The Definitive Guide to Evicting a Residential Tenant in Washington State

Welcome to the most comprehensive online guide for Washington evictions

We know from firsthand experience how frustrating and confusing evictions can be on the landlord side. This guide is largely based on our our notes from years of boots-on-the-ground experience with evicting tenants from our own properties. If you would like to retain the landlord-tenant attorneys at the Brink Law Firm to help with your eviction, please email us online or call us at 253.620.6666.

How to Use this Guide

The process to evict a tenant will vary substantially depending on the reason(s) for the eviction and the responsiveness of the tenant you are trying to evict. In the following flowchart, we have included nearly all the possible routes to evicting your tenant.

You do not need to read this whole (very long) guide to get the information you need! Instead, we recommend that you click on the cells in the flowchart that pertain to your eviction, which will scroll you directly to the relevant step or section. If you’re using mobile, just click on the correct “reason” in Step 1.

This guide applies to most (but not all!) residential evictions in Washington. Specifically, this guide does not apply to evictions that are exempt from Washington’s Residential Landlord-Tenant Act as described in RCW 59.18.040 (such as evictions from tenant-owned mobile homes). Also, certain municipalities have instituted laws that subtly alter the eviction process from the baseline process described here. Click on the following links to read about how evicting a tenant in Tacoma or Seattle is different from the process described here.

If you intend to hire an attorney to handle your eviction, you only need to worry about the first three steps. Once you have issued the relevant prelawsuit unlawful detainer notice, an eviction attorney will take care of the rest.

Please read our full disclaimer below. None of the information on this website (including this page) is intended as legal advice; nor is it intended to give rise to an attorney-client relationship.

Step 1: have a reason to terminate the tenancy

Once you and your tenant enter into a lease, the tenant is typically entitled to the use of your property until some event occurs to end their right. The point at which your tenant loses their right to use your property is called the “termination of tenancy” in legal parlance. You cannot evict a tenant until they have lost the right to occupy the property, so the first step in every eviction is to have a legally valid reason to terminate the tenancy.

Below is a list of the most common reasons to terminate the tenancy. If your situation does not fall into one of the 6 categories below, you probably do not have the right to terminate the tenancy:

  1. The tenant fails to pay on time;
  2. The tenant fails to comply with the terms of the lease;
  3. The tenant commits waste, nuisance, a minor (i.e. lessor) criminal act, or unlawful business;
  4. The tenant has engaged in drug-related activity, serious criminal act involving a deadly weapon, or gang-related activity;
  5. One party chooses not to renew the lease; or
  6. The lease expires naturally.

We have included a detailed explanation of each category below. Most of the above categories (all except categories IV and VI) require you to issue a corresponding “prelawsuit unlawful detainer notice” before proceeding with an unlawful detainer (i.e. eviction) lawsuit. The goal of a prelawsuit unlawful detainer notice is to provide tenants with sufficient notice that you’re planning to terminate the tenancy. Each category requires a different prelawsuit unlawful detainer notice, so make sure you use the correct one for your situation. We have created a comprehensive set of form notices that are available for download here, or after each relevant section below.

Remember: The procedural details are important here, since even a slight misstep can force you to restart the entire eviction process over again, or prohibit you from evicting a problem tenant until they commit another violation.

I. Reason to Terminate Tenancy: The tenant fails to pay on time

If a tenant is actually late on rent and does not comply with a properly served and processed 3-day pay or vacate notice, then you have grounds to terminate the tenancy and proceed with an unlawful detainer action.

Is your tenant’s rent actually late?

Most leases set the first day of the month as the due date for each rental payment but provide a 5-day grace period so that the rent is only late if the full amount has not been paid by the 5th of the month. If your tenant’s lease is structured this way, you must usually wait until the 6th of the month to serve your 3-day notice to pay or vacate.

Kind of Notice Required for Tenant’s Failure to Pay: 3-day pay or vacate notice

You can download our 3-day notice to pay or vacate form below, or you can use your own.

Your 3-day pay or vacate notice must at minimum include:

  1. A statement informing the tenant that they must, “pay or” If your notice fails to mention one of these alternatives, or states, “pay and vacate” rather than “pay or vacate,” your notice is void. Housing Authority v. Terry, 114 Wn.2d 558, 789 P.2d 745 (1990).
  2. A good faith statement of the amount you believe your tenant owes. This is required because the purpose of the 3-day pay or vacate notice is to allow the tenant an opportunity to conform to the terms of the lease. If the notice does not specify the correct amount owed, the court may determine that it does not provide effective “notice” under the law. Foisy v. Wyman, 83 Wn.2d 22, 515 P.2d 160, (1973).

Remember: Your local jurisdiction may require more details! This is just what Washington state law requires at a minimum.

Can you ask for payment for utilities, late fees, or other non-rent items in the 3-day pay or vacate notice?

Probably not. According to RCW 59.12.030(3), a 3-day pay or vacate notice may require, “in the alternative the payment of the rent or the surrender of the detained premises.” Note that this statute only explicitly allows the landlord to ask for rent; not for late fees, utilities payments, or other non-rent money owed.

If you do issue a 3-day pay or vacate notice that asks your tenant to pay non-rent items, a savvy defense attorney could argue that the notice is invalid. If the court finds that your notice was invalid, then you may need to reissue the notice, which could cause unnecessary complication, delay, and expense.Therefore, it’s typically safer to use a 10-day Comply or Vacate notice to request fees, utility payments, and other non-rent money that a tenant owes.

The one exception is if your lease includes a clause that defines utility payments, late fees, or other expenses as “rent.” If your lease has such a clause, that may allow you to ask for utility payments or late fees in your 3-day pay or vacate notice without running afoul of the above statute and jeopardizing your case.

II. Second Reason to Terminate Tenancy: Tenant Fails to Comply with the Lease

If your tenant actually fails to comply with the terms of the lease (other than being late on rent, covered above) and your tenant fails to conform to a properly-served 10-day comply or vacate notice, then you can terminate the tenancy and proceed with an eviction.

Did the tenant actually violate the lease?

Most of the time, leases prohibit the tenant from doing certain things—for instance, it may prohibit subletting, pet ownership, or smoking indoors. If your tenant is currently in violation of the lease, it is often best to gather evidence of noncompliance and proceed by issuing a 10-day comply or vacate notice.

However, there is often leeway for your tenant to do unfavorable things without actually violating the terms of the lease. If the tenant is doing something bad, but is not actually violating the terms of the lease, this section doesn’t apply. Fortunately, you may still be able terminate a problem tenant’s lease and proceed with an unlawful detainer action if your tenant is committing waste, nuisance, criminal acts, or unlawful business.

What about late fees, utility costs, or other non-rent money the tenant owes?

It’s best to use a 10-day comply or vacate notice for late fees, utility costs, or other money that does not qualify as “rent.” This is because (as explained above) RCW 59.12.030(3) only specifically authorizes you to include “the payment of rent” in your 3-day pay or vacate notice. You can issue a 10-day comply or vacate notice for other fees alongside your 3-day pay or vacate notice for rent.

Tips for Gathering Evidence of Noncompliance

If your tenant is violating the terms of the lease, you should make sure to document the noncompliance as best you can. Why? Because if you have to proceed to an unlawful detainer action, your tenant may argue that they were never out of compliance in the first place. If that occurs, it will be easier to win your unlawful detainer action if you have good documentation of the noncompliance.

If the noncompliance is visible from the exterior of the unit, taking a photo can be a great option. We recommend taking at least two photos: an up-close photo of the refuse, damage, etc., and a zoomed-out photo that shows the location and context of the noncompliance in relationship to the unit.

