Washington Property Law

Eviction Notice Forms

WaPropLaw Staff — Thu, 18 Jan 2024 07:26:00 +0000

Coming soon

The post Eviction Notice Forms first appeared on Washington Property Law.

Urban Tree Canopies: Good, but not a miracle cure

WaPropLaw Staff — Wed, 17 Jan 2024 04:23:18 +0000

There’s a modern trend towards encouraging urban tree canopies consisting of mature shade trees. Increasing the tree canopy isn’t necessarily a bad idea. There are multiple documented benefits of urban tree canopies:

Release of water vapor into the atmosphere which cools surrounding areas, mitigating the urban heat island effect
Interception of rainfall and reduction of storm water runoff (and thus, reducing the costs related to infrastructure required to manage it)
Energy savings and reduced greenhouse gas emissions due to shade provided

However, there are other supposed benefits of urban tree canopies that are poorly supported by the data:

Younger trees sequester carbon faster than mature trees

One of the big arguments for mature urban tree canopies is that they sequester carbon. However, mature trees are generally less efficient at carbon sequestration than younger trees ages 0-40. Below is a graph reflecting that stands of young trees sequester more carbon than older trees (bar graph shows declining sequestration):

The study concludes as follows:

In all regions except Rocky Mountain South, [carbon] accumulation rates are highest in the younger age classes and decline with age, with older age classes in several western regions showing negative rates.

It’s important to note that these studies are about the carbon sequestration of entire tree stands not individual trees. The higher efficiency of younger tree stands may have to do with the canopy gaps that become prevalent in older stands. In other words, there’s strength in numbers—the average mature tree sequesters more carbon than the average young tree, but more young trees fit in the same space so they’re more efficient as a group.

The takeaway is this: If our main goal is to clean up the air, water, and soil of our cities, then then we would be better off with dense stands of young trees rather than with looser stands of mature trees.

Mature tree canopies probably don’t increase property values

It has been widely reported that mature trees increase property values. Many of these claims seem to be based on a 2010 article, which found that street trees increased property values in Portland by an average of $8,870 (more like $12,500 in today’s money).

However, this study offers several counterintuitive results that nobody talks about (probably because nobody actually reads the article).

Bigger street trees don’t add more value than smaller street trees: “the benefits to the house the tree fronts do not increase with crown area.”
Trees on a lot don’t increase sale price: “If street trees increase sales price, why do not trees on the lot?”

Based on these two conclusions, we’ve learned some important nuances. First, there’s no obvious benefit to mature tree canopies in terms of adding value (young street trees are just as good). Second, there’s no value benefit to trees on the lot—only street trees add value. Thus, it’s not very accurate to conclude from this article that mature tree canopies add value. A more accurate statement is that street trees add value, regardless of maturity.

It’s slightly off topic, but another interesting conclusion from the article was that municipal governments should invest in street tree planting:

Our results suggest that to prevent under-investment in street trees, which provide benefits to neighborhoods, the city may find it necessary to bear a larger proportion of the costs.

We think this is a sensible conclusion.

Mature tree canopies probably don’t help with most health and social problems

It has been widely reported that trees have various, almost mystical, health and social benefits. These benefits supposedly include:

Reduction in tree pollen and VOCs
Reduction in UV radiation
Increased heat and thermal comfort
Reductions in crime
Increase in cognitive and attention restoration
Increase in health and mood, reduction in anxiety and depression
Reduction in stress
Better clinical outcomes
Better birth outcomes
Increase immune system response
Aid in active living
Reduces weight of nearby residents
Increase cardiovascular function
Increase social cohesion

Apparently, trees can cure anything. Like Windex in My Big Fat Greek Wedding or any homeopathic remedy.

A likelier explanation is that wealthier neighborhoods tend to have more trees, and wealthy people tend to be dramatically healthier than poorer people. This could entirely explain the correlation between tree canopies and the diverse array of positive social and health outcomes.

Other studies suggest that nearby urban trees actually have a negative health outcome in terms of asthma and allergic reactions. A 2020 meta-study reached the following conclusion when taking all data into consideration:

Our findings support the growing public recognition of urban trees as an essential component of health-supportive environments. It is important, however, not to overstate the current evidence. For instance, the effects of trees vary by person and may not always be beneficial, such as the potential for tree pollen to exacerbate allergy conditions.

In sum, mature urban tree canopies are undoubtedly a good thing, but their benefits are probably overstated. They cannot single-handedly save us from depression, climate change, and poverty, despite a lot of exuberant headlines to the contrary.

The post Urban Tree Canopies: Good, but not a miracle cure first appeared on Washington Property Law.

Evicting Squatters, Guests, and Trespassers – Landlord Guide

WaPropLaw Staff — Fri, 12 Jan 2024 08:47:56 +0000

We’ve written this article because there’s a lot of bogus information online about evicting squatters and other non-tenant residents. Much of this bad info seems to be written by property managers and realtors who confuse adverse possession with the laws relevant to active squatter situations. It’s disappointing what companies do for search engine optimization.

Here will dispel some of the myths in these articles and address the relevant legalities of evicting (or otherwise removing) a squatter in Washington State.

