Real Estate & Property Law

Do Not Pass “GO” - Wrongful Eviction in Washington

By Scott Eller, Esq.

In Washington a residential landlord may serve with the summons and complaint a notice requiring the tenant to pay rent within seven days or serve a response indicating no rent is owed.

If the writ of restitution is issued the defendant is entitled to a hearing to dispute the amount of rent owed.

A question arises when the landlord loses the case at the subsequent hearing. Although the question is unsettled law, the tenant may have a claim for wrongful eviction.

A Washington tenant may present a claim for wrongful eviction if a writ of restitution is issued and executed upon and the tenant later successfully challenges the issuance of the writ. Iverson v. Marine Bancorporation 86 Wn.2d 562, 546 P.2d 454 (1976).

In Iverson the landlord?s attorney wrote a letter to tenant stating she could stay through a date certain upon certain conditions. One of the conditions was formally appearing in the unlawfully detainer action. The tenant did not comply and in fact her attorney withdrew when the tenant specifically instructed her attorney not to appear.

The landlord obtained and executed upon a writ of restitution. The trial court in the unlawful detainer matter (not a separate action) held the tenant?s reliance on the letter justifiable and awarded damages for wrongful eviction including “moving expenses, costs of relocation, loss of opportunity and pain and suffering”. The award was upheld on appeal.

In a case of wrongful eviction, the tenant is entitled to recover all the damages that reasonably flowed from the landlord’s wrongful act, including the expense of moving. McKennon v. Anderson, 49 Wn.2d 55, 62, 298 P.2d 492 (1956); Chung v. Louie Fong Co., 130 Wash. 154, 162, 226 P. 726 (1924). Damages must be proved with reasonable certainty or supported by competent evidence in the record. Chung v. Louie Fong Co., supra at 162; Aro Glass &Upholstery Co. v. Munson-Smith Motors, Inc., 12 Wn. App. 6, 11,528 P.2d 502 (1974). An honest and reasonable effort to mitigate damages is required. Myers v. Western Farmers Ass’n, 75 Wn.2d 133, 136, 449 P.2d 104 (1969).

See also the New York opinion 430 Realty Assoc. v. McLeod, 557 N.Y.S.2d 1016 (1990).

RCW 59.18.375 is not a final adjudication of the parties? rights. ?Issuance of a writ of restitution under this section shall not affect the defendant’s right to a hearing to contest the amount of rent alleged to be due.?

Even if it were, subject matter jurisdiction (unlike personal jurisdiction) cannot be consented to or waived and may be raised as a defense at any time. Any relief granted is void ab initio in the absence of subject matter jurisdiction. In an unlawful detainer action failure to properly serve a notice to pay rent or vacate or other pre-litigation notice deprives the court of jurisdiction.

If the landlord loses on a basis that deprives the court of subject matter jurisdiction the tenant has a good argument for a claim for wrongful eviction per Iverson.

This is one reason some Washington landlord attorneys do not serve RCW 59.18.375 notices.

Full post as published by Seattle Landlord-Tenant Attorney on July 21, 2008 (boomark / email).