If the noncompliance is audible but not visible from outside the unit, you should consider recording the noise. Most smartphones have a function that allows you to easily record snippets of audio (e.g. on the iPhone, this function is called “Voice Memo”).

If the noncompliance is neither visible nor audible from outside the unit, you may have to get creative. Sometimes it’s a good idea to get a neighbor to sign a letter affirming the noncompliance.

Whatever you do, remember that entering the unit without your tenant’s permission is not a legal way to ascertain whether your tenant is in compliance with the lease! RCW 59.18.150(7) specifically states that, “[t]he landlord has no other right of access [to the tenant’s unit] except by court order, arbitrator or by consent of the tenant.”

Kind of Notice Required for Tenant’s Failure to Comply: 10-day comply or vacate notice

You can download our 10-day notice to comply or vacate form below, or you can use your own.

Your 10-day pay or vacate notice must at minimum include:

  1. A statement informing the tenant that they must, “comply or vacate”: If your notice fails to mention one of the alternatives, or states, “comply and vacate” rather than “comply or vacate,” the notice is void. Housing Authority v. Terry, 114 Wn.2d 558, 789 P.2d 745 (1990).
  2. A reference to the rule or statute that the tenant has violated. This is because the purpose of the notice is to allow the tenant an opportunity to conform to the terms of the lease. If the 10-day comply or vacate notice does not explain what your tenant is doing wrong, the “notice” has not actually provided effective notice under the law, and so it may not hold up in court. Byrkett v. Gardner, 35 Wash. 668, 77 P. 1048, (1904).

Remember: Your local jurisdiction may require more details! This is just what Washington state law requires at a minimum.

III. Third Reason to Terminate Tenancy: Tenant commits waste, nuisance, minor criminal acts, or unlawful business

If your tenant commits waste, nuisance, minor (i.e. lessor) criminal act, or unlawful business, then you can terminate the tenancy and proceed with an eviction. However, not all bad behavior falls under one of these four categories; to qualify as waste, nuisance, minor criminal act, or unlawful business, your tenant’s conduct must meet certain thresholds under the law. These categories have a lot of crossover:

Waste

Waste is a reason to terminate the tenancy under RCW 59.18.130(5) and RCW 59.12.030(5). To be considered waste, an act must cause “substantial injury” to the property itself. Graffell v. Honeysuckle, 30 Wn.2d 390, 191 P.2d 858, (1948). Waste can result from mismanagement, poor upkeep, or intentional damage to the rental property.

Nuisance

Nuisance is a reason to terminate the tenancy under RCW 59.18.130(5) and RCW 59.12.030(5). In the law, “nuisance” is often tied to “waste,” so the definitions have some crossover.

To be considered a nuisance, an act must be more than a mere inconvenience, and must either cause tangible injury to the property itself (similar to waste), or cause another resident “such physical discomforts as detract sensibly from the ordinary enjoyment of life.” Tarr v. Hopewell Community Club, 153 Wash. 214, 279 P. 594, (1929). This is a fairly broad and flexible definition, so the court has a lot of discretion in determining what constitutes a nuisance.

While most waste can also be considered a nuisance, nuisance also covers non-waste things like noxious odors, blinding lights, or loud noises. Keep in mind that these kinds of physical disturbances must be chronic and fairly severe to constitute a nuisance.

Minor (i.e. Lessor) Criminal Acts

If your tenant committed assault with a deadly weapon, is involved in a gang, or has committed a drug offense, then proceed to the next section. However, if your tenant got in a fist fight, stole something non-violently, or committed another relatively minor offense, you can can evict that tenant for waste and nuisance as described in this section.

Unlawful business

Unlawful business is a reason to terminate the tenancy under RCW 59.12.030(5). In some cases, “unlawful business” may concern minor criminal acts, like illegal gambling or prostitution. However, unlawful business can also include uses for which the unit is not properly zoned or licensed. For example, if your tenant rents a 1-bedroom apartment and turns it into a restaurant, that may not be criminal or specifically against the terms of the lease, but it would constitute “unlawful business,” and so you could evict that tenant for committing waste and nuisance as described in this section.

Kind of Notice Required for Tenant’s Waste, Nuisance, Minor Criminal Acts, or Unlawful Business: 3-day notice to vacate

You can download our 3-day notice to pay or vacate form below, or you can use your own.

You can think of the 3-day notice for waste or nuisance as a 3-day notice to pay or vacate without the option to pay. When your tenant commits waste, nuisance, minor criminal acts, or unlawful business, you are not required to give the tenant an opportunity to cure. You can issue this notice and then proceed with an eviction if your tenant fails to vacate in 3 days.

Note that if your tenant commits or permits gang-related activity, then you do not need to issue them a 3-day notice to vacate (as described immediately below).

IV. Fourth Reason to Terminate Tenancy: Tenant commits a serious criminal act, or commits or permits drug or gang-related activity on the premises

If your tenant commits a serious criminal act with a deadly weapon,  or commits or permits drug or gang-related activity on the premises, then you can terminate the tenancy and proceed with an unlawful detainer action without serving any prelawsuit unlawful detainer notice per RCW 59.18.130(9) and RCW 59.12.030(7). We call these “no-notice” evictions.

Not all criminal acts, drug activity, or gang involvement is serious enough to allow eviction without notice. However, if a tenant’s behavior does fit the below definitions, it is important to proceed with an unlawful detainer action as quickly as possible. If a tenant is involved in gang-related activity and you fail to file an unlawful detainer action, RCW 59.18.510 provides an opportunity for neighbors and other tenants impacted by the gang-related activity to file their own eviction action against the problem tenant. Likewise, RCW 59.18.352 provides innocent tenants the right to leave if a criminal tenant threatens them with a firearm or other deadly weapon. And you may also have civil liability to your innocent tenants.

No-Notice Eviction for Drugs-Related Activity

Nearly any kind of drug-related activity allows you to evict a tenant without notice. Possession, use, or sale of controlled substances are each enough on their own. To view a complete list of the kinds of drug offenses that warrant eviction, click through the links at RCW 59.18.190(3).

No-Notice Eviction for a Criminal Act Involving a Deadly Weapon

The limited kinds of criminal act that allow for no-notice eviction are those that  set out in RCW 59.18.130(8). To qualify for a no-notice eviction under that statute, the criminal act must:

  • (a) Be imminently hazardous to the physical safety of other persons on the premises; AND
  • (b)(i) Entail physical assaults upon another person which result in an arrest; OR
  • (b)(ii) Entail the unlawful use of a firearm or other deadly weapon as defined in RCW 9A.04.110 which results in an arrest, including threatening another tenant or the landlord with a firearm or other deadly weapon under RCW 59.18.352.

Notice that the bar is fairly high here. To qualify for a no-notice eviction under this definition, the physical safety of others must be threatened, the incident must result in the problem tenant’s arrest, and the incident must involve the physical assault of another person or use of a deadly weapon. Therefore, a mere fist fight probably would not constitute grounds to evict without notice.

No-Notice Evictions for Gang-Related Activity

Likewise, the definitions of “gang” and “gang-related activity” are set out in RCW 59.18.030(11) and (12) as follows:

  • (11) “Gang” means a group that: (a) Consists of three or more persons; (b) has identifiable leadership or an identifiable name, sign, or symbol; and (c) on an ongoing basis, regularly conspires and acts in concert mainly for criminal purposes.
  • (12) “Gang-related activity” means any activity that occurs within the gang or advances a gang purpose.

These definitions are not meant to be construed broadly. The legislature clarified in RCW 59.18.500 that, “[i]n determining whether the tenant’s activity is the type prohibited under RCW 59.18.130(9) (gang-related activities), the court should consider the totality of the circumstances, including factors such as whether there have been numerous complaints to the landlord, damage to property, police or incident reports, reports of disturbance, and arrests.”