“Squatters rights” AKA adverse possession

If you’re dealing with a squatter in a house or apartment building then adverse possession probably doesn’t apply.

Adverse possession (also known as “squatter’s rights) is the process by which a trespasser gains legal title to a property by using it as their own for 7-10 years. Adverse possession normally arises along contested boundary lines or roadways. It’s incredibly rare that an entire house or apartment is adversely possessed.

If you want to learn more about adverse possession, we’ve written a separate article here. This article is about dealing with recent squatters living in habitable spaces.

Is your resident a tenant, a squatter, or another kind of non-tenant?

Definitions are important in the law. If you’re a landlord trying to evict a residential tenant, you should stop reading now. Instead, you’ll want to read our guide to evicting a tenant in Washington State.

The definition of “tenant” is ambiguous (unfortunately)

Washington’s definition of a residential “tenant” is broad. Under the Washington Residential Landlord-Tenant Act, only the following list of “living arrangements” do not constitute a residential tenancy:

Residence in a hotel, motel, or other transient lodging pursuant to RCW 19.48.010.
Residence in an institution where medical, religious, or educational services are provided.
Occupation pursuant to a purchase agreement or condemnation, for example where a buyer occupies a property prior to closing, or a seller occupies it after closing.
Farm leases and other housing incidental to a job. For example, worker housing, or farm leases where there is a single-family farmhouse incidental to the farm lease.

Other than the above four exempt categories, all “living arrangements” constitute tenancies under Washington law. Notably, the term “living arrangements” is doing a lot of work and it has no statutory definition.

Practical implications of whether a resident is a tenant: If a resident is a tenant, then landlords can only evict them, which takes upwards of three months. If a resident is a non-tenant then landlords can also use the unauthorized persons statute or remove squatters using reasonable force, both of which are much faster and more efficient. We address each of these three removal methods below.

What is a “squatter”?

The term “squatter” is not defined by Washington law, but we use it to mean a person who has entered onto a property unlawfully for the purpose of residing therein. Notice that there’s a distinction between our definition of squatter and a residential guest that entered lawfully with permission, but who later refuses to leave (more on this below).

There’s a (small) chance squatters may be “tenants” under the above definition

You may have noticed that none of the above four exempt living situations apply to squatters. Thus, squatters may be tenants, in which case it would be illegal to remove them without a court order. In other words, squatters would have more legal protection than a hotel guest or a nursing home resident. Landlords would be obligated to ensure the habitability of the premises and keep utilities on. Obviously, that outcome would make no policy sense and would contradict the legislative intent behind Washington’s unauthorized persons statute (more on this below).

A plausible resolution to this problem: No Washington appellate court has ruled on this question of whether squatters are tenants under the Washington Residential Landlord-Tenant Act. However, the courts could harmonize apparent conflicts by defining “living arrangement” to mean an agreement between a landlord and a resident. Under this interpretation, a squatter that entered a unit illegally would not be protected by the Washington Residential Landlord-Tenant Act because the squatter never entered into a “living arrangement” with the landlord.

When good guests go bad

Another common situation is when a landlord invites a family member, friend, or romantic partner to stay at their property as a houseguest but later the guest refuses to leave. Under case law (and for liability purposes), a residential guest is considered a “licensee.” A licensee is defined as “a person who is privileged to enter or remain on land only by virtue of the possessor’s consent.” Generally, when a licensee is asked to leave, that ends their license to remain at the premises and the guest becomes a trespasser (see also, this article). However, as with squatters, the Washington Residential Landlord-Tenant Act appears to define houseguests as “tenants” because there is no exception for houseguests.

Unfortunately, this is another situation where we lack guidance from Washington appellate courts. Above, we’ve suggested a possible interpretation that would allow courts to avoid categorizing squatters (who enter the land illegally) as tenants. This interpretation may also help with some guests, but houseguests are more likely to be construed as having a “living arrangement” with the landlord. The duration of the guest’s stay and other facts may matter to a court’s determination.

In sum, we think most houseguests probably are not tenants, but some may qualify. Without guidance from the court, it’s difficult to draw the line.

Hotel, motel, and short-term rental (Airbnb) guests

Most guests in hotels, motels, and short-term rentals are not considered tenants under the Washington Residential Landlord-Tenant Act (exemption 1 above). To qualify for the exemption, the hotel, motel, or short-term rental must satisfy the elements of RCW 19.48.010:

Provide sleeping accommodations
to transient guests
in furnished rooms,
with three or more total rooms.

Annoyingly, there is no definition of “transient guest” or “room.” For purposes of taxation, the Washington State Department of Revenue defines a “transient tenant” as a resident staying for less than 30 days. However, because this definition arises from a different context (taxation), it may not apply here. Still, the safest strategy for hotel and Airbnb owners is to avoid continuous stays longer than 27 days (one day shy of the shortest calendar month).

The term “room” could also be clearer. In the context of a hotel or motel, a “room” is a complete unit. However, short-term rentals are usually a single unit composed of multiple rooms (e.g., an entire apartment or house). Would a single short-term rental fall under RCW 19.48.010 so long as it has more than three rooms? We think so, but there’s certainly room for argument.

