington State that consistently and loudly predicted the current real estate crash before it happened.  In addition to good posts and analysis by “The Tim,” the comment section provides a lively discussion about Puget Sound real estate issues.  *Be aware homeowner: many of the comments made are from bloggers who predict continued steep declines in the Puget Sound real estate - so the blog isn’t for the faint of heart. 

The effect of local and federal laws as they relate to the residential real estate market in the Puget Sound area are also frequently discussed by the blog posters and authors with links to news articles and additional resources.

• Email This
• Print
• Comments
• Trackbacks
• Share Link

For someone to adversely possess someone else's property, the law requires the possession to have lasted continuously for a minimum of 10 years (or 7 years under color of title -- usually meaning that the individual was paying taxes on the adversely possessed property).  That is logical when the property is readily identifiable between two neighboring property owners.  But does that apply when the property owner is not actually occupying the property?  Can a non-owner, like a relative, renter, or friend occupy the property and preserve the 10-year requirement?  

Wendy Koch, a fellow associate at Dickson Steinacker, provided the following authority regarding just that issue: 

"Defendants cite no authority in support of their contention that Plaintiff must personally testify in an adverse possession case, especially where he adversely possesses through his wife and children which inures to his benefit.    Instead, it is well settled law that an adverse possessor may possess through his tenant (O’Brien v. Schultz, 45 Wn.2d 769, 278 P.2d 322 (1954); Foote v. Kearney, 157 Wash. 681, 290 P. 226 (1930); Flint v. Long, 12 Wash. 342, 41 P. 49 (1895)), and may possess through his contract purchaser (McAuliff v. Parker, 10 Wash. 141, 38 P. 744 (1894)).  By analogy then, he may possess through his family members." 

• Email This
• Print
• Comments
• Trackbacks
• Share Link