V. Fifth Reason to Terminate Tenancy: One party chooses not to renew the tenancy

When a tenancy is month-to-month (which often happens automatically after the one-year term of the lease has ended), either you or the tenant can choose not to renew the tenancy. If either of you provides sufficient notice of non-renewal, then the tenancy will terminate at the end of the term.

Kind of Notice Required for When Landlord Chooses not to Renew: 20-day notice to terminate tenancy

You can download our 3-day notice to pay or vacate form below, or you can use your own.

20-days’ written notice of your intention not to renew is usually sufficient. RCW 59.18.200. The landlord does not have to provide any reason for this notice, and therefore the 20-day notice to terminate tenancy is sometimes also known as the 20-day notice of non-renewal, or as a “no-cause” notice.

You can use a 20-day notice in the vast majority of cases where you need to end a periodic tenancy, which makes it very handy. However, there are some caveats:

  • It is illegal to use the no-cause notice to discriminate or retaliate against a tenant.
  • A 20-day written notice is not sufficient for all tenants in all municipalities. For example, if your tenant is disabled in a way that makes it difficult for them to move out, they may be entitled to a reasonable accommodation under federal, state, or local fair housing laws (e.g. the Fair Housing Act).
  • Certain municipalities may extend the required no-cause notice period beyond 20 days or require some justification for refusing to renew your tenant’s lease. For example, Seattle requires that you have “just cause” to evict any tenant, even if their lease is up.

VI. Sixth Reason to Terminate Tenancy: The lease expires naturally

As with other contracts, leases can end naturally after a set period of time. This set period is known as the lease’s “term” (not to be confused with the “terms and conditions” of a contract). If the lease’s term ends and does not automatically renew, the tenant will no longer be entitled to possess the premises, and you can move forward with the eviction process if the tenant chooses to “hold over” (i.e. stay on after the term has expired).

However, in practice it is fairly uncommon for a residential lease to expire after a set period of time. This is for two main reasons:

First, the vast majority of residential leases are written to provide for a one-year term, and then automatic month-to-month renewal of the tenancy.

Second, if your lease is silent regarding the terms of renewal, RCW 59.18.200(1)(a) provides for automatic renewal of the lease for the duration between rental payments (usually monthly). In other words, if your lease does not specify the terms of renewal, and neither party provides notice that they intend not to renew (more on this below) then the lease will automatically renew for one payment period, which is usually a month.

Thus, the only way that your lease will expire naturally is if it explicitly states that it does not renew after the initial term. This is fairly rare in residential leases.

EMAIL ATTORNEY TERRY BRINK

Step 2: Serve the relevant prelawsuit unlawful detainer notice

If you have a reason to evict your tenant, and you have prepared the appropriate notice, then the next step is to serve that notice. In this section, we will explain the steps involved in serving an unlawful detainer notice. These steps are the same regardless of the kind of prelawsuit unlawful detainer notice you are serving.

Note: If your tenant’s lease expired, or your tenant was involved in gang-activity as defined above, then you can skip this step and move directly to filing a summons and complaint as described in Step 4: Eviction Summons and Complaint.

Warning: Though these three documents only need to “substantially conform” with the “form and content” requirements explained in Step 1 above, they must “strictly comply” with the below “time and manner” requirements for serving the documents. Truly v. Heuft, 138 Wn. App. 913 (2007). In other words, some drafting errors may be excusable, but errors in service are not. A good tenant attorney will seize on any minor flaw in the method of service to invalidate notice and get the case delayed or dismissed.

When should you serve the prelawsuit unlawful detainer notice?

Being inconsistent with enforcement sends a message to tenants that the landlord is either too distracted or too disorganized to keep tabs on their property. Worse yet, a court could potentially interpret chronically inconsistent enforcement as a waiver of the provisions that have gone unenforced. In contracts as in life: if you don’t use it, you lose it.

Therefore, you should almost always serve the following notices as they become applicable: 3-day notice to pay or vacate; 10-day notice to  comply or vacate; and 3-day notice to vacate. There is no waiting period for these notices; you can serve them the day of the violation. The sooner you serve them, the sooner you can either bring your problem tenant into conformity or proceed with an eviction.

However, in contrast to the other notices, there is usually nothing to be gained from issuing a 20-day notice to terminate the tenancy early. Service must be effective at least 20 days prior to the end of the rental period (which is usually the end of each month). 20-day notices do not become effective any earlier if they are served earlier; the earliest they can be effective is the end of the rental period.

Therefore, we usually serve our 20-day notices about 22 days before the end of the month, since service by mail adds a day to the effective service date, and the actual date of receipt does not count (more on how to count time when mailing notices below).

Do you have to hire someone to serve the prelawsuit unlawful detainer notice?

No. Though serving the prelawsuit unlawful detainer notice can be procedurally tricky if you’re doing it for the first time, anyone is allowed to serve the notice—even the landlord or property owner. However, when serving a Summons and Complaint (Step 8 below), an adult other than the plaintiff must serve the tenant.

How to serve the prelawsuit unlawful detainer notice

Serving an unlawful detainer notice is trickier than you might think. RCW 59.12.040 describes the process as follows:

  1. Personal service: Hand a copy of the notice to each tenant.
  2. Substituted personal service:
    1. Hand a copy of the notice to a person of suitable age and discretion who resides in the tenant’s unit AND
    2. mail a copy of the notice to the tenant’s address.

If and only if you knocked on the tenant’s door but nobody answers, the law permits service by posting and mailing:

  1. Posting and mailing:
    1. conspicuously post the notice on the tenant’s door AND
    2. mail a copy of the notice to the tenant’s address.

Notes on Substituted Personal Service

For substitute service, you must leave the notice with someone of “suitable age and discretion” who resides in the tenant’s unit. But how old is “suitable age”? How discrete is “suitable discretion”? What does it mean to “reside” in a unit?

Age: The threshold is somewhere between 12 and 15 years old. In other contexts, the Washington State Supreme Court has concluded that a 15-year old was of suitable age and discretion to receive service. Miebach v. Colasurdo, 685 P.2d 1074, 102 Wn.2d 170 (Wash. 1984). The court has also decided that “[a] 12-year-old may not be someone of suitable age and discretion,” and noted that old statutes on substitute service set 14 years old as the threshold. Sheldon v. Fettig, 919 P. 2d 1209, 1215 (Wash 1996). It’s better to err on the side of caution and make sure not to serve anyone below the age of 15.

Discretion: As long as the recipient of service is of sufficient age and is not mentally handicapped, courts do not make serious enquiries into the discretion of the recipient. In other contexts, the court found the 15 year-old in Miebach to be of suitable discretion even though the court contradictorily described her as both a “troubled and rebellious child, whose academic achievements were below the level of [her] school grade …” and as “talented, familiar with the court system, [with an] appreciation for the consequences of violating the law.” Miebach v. Colasurdo, 685 P.2d 1074, 102 Wn.2d 170 (Wash. 1984). In most other cases involving substituted service on a minor, the court makes no reference to the discretion of the recipient.

Residing therein: Even though RCW 59.12.040(2) does not explicitly state the “residing therein” requirement, RCW 59.12.040(3) implies it. In other contexts, the Washington State Supreme Court has determined that the recipient of service must “actually [] liv[e] in the particular home” and that mere presence in the home is not enough. Salts v. Estes, 943 P.2d 275, 133 Wn.2d 160, (Wash. 1997).

Dealing with unclear cases: If you’re concerned that the substituted personal service you made does not satisfy the above requirements, it is probably best to also perform service by posting and mailing. But do not forego the substituted personal service! If you forego substitute personal service and a court decides you could have performed it, that would likely invalidate the service by posting and mailing, because posting and mailing is only allowed when personal and substitute personal service are impossible.