In sum, most guests in hotels, motels, and Airbnbs probably aren’t tenants, but some may be.

The three lawful ways of removing non-tenants

Non-tenants (the four exempt living situations plus squatters) can be removed using the same three options as apply to squatters unless there’s another law or contract prohibiting their removal. For example, a real estate seller that has bargained to remain in the sold property for a month after closing probably cannot be evicted during that period because they have a contractual entitlement to stay.

1. Eviction

Landlords can evict non-tenants under the Washington Residential Landlord-Tenant Act (by issuing a three-day notice for unlawful activity under RCW 59.18.650(2)(c) and RCW 59.12.030(6)). The problem with this strategy is that the fastest possible eviction takes around three months (usually longer). You can check out our Washington eviction guide for more information on the process.

2. Unauthorized persons statute

Landlords can attempt to have their local police department remove the non-tenant or squatter by using the unauthorized persons statute, RCW 9A.52.105. It’s a simple process – the landlord signs a sworn statement declaring that the squatter is not a tenant and accepting liability for the squatter’s removal. Based on this sworn statement, the police department is legally authorized to forcibly remove the squatter without a court order.

This law originated in 2017 in response to a widely-publicized situation where squatters invaded a couple’s rental home, locking them out for months. The County sheriff refused to help because the owners hadn’t gone through the eviction process to obtain a court order:

Pierce County sheriff’s deputies say state law requires the couple to secure an eviction order before anything can be done. Deputies say they need to know for sure if they’re dealing with squatters or actual tenants, even if it seems obvious.

The entire purpose of this new law was to give police the legal justification they say they needed to remove squatters without a court order. The law passed with rare unanimous support in both the house and senate. The existence and phrasing of this law is part of why we believe the legislature did not intend to define squatters as tenants under the Washington Residential Landlord-Tenant Act.

Unfortunately, many local police departments are too cowardly to enforce the new unauthorized persons law. We’ve personally seen Tacoma, Pierce County, Fife, and Lakewood refuse to enforce it, each citing potential liability (even though the statute expressly exempts the departments from liability). It looks like the Clark County sheriff is equally useless. However, the Whatcom County Sheriff appears to enforce the law, so your mileage may vary.

In sum, using the unauthorized persons statute is worth a try, but don’t count on your local police department to uphold it.

3. Self-help forcible removal

All non-tenants are trespassers under the law once their license, or invitation, or contractual entitlement to the residence is over (note: squatters are probably trespassers too, but it’s not a settled question).

Landlords are entitled to forcibly remove trespassers using “reasonable force,” which is the amount of force that a reasonable person in the same situation would believe is necessary to make the trespasser leave. If the trespasser resists, the landlord may increase the amount of force they use in proportion to the force used by the trespasser and the threat the trespasser poses to the property. In certain situations, reasonable force can include the threat of deadly force.

Obviously, using force is a risky option—both legally and from a physical safety standpoint. An unreasonable use of force could be prosecuted criminally. Thus, a landlord attempting to remove a squatter could end up in prison themselves if they use too much force. Locking out the trespasser may be a lower-impact alternative to the use of force.

Legally, the safest route is to either evict the tenant or use the unauthorized person statute (if possible) as described above.

Final thoughts

Elsewhere, we’ve suggested that it may sometimes be worth the risk to illegally lock out a tenant. The same is true here. Because the law is unsettled, there are certain risks to locking out or using reasonable force to remove a squatter or holdover guest. However, these risks may be worth taking under desperate circumstances. That said, if you can afford to avoid taking risks you probably should.

It would be nice to have a clear answer on some of these questions. Unfortunately, poor legislative drafting often makes the application of laws uncertain until a court has ruled on them. The Residential Landlord-Tenant Act originally passed in 1973, and yet appellate courts still haven’t decided these basic issues around squatters and guests. Why? Because no relevant cases have reached the appellate level. To create precedent addressing these questions, a landlord need to forcibly remove a squatter or guest, and then the squatter or guest would need to sue for repossession, and that case would need to be appealed. This hasn’t happened in 50 years, and it may not happen in the next 50. Therefore, practitioners and landlords need to learn to live with ambiguity.

The post Evicting Squatters, Guests, and Trespassers – Landlord Guide first appeared on Washington Property Law.

Easements: Giving away some (but not all) your property rights

WaPropLaw Staff — Mon, 08 Jan 2024 11:27:03 +0000

An easement is a non-possessory interest in real property that allows one or more person to use a piece of property for a specific purpose, even though they don’t own the property. If this seems confusing, you are not alone. In this article, we will walk you through the most common types of easements, how they originate, and how you can deal with common easement disputes that arise in your land use.

Why is this information important? Because easements tend to impact the value and usefulness of the property they burden, and add value to the property they benefit. If your property is burdened by an easement, the easement may complicate and hinder the uses to which you can put your property. Alternatively, if you or your property is benefited by an easement, that may expand the potential uses of your property and make it more valuable.

Types of Easements

Washington law sets out two main kinds of easement:

Easements in gross – These easements give benefits to specific parties, regardless of what property they own. The party that benefits from an easement in gross usually cannot transfer those rights to another party.

This kind of easement is common when, for example, a utility company wants to install power lines or gas lines on a property. That specific utility company owns the easement and often cannot transfer its easement rights to anyone else.

Easements appurtenant – Instead of benefiting a specific person, this kind of easement “runs with the land” and therefore benefits whoever owns a particular property. In other words, this kind of easement is inseparable from the subject property, and passes from one owner to the next as the property is transferred unless something operates to extinguish the easement.

A common example is a driveway easement. An easement appurtenant can occur when Neighbor A has no other way to access his land by vehicle except via Neighbor B’s existing driveway. B can grant A an easement appurtenant allowing A to use B’s driveway. If A ever sells the property, the new owner will inherit the right to use B’s driveway. This kind of easement is far more common in the cases we deal with.

Both kinds of easements have legal implications that property owners should carefully consider before granting them. In some cases, easements may arise even without your knowledge, so it is important to learn about any existing easements and what they mean for you.

How Easements Arise?

In some cases, another party may simply request that you grant an easement, giving you the opportunity to agree or not. In other situations, an easement can arise without your express knowledge or consent. Therefore, it is important to be vigilant when you allow others to use your property.

The following easements may exist in your area:

Express easements – These easements are created by express agreement, and they are the most common. They are typically negotiated by the parties, and then signed into existence by written agreement or by deed. These are the most common and straightforward kinds of easements.
Easements implied by necessity – An easement by necessity can arise if one property has no access to something absolutely necessary for the use and enjoyment of the property. A common example occurs when one property is landlocked by another, and the owner of the landlocked property needs to pass through part of another’s property to access a public roadway or utility.
Prescriptive easements – To obtain a prescriptive easement in Washington, one property owner must openly, hostilely, and continuously use part of another’s land for 10 years without permission. The laws for establishing a prescriptive easement are almost the same as the requirements for establishing adverse possession.
Easements created through eminent domain – Another common way an easement can originate is through eminent domain, which is also commonly referred to as condemnation. The government or an affiliated party (such as a utility company) may use its constitutional powers to take part of your land for the “benefit of the public.” Even if you do not wish to agree to the easement, eminent domain allows the government to take your land as long as it provides “just compensation” to you for the easement. If someone has approached you about a possible eminent domain action, you should speak with a real estate lawyer as soon as you can, and before you sign anything.
Easements implied by prior use – Easements implied by prior use is the law’s way of honoring informal easement-like arrangements that were likely intended to run with the land. Easements arising from prior use must generally satisfy each of the following elements: (1) One larger property has been subdivided, and some part of the original undivided property has been transferred; (2) Prior to the sale, the owner of the original undivided property had been using one of the now-subdivided lots to benefit another now-subdivided lot; (3) The prior use was reasonably necessary to the enjoyment of the benefited land (a lower bar than easements implied by necessity above); (4) The prior use was continuous up until the time of transfer; and (5) The prior use was reasonably apparent to the parties at time of transfer.

Easement Disputes and Litigation

Once an easement exists—or one party asserts that an easement exists—disputes may arise regarding the easement. Possible issues include:

Property owners deny the existence of an easement and attempt to stop another party from using their land.
Property owners try to block the legitimate use of their land under a valid easement.
Two property owners cannot agree on the specific terms of an easement.

Challenging an Easement or the Way Your Property is Being Used

If you own a piece of property that is subject to an easement and have issues with the way that your land is being used by the easement holder, you may be able to take steps to either remove the easement or limit the way the easement holder uses your land. Some of the remedies available to people who own property that is subject to an easement include the following:

The issuance of a court order restricting the way that the party with easement rights uses the land.
Monetary damages for any losses that you experience due to the easement or the use of the land.
A removal of the easement in its entirety.

Alternatively, if your property is benefited by an easement and the servient (non-benefited) property owner is interfering with your easement rights, you may be able to pursue the following:

Enforcement of your easement rights.
Monetary damages for any losses you have suffered as a result of the servient property owner’s erroneous restriction of your use of the easement.

The post Easements: Giving away some (but not all) your property rights first appeared on Washington Property Law.

Adverse Possession: When trespassing becomes ownership

WaPropLaw Staff — Mon, 08 Jan 2024 11:18:08 +0000

What is Adverse Possession?

You may know adverse possession by the colloquial term, “squatter’s rights.” Basically, if someone has had possession of a piece of real property for a long time without the permission of the legal owner, then he or she may be entitled to ownership of the property under adverse possession.

Adverse possession is a common occurrence in boundary line disputes. If you think your neighbor might be encroaching on your land (or vice versa), you may also want to check out our article on boundary line disputes.

Elements of Adverse Possession

Under Washington State case law and statutes, an adverse possessor can usually only claim a right to the property after 10 years. However, if the adverse possessor has record title, or has continuously paid the property taxes and has color of title (typically in the form of a flawed paper title that does not show up on the record), then the adverse possessory period is only 7 years.