Tips for Mailing the Notice

  • It’s not enough to place a notice in your tenant’s mailbox; the law requires you to actually mail a copy of the notice via the US Postal Service.
  • Make sure to get a “certificate of mailing” from the post office to prove that you actually sent the notice. This can be handy in court if your tenant tries to claim that you never actually sent the notice.
  • Avoid sending the notice via certified or registered mail for several reasons. First, Washington State only requires regular first-class mail, and certified and registered mail are more expensive. Second, certified and registered mail require the recipient to sign for the letter, which your tenant (the recipient) probably will not be inclined to do. If your tenant rejects delivery, the court may determine that service was not effective, in which case you would have to reissue your notice and your tenant would have another opportunity to pay, comply, or vacate.

Tips for Posting the Notice

  • The notice must be conspicuously posted on the door; it cannot be slid under the door or through a mail slot.
  • Tape the notice to the door with the letters out so that the purpose of the notice is immediately obvious.
  • Take a picture of the notice once you’ve posted it, just in case you need to prove in court that it was posted properly.

How time is calculated for the purposes of service

  • The lease controls; if the lease allows for shorter or longer periods, or for other different rules, then those will usually control rather than the defaults set out below.
  • The day you serve the notice does not count. In other words, if you personally serve a 3-day pay or vacate notice on a Monday, that Monday does not count towards the statutory waiting period; your tenant’s deadline for paying/complying/vacating is midnight on Thursday.
  • If you mail the notice, one additional day is added to the earliest possible commencement day of your unlawful detainer action. For example, if you mail a 3-day pay or vacate notice on Monday, your tenant has until midnight Friday to pay/comply/vacate. RCW 59.12.040.
  • Holidays and weekends count. In other words, you do not have to add a weekend or legal holiday on to the statutory waiting period. For example, if you personally serve a 3-day pay or vacate notice on Friday, your tenant’s deadline will be midnight Monday. Christensen v. Ellsworth, 162 Wn.2d 365 (2007); CR 6(a).
  • 20-day notices must be served at least 20 days before the end of the rental period. RCW 59.12.030(2).
  • The mailbox rule applies to payment of rent by mail. If your lease allows the tenant to deliver the rent by mail, then the “mailbox rule” makes payment effective as soon as your tenant has dropped the rent in the mailbox. However, the tenant will have to show independent proof of a postmark or evidence other than the “self-serving testimony as to actual mailing.” Olson v. The Bon, Inc., 144 Wn.App. 627, 183 P.3d 359, (Div. 3 2008).

Step 3: Evaluate your tenant’s response to the prelawsuit unlawful detainer notice

Note: This section only applies if you have issued a prelawsuit unlawful detainer notice. If your tenant’s lease expired, or your tenant was involved in gang-activity as defined above, then you can skip this step and move directly to hiring an attorney, moving onto Step 4.

After you’ve correctly served the appropriate prelawsuit unlawful detainer notice, your tenant will have a chance to conform to the notice. The kind of notice you have sent will dictate the responses that are in conformity with the notice:

  • 3-day notice to vacate or 20-day notice to terminate the tenancy: the tenant can only conform by vacating.
  • 3-day notice to pay or vacate: the tenant can conform by either paying or vacating.
  • 10-day notice to comply or vacate: the tenant can conform by either complying with the lease or vacating.

In this section, we will walk through a number of possible tenant responses.

What if you tenant fails to conform to the prelawsuit unlawful detainer notice at all?

If your tenant does not conform to the notice, it’s time to move forward with an unlawful detainer action. You can skip the rest of this section and move on to hiring an attorney or otherwise move on with the eviction process. See Step 4.

However, if your tenant does conform to the notice, or partially conforms to the notice, then you may not be able to move forward with the unlawful detainer action.

What if your tenant fully vacates within the compliance period?

Most landlords consider this a good outcome because it will save them the expense and hassle of litigation. If your tenant vacates after you’ve served your notice, then you cannot proceed with an unlawful detainer action. However, your tenant will still be liable for any unpaid rent, damage, or fees associated with vacating without notice, and you can pursue those via a civil action (though practically speaking, filing such an action may be cost prohibitive, and it is often difficult to actually recover this money from tenants—especially tenants who already have difficulty paying their rent).

What if your tenant completely vacates after the compliance period has ended?

If your tenant completely vacates after the compliance period but before you’ve filed your unlawful detainer action, then you cannot file an unlawful detainer action because there’s nobody “unlawfully detaining” the unit. However, you can still file a civil action for damages if applicable.

If your tenant completely vacates after you’ve filed your unlawful detainer action, but before the show cause hearing , then the unlawful detainer action is moot because there is nobody to eject. However, the landlord can convert the unlawful detainer action into a civil suit for damages where applicable. Munden v. Hazelrigg, 105 Wn. 2d 39, 45-6, 711 P.2d 295, 298 (1985).

3-day pay or vacate notices only

What if the tenant fully pays within the compliance period?

You must accept the tenant’s rent and you cannot terminate the tenancy.

What if the tenant tenders full payment after the compliance period and you accept it?

You are not required to accept late payment. However, if you do accept late rent from your tenant in the full amount of what they owe, then you have typically waived your right to terminate the tenancy and so your tenant is still entitled to possess the premises as described in their lease. Therefore, you will have no legal basis to evict the tenant unless the tenant breaches the lease again.

In the words of the Washington State Supreme Court:

[W]hen the landlord accepts the rent, with knowledge of prior breaches, thereby waiving his right to declare a forfeiture of the lease because of such prior breaches, he also waives his right to rely on such prior breaches as a basis for setting in motion his statutory remedy of unlawful detainer. He must wait until the old breaches continue or new ones occur.

Wilson v. Daniels, 31 Wn.2d 633, 644 (1948).

What if the tenant tenders full payment to you after the compliance period and you don’t accept it?

In many cases, the problem tenant will drop off or mail a late rent check after the 3-day compliance period has already elapsed. If you choose not to accept late rent, you can terminate the tenancy and move forward by filing an unlawful detainer action. However, you must be careful not to legally “accept” the rent by accident because, if the court believes that you have “accepted” rent from the problem tenant, then you cannot terminate the tenancy.

This situation is a bit of a gray area, and there are no statutes directly on point. In our experience, there are two viable options to avoid “accepting” the rent in the eyes of the court:

  1. You can quickly send the check back (preferably via regular first-class mail with a “certificate of mailing”); or
  2. You or your attorney can sign over the delinquent rent check into the registry of the court.

The benefit of option 1 is that, by returning the check, there is no way that the tenant can argue that you accepted the rent. The downside is that you lose access to that money in the event you win your case. It is often difficult to recover back-rent from problem tenants, so if you return their check, you may never have access to that money again.

The benefit of option 2 is that, if you win your case, you will still have access to the late rent that you are owed. The downside is that entering the late rent directly into the registry of the court is irregular, and may not be a viable option in all municipalities. Court staff may not know how to process your request (we have had this experience in Pierce County) and certain judges may think that depositing the rent into the court’s registry constitutes acceptance (we have also had this experience in Pierce County). Depending on the amount of rent at stake, it may be more trouble than it’s worth.

Whatever you do, avoid depositing the rent into your own account if you intend to proceed with the eviction.

What if your tenant tenders partial payment?

You are not required to accept partial payment, but it may be in your best interest to do so. Unlike accepting full rent, accepting partial payment does not automatically waive your right to terminate the tenancy. Hwang v. McMahill, 15 P. 3d 172, 177 (2000).