Along with possession for the required duration, an adverse possessor must generally satisfy all of the following 5 requirements:

Actual possession: The adverse possessor must be in true possession of the land such that the title-holder could have pursued an action for trespass.
Exclusive possession: The adverse possessor’s possession of the property is uninterrupted by the true owner. If the true owner ousts the adverse possessor, that restarts clock, even if the adverse possessor moves right back in the next day.
Continuous use: The adverse possessor must have used the property as an owner would have for the entire duration of possession. If the property is a normal single-family dwelling, then the adverse possessor must typically use that property as a primary residence for the whole possessory period. Vacations or trips to the hospital would probably not interrupt the continuity of use. However, if, for example, the property were a remote hunting cabin in the woods that would not normally be used as a primary residence, the adverse possessor may be able to claim continuous use if she has used the cabin for hunting trips each year for the possessory period.
Open and notorious use: If the owner has actual knowledge of the use, then this element is met. Otherwise, this element is satisfied by the kind of use that would put a reasonable person on notice. For example, if the adverse possessor has put up a fence, closed a gate, built a building, or planted crops, then the adverse possessor’s use would be deemed “open and notorious” by the courts.
Hostile use: This element does not require antagonism of any kind. Rather, the hostility requirement is met when the adverse possessor uses the true owner’s land without permission, in a manner inconsistent with the true owner’s rights. Thus, occupying land under a good faith but mistaken belief that it is yours would still be considered “hostile” under Washington law.

Defending Against an Adverse Possession Claim

There are a number of things that can stop adverse possession in its tracks:

Negating one of the above elements: If the rightful property owner can show that the adverse possessor has not satisfied one of the above elements, then the adverse possession claim will fail.
Government property: You cannot adversely possess government land.
Tolling: If the rightful owner has died, is disabled, is absent from the state, is in the military, or is in prison when the adverse possessor moves onto the property, then the 7 or 10-year possessory period may be “tolled” (i.e. may not begin to run) until the rightful owner is no longer indisposed. For example, if a squatter has been in possession for 12 years, but the rightful owner was serving abroad in the military when the adverse possessor entered the property and did not return for 3 years after that date, then those 3 years will be subtracted from the 12 years the adverse possessor has been on the property for the purposes of determining adverse possession. Thus, the adverse possessor will be deemed to have only possessed the property for 9 years, which is typically not long enough to claim title under adverse possession in Washington (without color of title or paying the property taxes–in which case the shorter 7-year possessory period would apply, and the adverse possessor would have adversely possessed the property).
Permission: If the rightful owner has given the adverse possessor permission to occupy the property, that will usually spoil the element of “hostility” because, if he has permission, the adverse possessor’s use will not be hostile to the rights of the owner.

The Purpose of Adverse Possession

Usually, adverse possessors are using the subject property under a mistaken (but good faith) belief that they own it. For instance, if your neighbor accidentally built a fence 2 feet over the property line onto your property 10+ years ago, he probably has legal title to that property under adverse possession. Likewise, if you purchased a property 7+ years ago in good faith from a fraudulent seller who gave you flawed paper title, you may have clear title to that property now via adverse possession. In this way, adverse possession operates to smooth out long-overlooked mistakes in property ownership by giving title to the party that has been putting the property to good use for a long period of time. This is arguably a good thing.

However, adverse possession is sometimes criticized as legalized theft–and this critique certainly has some merit too. Occasionally, adverse possessors move onto a property for the express purpose of squatting for long enough to claim legal title via adverse possession. If these squatters meet all the elements of adverse possession, then the law rewards these trespassers with legal title to the subject property. This seems unjust.

The post Adverse Possession: When trespassing becomes ownership first appeared on Washington Property Law.

Contact Us

WaPropLaw Staff — Thu, 04 Jan 2024 04:45:17 +0000

WaPropLaw.com is an informational resource that allows knowledgeable real estate professionals to share their experience with a broader audience. We’re always interested in adding articles from reputable professionals. We’re also interested in receiving article topics and corrections from readers.

If you’re seeking help on a real estate problem, you’re welcome to send us a contact form submission and we will do our best to refer you to a professional we trust. However, please note that we are not a law firm or real estate brokerage, so we cannot directly assist you with your real estate needs.

Please do not send us confidential information!

The post Contact Us first appeared on Washington Property Law.

Washington Housing Policy and Land Use Law

WaPropLaw Staff — Thu, 04 Jan 2024 04:00:05 +0000

Welcome to the forefront of housing advocacy and land use law, where your rights as a property owner or tenant intersect with the intricate regulations that shape our communities. This guide aims to shed light on the crucial issues surrounding housing, land use, and the legal framework that governs them.

Housing policy

Access to safe, affordable housing is a fundamental right. Housing advocacy plays a pivotal role in ensuring fair housing practices, preventing discrimination, and advocating for policies that address homelessness and housing insecurity. Whether you are a homeowner, renter, or community advocate, understanding housing laws is essential for safeguarding your rights.

Land use law

Land use law plays a pivotal role in shaping the physical and social fabric of our communities. By regulating how land is developed and utilized, it ensures a balance between individual property rights and the collective well-being of the community. Zoning regulations, a key component of land use law, guide the establishment of residential, commercial, and industrial zones, influencing everything from neighborhood aesthetics to economic development. Environmental protections embedded in land use law safeguard natural resources, ensuring sustainable growth and minimizing ecological impact. Community planning, another aspect of land use law, allows residents to actively participate in decisions that impact their surroundings, fostering a sense of ownership and connectivity. In essence, land use law is the blueprint for responsible and harmonious community development, ensuring that our shared spaces evolve in ways that benefit us all.

Our recent housing policy and land use law articles

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Adverse Possession: When trespassing becomes ownership

January 18, 2024

What is Adverse Possession? You may know adverse possession by the colloquial term, “squatter’s rights.” Basically, if someone has had possession of a piece of real property for a long time without the permission of the legal owner, then he

Joint Ownership Disputes: Regretting your partnership?

January 18, 2024

Common Points of Contention No relationship is perfect. Some of the most common joint ownership disputes that arise among property co-owners include the following: One of the owners has sole possession of the property but refuses to pay rent or

Key Aspects of Land Use Law

Land use law dictates how land is developed, utilized, and preserved. It encompasses zoning regulations, environmental protections, and community planning. To navigate this complex landscape, it’s crucial to be aware of the following key aspects:

Zoning Regulations: Zoning laws define how land can be used within specific areas. Understanding zoning regulations is essential for property owners, developers, and anyone involved in the construction or modification of structures.
Environmental Protections: Land use law often includes measures to protect the environment. This can involve restrictions on development near sensitive areas, water conservation efforts, and sustainable building practices.
Community Planning^{[3](#user-content-fn-3)}: Engaging in community planning processes allows residents and stakeholders to shape the future development of their neighborhoods. Being involved in these discussions ensures that your voice is heard in decisions that impact the community.

Housing Advocacy in Action

Advocating for housing rights involves promoting policies that ensure equitable access to housing, preventing discrimination, and addressing homelessness. Key areas of focus include:

Fair Housing Practices: Understanding and promoting fair housing practices is essential to combat discrimination based on race, gender, disability, or other protected characteristics.
Homelessness Prevention: Housing advocates work towards solutions to prevent and address homelessness, including the development of affordable housing, support services, and eviction prevention measures.
Tenant Rights: Knowing and advocating for tenant rights is crucial for ensuring fair treatment and preventing illegal evictions or housing discrimination.

Conclusion

Whether you’re a homeowner, renter, or community advocate, understanding housing advocacy and land use law is vital for shaping the future of our communities. Our commitment is to empower individuals and communities through legal knowledge, ensuring that everyone has access to safe, affordable housing and a voice in the development of their neighborhoods.

The post Washington Housing Policy and Land Use Law first appeared on Washington Property Law.

Washington Construction Law

WaPropLaw Staff — Thu, 04 Jan 2024 01:03:45 +0000

If you’re involved in the construction industry in Washington, understanding the legal framework is crucial for navigating the diverse challenges of your projects. From contractual agreements to regulatory compliance, this guide will illuminate key aspects of construction law tailored to the Evergreen State.

Navigating construction law in Washington state

The construction industry in Washington is thriving, fueled by projects spanning residential, commercial, and public infrastructure. To successfully navigate this dynamic environment, a solid understanding of construction law is essential. This body of law encompasses various issues, including contract disputes, licensing, construction defects, mechanics’ liens, and compliance with regulatory requirements.

Our recent construction law articles

Mechanic’s Liens

January 19, 2024

Construction Law: Know your rights as a contractor or client

January 18, 2024

Construction projects can be complicated. In most projects, there are many parties with varying roles set out by a network of contractual obligations. If something falls through, it can cost everyone involved a significant amount of money. For this reason,

Key aspects of Washington construction law

Contractual Agreements
Clear and well-drafted contracts serve as the cornerstone of successful construction projects. Washington law places significant importance on contracts in defining the rights and responsibilities of each party involved. From project specifications to payment terms, a deep understanding of contract law is crucial for avoiding disputes and ensuring project success.
Licensing Requirements
Washington state mandates contractors to be licensed, and familiarity with the licensing process is essential for compliance. Navigating the Washington Department of Labor & Industries (L&I) regulations ensures your business operates within the legal framework, minimizing the risk of penalties and project delays.
Mechanics’ Liens
In cases of non-payment for services or materials, contractors and suppliers can file mechanics’ liens to secure their interests in a property. However, the process is intricate and subject to specific timelines. Understanding the Washington lien laws is critical for protecting your right to payment.
Construction Defects
Construction defects can lead to costly legal battles and jeopardize the integrity of a project. Washington has specific laws addressing construction defects, and understanding your rights and obligations can make a significant difference in resolving disputes efficiently.
Regulatory Compliance
Washington’s construction industry is subject to various state and local regulations. Staying informed about building codes, environmental regulations, and safety standards is essential for avoiding legal pitfalls and ensuring your projects meet the necessary requirements.

Conclusion

Successfully navigating Washington state’s construction law requires expertise and experience. Your success in Washington’s construction industry starts with a solid understanding of construction law. We hope you’ll find our website useful in that regard.