However, a savvy defense attorney could claim that you accepted partial payment as an accord and satisfaction of your tenant’s debt, or as part of a payment plan. If the court thinks you accepted partial payment for those reasons, then it will rule that the tenancy was not terminated, which will prevent you from proceeding with an unlawful detainer action.

Therefore, if you intend to evict your tenant, it may be simpler to either refuse to accept partial payment, or to enter that rental payment into the registry of the court once you have filed your eviction action.

Pause: Do I have to hire an attorney? If so, when?

After the first three steps, things start to get pretty complicated. It is usually at this point that landlords choose to hire an attorney to carry the case to the finish line. If you are located in the South Sound area and interested in help with your eviction, we would be happy to assist. Call us at 253-620-6666 or email us online today.

However, you may not be legally required to hire an attorney. If you personally own the subject rental property, you are allowed to represent yourself in an unlawful detainer action. But, be aware that the nuanced steps involved (described below) can be fairly daunting for those unfamiliar with the law.

On the other hand, if the subject rental property is owned by a corporation, LLC, or other artificial entity, then you are legally required to hire an attorney to represent the corporation in the unlawful detainer action. Lloyd Enterprises, Inc. v. Longview Plumbing & Heating Co., Inc., 91 Wn.App. 697, 958 P.2d 1035, (Div. 1 1998). Why? While there really isn’t a great common-sense reason, the legal rationale is that representing a corporation is not technically self-representation as allowed by the 6th Amendment—even if you own 100% of the corporation.

The good news is that, if you try to represent your corporation without a license to practice law, the court will likely continue (that is, delay and reschedule) the case to give you time to hire an attorney and cure related defects in your summons and complaint. Biomed Comm, Inc. v. State Dept. of Health Bd. of Pharmacy, 146 Wn.App. 929, 193 P.3d 1093, (Div. 1 2008).

Step 4: Strategize about how to initiate your unlawful detainer lawsuit

After you have correctly issued a prelawsuit unlawful detainer notice for a legally valid reason as explained above, the next phase of the process involves initiating your lawsuit with the goal of obtaining a writ of a restitution. As described in more detail below, a writ of restitution is the legal document that commands the sheriff to eject your tenant and restore you to possession of the premises pursuant to RCW 59.18.312.

Initiating an unlawful detainer lawsuit usually involves serving the following documents on the tenant:

  • Summons and complaint (always filed and served together)
  • Notice for nonpayment of rent (optional)
  • Order to show cause

However, you can file and serve these documents in different sequences depending on the strategy you are trying to pursue.

The two main strategies

The following strategies apply to any unlawful detainer action, including those dealing with nonpayment of rent. Below, I go into detail regarding the benefits and downsides of each strategy.

Note: We generally go with the “cheaper but potentially slower” option unless we’re certain that the tenant will respond or removing the tenant as speedily as possible is our main priority.

I. Cheaper but potentially slower: Serve an unfiled summons and complaint by itself prior to sending the order to show cause

Note: This strategy is not available in most other states or federal jurisdictions, but it is legal in Washington.

Timeline

  • Serve the tenant with an unfiled summons and complaint.
  • Wait for the tenant’s reply. The deadline for tenant’s reply can be as few as 5 days after service of the summons. RCW 59.12.080.
  • If tenant doesn’t answer the summons: proceed with default. RCW 5.12.120.
  • If tenant answers the summons: File and serve the summons and complaint along with an order to show cause and set the show cause hearing date. The show cause hearing date can be set 7-30 days from the date of service of the order to show cause—but it’s usually set closer to 7 as the court’s schedule permits. RCW 59.18.370.
    • Then, proceed with the show cause hearing.
    • Default tenant if they do not show up.

Benefits to “cheaper but potentially slower”:

  1. Save filing fee if your tenant fails to timely answer: If your tenant fails to timely answer the summons and complaint within the 7-day time limit, then you can default the tenant by filing the summons and complaint later along with an affidavit stating that the defendant failed to answer. This will save you some court costs and filing fees.
  2. Gives tenant one last chance: Normally, when a lawsuit is filed against a person in Washington State, that lawsuit becomes part of their permanent record. By serving an unfiled summons and complaint, you can show your tenant that you’re serious without making it harder for them to find a new place to rent.

Downsides to “cheaper but potentially slower”:

  1. Wastes time and costs the same amount if your tenant does timely answer: If your tenant does timely answer, you will still have to file the complaint the normal way when you set a show cause hearing, which will force you to spend the same filing fee you avoided by sending an unfiled complaint. Additionally, if you tenant timely answers, you will have to schedule the show cause hearing a minimum of 7 days out. RCW 59.18.370. This will result in a total ~2-week wait time you wouldn’t have under Strategy II.
  2. Duplicate service costs if tenant timely answers: If the tenant timely answer, you will have to serve the tenant with an order to show cause. This will incur additional service costs that are not present if you serve the summons and complaint along with the order to show cause per Strategy II below.

II. Pricier but potentially faster: Serve a filed summons and complaint along with the order to show cause

The benefits and downsides to this strategy are basically the opposite of Strategy I above.

Timeline

  • File and serve the summons, complaint, and the order to show cause at the same time. The show cause hearing date can be set 7-30 days from the date of service of the order to show cause—but it’s usually set closer to 7 as the court’s schedule permits. RCW 59.18.370.
  • If tenant doesn’t answer the summons: proceed with default
  • If tenant answers the summons: Proceed with the show cause hearing.
    • Default tenant if they don’t show up.

Benefits of “pricier but potentially faster”:

  • Potentially saves time if the tenant timely responds: By serving both together, you no longer have to wait for both the summons and complaint 7-day waiting period and the order to show cause 7-day waiting period. Instead, both these waiting periods elapse concurrently. Thus, you may be able to procure a writ of restitution to recover possession of the property in ~1 week rather than ~2 weeks. However, this waiting period difference will only matter if the tenant timely answers. If the tenant does not timely answer, this strategy would take the same amount of time as Strategy I because, either way, you will be obtaining a default.
  • No duplicate service cost if defendant timely responds: If the tenant timely responds, you will not have to serve the tenant with an order to show cause.

Downsides of “pricier but potentially faster”:

  • Wastes filing fee and court costs if the tenant does not answer: If your tenant doesn’t answer, you can typically obtain a default judgment in your favor without paying to set a show cause hearing under strategy I above. However, if you proceed under Strategy II, you have already paid to schedule the show cause hearing so you cannot save the filing fees for that amount.

Optional strategy for nonpayment of rent only: RCW 59.18.375 notice of nonpayment

An RCW 59.18.375 notice of nonpayment is an optional notice that you can choose to send if at least one reason for your unlawful detainer action is a 3-day notice to pay or vacate.

Why send a notice of nonpayment if it’s optional?

The notice of nonpayment is another hurdle your tenant has to jump over; like the summons and complaint, your tenant must answer appropriately within 7 days (RCW 59.18.375(8)) or the court is required to issue you an immediate writ of restitution for the premises.

Even if the tenant does comply with the notice, that can be a good thing too, as described below.

How does a notice for nonpayment of rent work?

First, you correctly fill out a notice of nonpayment. Then, the defendant is required to provide one of the following answers per RCW 59.18.375(2):

  • pay the amount allegedly due into the registry of the court; or
  • submit to the court a written statement signed and sworn under penalty of perjury that sets forth legal or equitable reasons that the tenant does not owe you the rent you complained was deficient.

If the tenant takes option 1 (pay delinquent rent into the court’s registry), the tenant is additionally required to deliver written notice that the rent has been paid into the registry of the court via one of the methods outlined in RCW 59.18.375(5) within 7 days of service:

  • By delivering a copy of the payment notice or sworn statement to the person who signed the notice to the street address listed on the notice;
  • By mailing a copy of the payment notice or sworn statement addressed to the person who signed the notice to the street address listed on the notice;
  • By facsimile to the facsimile number listed on the notice. Service by facsimile is complete upon successful transmission to the facsimile number listed upon the notice; or
  • As otherwise authorized by the superior court civil rules.