The post Washington Construction Law first appeared on Washington Property Law.

Mechanic’s Liens

WaPropLaw Staff — Mon, 01 Jan 2024 19:40:38 +0000

A mechanic’s lien is a type of lien used by contractors, subcontractors, or material suppliers to place an encumbrance on a piece of property until a debt is paid. For example, an individual who installs a new deck in someone else’s backyard could place a lien on the property that was improved (the entire parcel of real estate) for the value of the service and/or materials provided. While the lien is in place, it can restrict the sale of the property and may make it difficult for the owner to use the property as collateral or modify an existing mortgage.

Obtaining or Challenging a Mechanic’s Lien

Under Washington law, a lien must be publicly recorded and comply with certain legal formalities to be effective. This means that, for contractors seeking to establish and enforce a mechanic’s lien, it is highly advisable to have an attorney’s assistance along every step of the way. Likewise, if you are a homeowner with a mechanic’s lien over your property, a good attorney may be able to get the lien cancelled if the contractor failed to comply with these formalities.

Here are some issues that may affect the validity and enforceability of a mechanic’s lien in Washington State:

Whether the lien was filed within 90 days after the party seeking the lien has stopped furnishing labor, professional services, materials, or equipment
The county in which the lien is filed
The description of the labor, services, materials, or equipment that was furnished in the notice of claim
The description of the property to be charged with the lien in the notice of claim
The identification of the person indebted to the person filing the lien in the notice of claim
The amount for which the lien is claimed in the notice of claim

These are just some of the procedural and substantive issues that can affect a mechanic’s lien. A full listing can be found in RCW 60.04.091.

Is your lien frivolous?

Another way to get a mechanic’s lien cancelled is by proving that it’s frivolous. A lien is “frivolous” under the law when it is made without reasonable cause or is excessive in light of the services performed or materials provided. If successful, the lien will be released or reduced and the lien claimant will be required to pay reasonable attorney’s fees.

If you are a contractor, you need to be careful that your lien cannot be challenged for frivolousness. If you a homeowner with a mechanic’s lien on your property, it may be worth looking at the legal procedure through which to challenge frivolous claims. Regardless of which side you’re on, it’s usually a good idea to retain qualified legal counsel to maximize your chances of success.

The post Mechanic’s Liens first appeared on Washington Property Law.

Are illegal tenant lock-outs becoming the most cost-effective option?

WaPropLaw Staff — Sun, 31 Dec 2023 18:39:19 +0000

Evictions are expensive–often costing $2,000-5,000. They also take a long time–usually at least four months from start to finish. Due to these high costs, frustrated landlords sometimes wonder whether it’s worth the risk of just skipping the eviction process and locking their tenant out of the unit illegally, a practice known as landlord “self-help.” This question of whether to engage in self-help seems to be increasingly common among smaller, poorer landlords in Seattle or Tacoma who can’t afford to subsidize a tenant for 9+ months.

Is illegal self-help a viable option in 2024? The short answer is maybe. However, we definitely can’t recommend it.

The concept of “efficient breach”

The term “efficient breach” originated in contract law to describe a situation where one party to a contract decides to breach their duties because it is cheaper to pay damages than to perform. Efficient breach can only occur when compliance is more costly than noncompliance. Essentially, efficient breach is the result of a cost-benefit analysis.

The efficient breach concept can be applied to breaches of public law as well. For example, the majority of drivers speed because they believe it’s worth the occasional speeding ticket to save 3-5 minutes on a standard commute (up to 21 hours a year!). Speeding can be an efficient breach of civil law.

Another example is big polluters. If it would cost an oil company $1MM per ton to mitigate illegal emissions but the EPA only charges $400,000 per ton in penalties, then the oil company still makes $600,000 per ton by polluting and accepting the EPA penalties. This is another (too common) example of efficient breach.

So, is illegally locking out your tenant an efficient breach of law? Let’s look at the costs and benefits.

Legal penalties for locking out your tenant

Locking out your tenant is illegal under RCW 59.18.290(1), which states:

It is unlawful for the landlord to remove or exclude from the premises the tenant thereof except under a court order so authorizing.

In the event of a violation, the tenant is entitled to the following damages:

recover possession of the premises,
recover actual damages (e.g., moving costs, interim housing costs, lost wages), and
reimbursement of their attorney fees.

Landlords may be wondering whether illegally locking out a tenant has any potential benefit when a tenant has the right to recover possession of the premises. The main potential advantage comes from the fact that a tenant must sue to obtain relief, which can be a major barrier to action.

Tenants in these cases have no right to a free attorney (whereas many tenants do have the right to a free attorney in evictions). Hiring an attorney would cost perhaps $5,000 or more. That said, there are plenty of pro-tenants organizations that may be willing to represent an illegally displaced tenant for free, particularly if the landlord has illegally displaced more than one tenant in the same complex around the same time.

Other possible liability

After researching the appellate records, we did not find any cases where landlords that illegally locked out their tenants were found liable for anything other than the damages set out above (restoring the tenant to possession, actual money damages, and attorneys fees).

However, other penalties may be possible depending on the fact pattern. For example, if a landlord physically touches a tenant in the process of changing the locks, that may be assault. If a landlord throws out or sells the tenants’ possessions, that may constitute theft and may also incur liability under RCW 59.18.230.

Locking out a tenant on purpose is the kind of thing that makes judges, newspapers, and pro-tenant organizations very angry. Additional penalties are very possible, but difficult to predict due to a lack of recent cases addressing this issue.

Possible strategy for preventing illegally displaced tenants from recovering possession

A possible strategy for preventing a displaced tenant from recovering possession may be to quickly fill the unit with a new tenant.

As far as we can tell, this question is untested by Washington Courts. However, we think a close analogy is sale to a “bona fide purchaser for value” in the real estate purchasing context. For those unfamiliar with the concept, we’ll explain. After getting under contract to sell a property to a buyer, a seller will sometimes refuse to close the sale in violation of the contract (this can happen for many reasons). In these cases, sometimes the seller will quickly sell the contested property to an innocent buyer–the “bona fide purchaser for value”–who doesn’t realize the first buyer has the property under contract. After the sale to a bona fide purchaser, the first buyer can no longer force the seller to unwind the sale and sell the property to the buyer.

Likewise, if a landlord illegally displaces the first tenant and quickly re-rents the unit to a new tenant who is unaware of the first tenant’s illegal displacement, then probably a court would decline to displace the new tenant in order to restore the first tenant to possession of the premises. Obviously, the landlord would still be liable to the illegally displaced tenant for their actual damages and attorneys fees, but if the tenant is bad enough, that may be a worthwhile price to pay.

Tenant’s duty to mitigate damages

The “duty to mitigate,” is the plaintiff’s obligation to make reasonable efforts to limit the harm they suffer from the defendant’s illegal actions. Thus, an illegally displaced tenant cannot rent a room at the Four Seasons for a month and ask the landlord to pay for it as part of their actual damages. Instead, the tenant must take reasonable measures to limit their losses, such as rent a motel room or reasonably-priced Airbnb until they can find a comparable apartment.

Weighing the costs and benefits

To ascertain whether a breach is efficient, one must weigh the costs and benefits.

Estimating the costs of an illegal lockout

Estimating the potential liability is difficult. It depends on the rent, your tenant, and how the lawsuit goes. However, here is a hypothetical set of possible costs that we think are on the high end of realistic:

Tenant’s moving and storage costs: $1,000
Tenant’s interim housing costs: $2,000
Difference between tenant’s new rent and old rent over lease term: $2,000
Tenant’s lost wages during move/displacement: $2,000
Tenant’s attorney fees and costs (assuming no major litigation): $4,000
Landlord’s attorney fees: $4,000

Total: $15,000

Again, these costs are an estimate (possibly an overestimate), and the majority of tenants probably wouldn’t sue, in which case the cost to the landlord would be $0.

For context, let’s compare these potential costs to a normal eviction as well as a bad-but-not-worst-case-scenario eviction in Tacoma.

Estimating a landlord’s costs in a normal eviction

Below is a reasonable cost estimate in a “normal” eviction using the average two-bedroom rent in Tacoma:

Two months of lost rent for notices and court ruling, two months for sheriff action (assuming $1,730 monthly rent): ~$6,900
Attorneys fees and costs: $5,000

Total: $11,900

In this instance, a landlord probably doesn’t have a strong incentive to illegally lock out a tenant. However, the costs of going through the legal eviction process are certain, whereas the costs of a tenant litigating to recover damages and possession of the premises are uncertain. If a landlord believes that the odds of a tenant litigating are less than about 80%, it would become efficient to illegally lock out a tenant.

Note that the King and Pierce County Sheriffs usually takes two full months to actually kick out the tenant even after the landlord’s attorney has obtained a court order allowing them to do so. This may vary when the sheriff is less busy or in other jurisdictions.

Estimating a landlord’s costs in a school-year ban eviction in Tacoma

Tacoma has a 9.6-month school-year eviction ban, so costs go up dramatically.

9.6 months of lost rent plus two months for sheriff action (assuming $1,730 monthly rent): $20,000
Attorneys fees and costs: $5,000

Total: $25,000

In this instance, a landlord has a clear, $10,000+ incentive to illegally lock out their tenant. This is a case where an illegal lockout very likely constitutes an efficient breach.

Conclusion

Illegally locking out a tenant is a risky and unattractive option that creates bad blood, invites bad publicity, and worsens the reputation of landlords everywhere. However, as Washington lawmakers foist more and more costs on landlords, landlords will increasingly have an incentive to engage in illegal lockouts as an efficient breach.

As a general rule, laws shouldn’t incentivize efficient breach. The best way to fix this issue would be to make evictions less costly for landlords in jurisdictions like Tacoma where evictions have been bankruptingly expensive.

All that said, the best option for landlords seeking a practical solution is often cash for keys where the landlord agrees to pay the tenant to leave. We wrote an article explaining how we engage in this negotiation. Definitely give it a read before doing something rash.

The post Are illegal tenant lock-outs becoming the most cost-effective option? first appeared on Washington Property Law.