Once the tenant has complied with the above, the rent will be safely stored in the registry of the court, which is like the court’s trust/escrow account. If you win the unlawful detainer action, you will be able to easily access the money in the registry, which saves you the trouble of trying to obtain and recover on a personal judgment against the defendant for the deficient rent. Even if you lose, you will likely be entitled to the rent in the registry because the tenant will owe it for the time that elapsed during the eviction proceeding.

If the tenant takes option 2 (submit a sworn statement that delinquent rent isn’t due), then the tenant must allege a legal or equitable defense or set-off arising out of the tenancy in their sworn statement. If the tenant’s sworn statement does not comply with this requirement and the 7-day response time limit has elapsed, then the defendants should be deemed not to have answered appropriately, and the court is required to issue you a writ of restitution.

When can you serve the notice of nonpayment?

The notice of nonpayment can be served along with a filed summons and complaint, between filing the summons and complaint and serving the order to show cause, or alongside the order to show cause. RCW 59.18.375(8). In other words, the only times you cannot serve the notice of nonpayment is before you have filed and served your summons and complaint, and after you have served the order to show cause.

How does the notice of nonpayment service timeline work with the two strategies above?

  1. Strategy I (cheaper but potentially slower): You cannot send a notice of nonpayment alongside an unfiled complaint because the notice of nonpayment directs the defendant to pay money into the court’s registry and the court will not have jurisdiction to accept that money until you have filed the summons and complaint. However, if your tenant responds to the summons and complaint, you can serve a notice of nonpayment prior to, or alongside, the order to show cause as long as the summons and complaint have been filed.
  2. Strategy II (pricier but potentially faster): You can send the notice of nonpayment immediately alongside the summons, complaint, and order to show cause. This will create a bundle of things for your tenant to deal with simultaneously and increase the possibility that the tenant fails to answer.

When must your tenant respond to the notice of nonpayment?

The tenant shall have no less than 7 days to respond to the notice of nonpayment. RCW 59.18.375 (7)(a). If the notice was served along with a filed notice and complaint, then the deadline for compliance must be the same as the date for responding to the summons and complaint. RCW 59.18.375(3).

Step 5: Draft Eviction Summons and Complaint

The summons and complaint must be served together. CR4(d)(1). This step will cover some tips on preparing your summons and complaint. Step 8 explains how to correctly serve the summons and complaint.

What to include in the summons

The purposed of the summons is to notify the defendant (here, your tenant) of an impending lawsuit and to explain the defendant’s options for responding. The summons should not contain any details about your case or any arguments.

To evict the kind of residential tenants covered in this guide (those who fall under the Residential Landlord Tenant Act), your summons must be substantially in compliance with the summons form set out in RCW 59.18.365. The form is fairly self-explanatory.

Beyond the form requirements from RCW 59.18.365, you should watch out for the following items when drafting a summons:

  • The summons must strictly comply with RCW 59.12.070 and RCW 59.12.080 including the specific date and time provisions for response, which is not sooner than 5 days from the date of personal service on defendant.
  • The summons must include your street address (not PO box) and if you have a fax machine, your fax number.

What to include in the complaint

The complaint is more complicated than the summons. A complaint is the initial document that you file with the court to begin a lawsuit, and its purpose is twofold: First, your complaint should demonstrate that the case you’ve filed in is the correct court to hear your case. Second, your complaint should provide adequate notice to your tenant of the claims you intend to bring against them.

To achieve these two main purposes, your complaint must state the following:

  • Names of parties, attorney (if any), and the court in which the case is being brought (probably Washington State Superior Court).
  • Nature of the action
    • This is like the title for the document, and should usually read something to the effect of, “Complaint for Unlawful Detainer.”
  • Language demonstrating jurisdiction
    • RCW 2.08.010 grants the Washington State Superior Court original jurisdiction over “all cases at law which involve the. . . possession of real property.”
  • Language demonstrating venue
    • RCW 2.08.210 specifies that “all actions for the recovery of the possession of. . . real estate[] shall be commenced in the county in which the real estate, or any part thereof, affected by such actions is situated.”
    • Likewise, RCW 4.12.010(1) specifies that actions “for the recovery of [and] for the possession of. . . real property” must be “commenced in the county in which the subject action, or some part thereof, is situated.”
  • Set forth all the facts on which relief can be sought. RCW 59.12.070
  • Causes of action and relief sought
    • Washington is a notice pleading state and merely requires a simple concise statement of the claim and the relief sought at a minimum. CR 8(a); Pacific Northwest Shooting Park Assn. v. City of Sequim, 158 Wn.2d 342, 144 P.3d 276, (2006). However, it is better to err on the side of including too much information rather than too little. Typically, we list out any potentially applicable claims we can think of (e.g. unlawful detainer, trespass, etc.), and then we write a conclusory statement claiming that defendant has met each element of each claim. After listing out the claims, we state out any potentially applicable relief we can think of (e.g. writ of restitution, damages, etc.).
  • Location of the premises.
    • RCW 59.12.070 requires that you “describe the premises with reasonable certainty.” There is no case law on point that clarifies exactly what this means. Similar language appears in the search warrant context, and Washington State courts have concluded that “it is not necessary for a warrant to contain a correct street address if the premises to be searched are otherwise sufficiently identified so as to enable officers to locate them with certainty.” State v. Trasvina, 16 Wn.App. 519, 557 P.2d 368, (Div. 1 1976).
  • Amount owed (for non-payment cases). RCW 59.12.070.
  • Your signature and address (or if you are an attorney, your signature, address, and bar number). CR11.
  • The date. CR11.
  • Allege service of the prelawsuit unlawful detainer notice (if prelawsuit unlawful detainer notice was required).

Step 6 (optional): Fill out Notice for Nonpayment of Rent

RCW 59.18.375 does a great job of explaining the correct way to format and fill out a notice of nonpayment. We have nothing to add.

Step 7: Draft Both the Motion and Order to Show Cause

The Motion to Show Cause and the Order to Show Cause are two different documents; the motion is a request that the court grant the order, and the order merely requires the tenant to come to the courthouse for the show cause hearing.

The court does not require a specific form for either the Motion or the Order to Show Cause. However, our motions and orders usually follow the format in the downloadable examples below.

Step 8: Serve the Summons, Complaint, Notice of Nonpayment, Notice of Default and/or an Order to Show Cause

The only one of these document that does not need to be officially “served” is the Order to Show Cause, which can be sent via regular first class mail (just make sure to get a certificate of mailing). However, it’s also fine to serve the Order to Show Cause as provided below. Sometimes it’s easier to serve the Order to Show Cause alongside other documents, depending on what strategy you’re pursuing.

The service requirements for the Summons, Complaint, Notice of Nonpayment, and Notice of Default is similar to the service requirements for a prelawsuit unlawful detainer (see Step 2). The “notes” and “tips” in that section also apply here, unless otherwise contradicted below. However, the service requirements for these documents is slightly more complicated, so pay attention to this section.

Note: the order in which you serve these documents is critical! Refer to Step 4 for how service of one document can affect the requirements for the service of other documents.

Word of caution: You only need to “substantially conform” with the “form and content” requirements of these four documents. In contrast, you must “strictly comply” with the “time and manner” requirements below. Truly v. Heuft, 138 Wn. App. 913 (2007).In other words, some drafting errors may be excusable, but errors in service are not. A good tenant attorney can and will seize on any minor flaw in the method of service to invalidate notice and get the case delayed or dismissed.

How to serve your tenant with a summons, complaint, notice of nonpayment and/or the order to show cause

Serving an unlawful detainer notice is trickier than you might think. We highly recommend hiring a legal messenger (like ABC Legal) to perform this work for you, even if you are trying to otherwise handle the legal side of the eviction yourself.

However, if you’re looking for a challenge, the process is set out in general terms under RCW 59.18.055, which provides for three kinds of service:

  1. Personal service: a non-party older than 18 must hand copies of the document to the tenant(s). CR4(c).
  2. Substituted personal service:
    1. A non-party older than 18 must hand copy of the document to a person of suitable age and discretion who resides in the tenant’s unit. CR4(c). AND
    2. mail a copy of the notice to the tenant’s address.

In the event that the plaintiff is unable to effect service of the summons on the defendant(s) after an exercise of “due diligence,” the court may authorize service by posting and mailing if it sees fit to do so. As proof of due diligence on your part, the court will require both an affidavit of attempted service that describes all unsuccessful efforts in obtaining service, and an affidavit from you or your attorney that states your (or their) belief that tenant cannot be found (you are not required to show that the tenant is actually evading service). RCW 59.12.085(2).

  1. Posting and mailing:
    1. Conspicuously post the notice on the tenant’s door. RCW 18.055(1)(a). AND
    2. Mail a copy of the notice to the tenant’s address via certified and regular mail. RCW 18.055(1)(b); RCW 59.12.085(2)(b) AND
    3. Note a 9-day minimum return date on the notice per RCW 18.055(1)(b); RCW 59.12.085(2)(a).

Note: If posting and mailing used to serve the tenant, you cannot recover a money judgment. RCW 59.18.055(1)(b); RCW 59.18.055(3). Also, no matter how you serve the notice, you must keep an affidavit of service on file if you obtain a default judgment. CR55(b).

Step 9: Evaluate Your Tenant’s Response (Again)

Depending on the service and filing strategy you chose in Step 4, you should be waiting for a response to at least one of the following:

  1. Summons and complaint (always filed and served together)
  2. Notice for nonpayment of rent (optional)

In this section, we will explain how to assess and react to various tenant responses.

What is the correct way to answer a summons and complaint?

The correct way for your tenant to answer a summons and complaint is with a “notice of appearance.”

If your tenant does not correctly serve a “notice of appearance,” then you can easily obtain a default judgment in your favor and a writ of restitution that orders the sheriff to help you take back the premises. However, if your tenant does correctly serve a notice of appearance, then you must proceed to a show cause hearing.

What qualifies as a “notice of appearance”?

The purpose of a “notice of appearance” is to provide the plaintiff with actual notice that the defendant plans to appear in court to defend herself.

The notice of appearance can be effective even if it’s informal in nature. State ex rel. Trickel v. Superior Court, 52 Wash. 13, 100 P. 155 (1909). However, defendants must “substantially comply” with the notice requirements set out in RCW 4.28.210 and CR 4(3): “A notice of appearance, if made, shall be in writing, shall be signed by the defendant or the defendant’s attorney, and shall be served upon the person whose name is signed on the summons.”

The exact threshold for “substantial compliance” is unclear from the case law. However, the Washington courts have clarified that “parties cannot substantially comply with the appearance rules through pre-litigation contacts” (e.g. a phone call, text message, email, etc.) alone. Morin v. Burris, 160 Wn.2d 745, 161 P.3d 956 (2007). In other words, defendants, “must do more than show intent to defend; they must in some way appear and acknowledge the jurisdiction of the court after they are served and litigation commences.” Id. “merely showing intent to defend before a case is filed is not enough to qualify as an appearance in court.” Id.

How must the tenant serve the notice of appearance?

Your tenant can serve a notice of appearance in the following ways as described in RCW 59.18.365(2) by the date indicated on the summons (response date can be set from 7-30 days out):

  1. By delivering a copy of the answer or notice of appearance to the person who signed the summons at the street address listed on the summons;
  2. By mailing a copy of the answer or notice of appearance addressed to the person who signed the summons to the street address listed on the summons;
  3. By facsimile to the facsimile number listed on the summons. Service by facsimile is complete upon successful transmission to the facsimile number listed upon the summons;
  4. As otherwise authorized by the superior court civil rules.

Note once again that mere pre-litigation contact is not enough; the defendant must serve you something in writing.

What is the correct way to answer a notice for nonpayment?

This information also appears above in the introduction of the notice of nonpayment. Then, the defendant is required to provide one of the following answers per RCW 59.18.375(2):

  1. pay the amount allegedly due into the registry of the court; or
  2. submit to the court a written statement signed and sworn under penalty of perjury that sets forth legal or equitable reasons that the tenant does not owe you the rent you complained was deficient.

If the tenant takes option 1 (pay delinquent rent into the court’s registry), the tenant is additionally required to deliver written notice that the rent has been paid into the registry of the court via one of the methods outlined in RCW 59.18.375(5) within 7 days of service:

  1. By delivering a copy of the payment notice or sworn statement to the person who signed the notice to the street address listed on the notice;
  2. By mailing a copy of the payment notice or sworn statement addressed to the person who signed the notice to the street address listed on the notice;
  3. By facsimile to the facsimile number listed on the notice. Service by facsimile is complete upon successful transmission to the facsimile number listed upon the notice; OR
  4. As otherwise authorized by the superior court civil rules.

Notice that these delivery methods are almost exactly the same as those required by the notice of appearance under RCW 59.18.365(2).

If the tenant takes option 2 (submit a sworn statement that delinquent rent isn’t due), then the tenant must allege a legal or equitable defense or set-off arising out of the tenancy in their sworn statement. If the tenant’s sworn statement does not comply with this requirement and the 7-day response time limit has elapsed, then the defendants should be deemed not to have answered appropriately, and the court is required to issue you a writ of restitution.

What if your tenant fails to respond correctly?

If your tenant fails to respond, you can move for a default judgment.

What if your tenant responds correctly?

If your tenant appropriately responds, you have to proceed with a show cause hearing.

Step 10: Motion for Default

A “default judgement” is an automatic judgment in favor of the plaintiff (here, the landlord) that occurs as a result of the defendant (here, the tenant) failing to appropriately respond to one or more important documents that stem from the plaintiff’s lawsuit.

The idea behind default judgments is that, if a defendant fails to respond within the set time, the defendant must not be interested in contesting the allegations against them. Therefore, the court will grant a default judgment in favor of the plaintiff. Importantly, a default decision is not “on the merits” of the case—even a plaintiff with a terrible case can win a default judgment if the defendant fails to answer.

When can you obtain a default judgment against your tenant?

In an unlawful detainer action, tenants can only be “defaulted” for failing to respond to the following two documents:

  1. Summons
  2. Notice for nonpayment of rent

When your tenant has failed to respond appropriately to either document, obtaining a default judgment should be almost automatic. See RCW 59.12.120. Read Step 9 to learn more about answer requirements and whether your tenant has met them.

Alternatively, you can also default the tenant if they have answered appropriately but then failed to attend the show cause hearing.

Is there any rush to filing a motion for default?

Yes. Generally, it’s best to file a motion for default as soon as the tenant has failed to meet their response deadline because the defendant is allowed to respond to any pleading or otherwise defend at any time before a motion for default (and possibly supporting affidavit) are filed.

Note: if more than one year has elapsed since you issued the summons, then you must conform with the more rigorous notice requirements and a different timeline than indicated below. CR55(f)(1). However, this rarely comes up in evictions since landlords usually cannot get the tenant out of the unit unless they follow through and get a judgment and writ.

Do you need to provide the tenant with notice of default?

You only need to provide the tenant with a notice of default if they have “appeared” before the court prior to you filing of the notice of default. CR55(a)(3). Virtually any formal interaction with the court on the part of the defendant will constitute an “appearance”:

A defendant appears in an action when he or she answers, . . makes any application for an order therein, or gives the plaintiff written notice of his or her appearance. RCW 4.28.210.

As discussed in Step 9, a tenant must correctly answer the summons with a notice of service to avoid default. However, even if the tenant served you an inadequate answer, that will still constitute an appearance that entitles the tenant to notice of the default hearing.

Likewise, if you have issued a nonpaying tenant both a notice of nonpayment and a summons, and the tenant has only correctly answered one but not the other, then you will have to issue your tenant a notice of default. Fortunately, there will be no way for the tenant to stop a writ from being issue if the tenant has not conformed to the response requirements under RCW 59.18.375.

How to fill out and serving your notice of default

The notice of default does not have to be fancy or formal (unless more than a year has elapsed since you sent the summons). The only requirements are as follows:

  1. It must be written. CR55(a)(3).
  2. It must be served as described in Step 8.

Timing

The notice of default and any supporting affidavit must be served at least 5 days before the hearing on the motion. CR55(3).

What documents do you need to initiate a default motion?

You will usually need the following at a minimum:

  • Motion for default, including:
  • An explanation of the relevant facts that entitle you to the default (we like to include this in the motion for default itself, though some people make it an accompanying affidavit)
    • Usually the most important thing is to include a detailed explanation of the timeline. Include every notice, every deadline, and an explanation of how the tenant failed to conform with their answer requirement.
  • Order of default for the judge to sign
  • Proof of service of summons and complaint on file with the court. CR55(b)(4).
  • State whether the tenant and tenant’s dependents are service members. RCW 38.42.050.

Typically, you can present these documents to the judge presiding over ex parte motions and they will sign them after a few questions back and forth.

However, there may be certain judges or jurisdictions that require a more formal recitation of each element above, and/or a recitation of subject matter jurisdiction and personal jurisdiction over the defendant, among other things.

What damages can you ask for in a default judgment?

Writ of restitution: You should request a writ of restitution, since that is the only legal way to eject the tenant and restore you to possession of the premises.

Money damages: You should also usually request any money damages you have incurred due to the tenant’s behavior. This is why it’s usually a good idea to include a full accounting of all of the expenses you have incurred in your motion for default. That includes late rent, damage to property, late utilities, and even “reasonable attorneys’ fees.” CR55(b)(1). Typically, the court will give you whatever money damages you cited in the motion for default, within reason per CR55(b)(1). However, in some cases, the court may decide to cut down the actual attorney’s fees to an amount it deems more reasonable.

Exception: if you used posting and mailing to serve your summons and complaint, you cannot recover a money judgment per RCW 59.18.055(1)(b). That means the only relief you can request in a default is a writ of restitution to restore you to possession of the premises.

Tenant’s Recourse: Motion to Set Aside Default Judgment

If the court grants your motion for default judgment, then your tenant can still move to rescind (i.e. set aside) the default judgment. However, many tenants do not know about this recourse. And even if they did, it is often impractical to make a motion to set aside because, once the writ of restitution is issued following default, the defendant may have as little as 4 days before the sheriff forcibly removes the tenant.

The court will only grant the motion to set aside, “for good cause shown and upon such terms as the court deems just.” CR55(c)(1). Washington courts have also decided that the lesser “substantial compliance” standard rather than the higher “strict compliance” standard applies to notice requirements when enforcing or setting aside default judgments. Morin v. Burris, 160 Wn.2d 745, 161 P.3d 956, (2007).

Practically speaking, it is rare for the court to set aside the default unless there is a serious defect in one of the documents above. For example, CR55(c)(2) specifically allows the court to set aside default judgments where venue was improper.

Even if the default judgement were set aside, the court would set a show cause hearing, and the tenant would still have to argue that they are not in unlawful possession of the premises.

Step 11: Show Cause Hearing

A show cause hearing is like an informal trial in the sense that both you and the tenant will have the opportunity to explain your sides of the case, and then the judge will make a decision. However, many of the formalities of real trial are suspended in the hearing setting.

Technically, the landlord has the burden of proof, and the standard of evidence is analogous to “probable cause.” This is a fairly low bar. In many cases, it may be enough to state the basis of your claim (e.g. nonpayment of rent, noncompliance with the lease, etc.) along with some key facts. In practice we have found that courts usually do not want a long explanation from the landlord unless the case is unusually complicated. Beyond that, arguing an unlawful detainer action is highly case-specific.

If you obtain a favorable judgment, the court will also issue you a writ of restitution per RCW 59.18.410.

If you lose the show cause hearing, you can have the judge set a trial date so you can continue to pursue the eviction in open court. RCW 59.18.380. However, this is usually not a cost-effective or practical option.

However, the judge can set a trial

If the judge determines that there is a dispute of material fact in the case, she may set your case for trial to sort out the factual matters. RCW 59.18.380. This is because the law only entrusts the court with “determinations of law,” so, if the parties have a serious factual agreement, the judge may decide that a trial is necessary to sort out the facts in dispute.

Step 12: Executing the Writ

Once the writ is issued, the only thing you have to contend with is the nitty-gritty of moving the tenant out.

It will usually take 4-10 days to move a tenant out once you have the writ. The sheriff will issue the writ to the defendant. RCW 59.18.390. This usually occurs the day after the judgment. The tenant then has three days to vacate the premises. If the tenant has not voluntarily vacated within those three days, the landlord or his attorney must contact the sheriff to schedule a physical eviction. Depending on scheduling, the sheriff may not schedule the physical eviction for 1-2 weeks.

It is the landlord’s responsibility to hire movers to remove the tenant’s property on the scheduled physical eviction date. The sheriff will oversee the move to “keep the peace,” but won’t actually help. When moving the tenant out, you and the sheriff must comply with all the requirements of RCW 59.12.

Tenant’s recourses

It is usually easier for the tenant to move on rather than continue to fight. Therefore, it is fairly uncommon to encounter the following tenant recourses. However, they’re worth a brief mention just in case.

Pay to stay—nonpayment cases only

If the judgment was ordered solely for nonpayment of rent, the tenant can stay the writ of restitution by paying the entire amount of rent due, and paying all reasonable damages assessed by the court (usually consisting of costs, utilities, attorney’s fees, etc.) in the form of a bond. RCW 59.18.380; RCW 59.18.390; RCW 59.12.100. The tenant must pay this bond within three days of issuance of the writ.

This rarely happens, since tenants who are deficient on their rent are usually short on cash, and so do not have the means to pay.

Appeal

Technically, the tenant has 30 days to appeal after issuance of the writ of restitution. To appeal the judgment, the tenant must pay all of the costs mentioned above in “pay to stay.” If the tenant has already moved out (including having been physical evicted) prior to filing the appeal, the tenant must be restored to the premises during the pendency of the appeal. RCW 59.12.220.

Appeals are rare, since they require the tenant to pay all the costs assessed against them, and also hire an appellate attorney (most free counsel available to tenants will not represent tenants at the appellate level).

Force you to store their junk

The tenant may force the landlord to store the tenant’s belongings by serving a written request on the landlord or landlord’s representative within 3 days of issuance of the writ of restitution. RCW 59.18.312(1). This is fine if the tenant has belongings that are worth some money, since the landlord may then sell off the belongings pursuant to RCW 59.18.312(3) to cover storage costs, or the tenant can recover the belongings by paying the storage costs and other costs associated with the judgment pursuant to RCW 59.18.312(2).

However, if the tenant’s belongings are more or less worthless, the landlord has to jump through several procedural hoops, and will likely never be adequately compensated for the storage costs.

2018-12-17T19:03:13+00:00