Unlawful Detainers in Washington State

by David Britton

HOW THE UNLAWFUL DETAINER PROCESS WORKS IN WASHINGTON IN 2024, AND WHAT TO EXPECT AS AN UNLAWFUL DETAINER LITIGANT

Assuming you have consulted with us, or another licensed Washington attorney, and you know you have a “just cause” to evict your tenant under RCW 59.18.650(2)(a-p)[1], the following is a basic outline of how the eviction process will work in most counties, and what you will need to provide to assist your attorney in the process.

I will use an unlawful detainer for nonpayment of rent under RCW 59.18.650(2)(a), the most common type of eviction, as an example.  While the general discussion will be based on the current process in Pierce County Superior Court, most counties’ courts process these cases in a similar way and on similar timelines, based predominantly on State law.  City of Tacoma evictions will not be discussed here as they are covered in several other entries.

Predicate Notices.  What I refer to as “Predicate Notices” are the various types of notices that must be served on the tenant before you can file an unlawful detainer action in the courts.  They are sometimes referred to as “predicate” notices because in most cases the court’s jurisdiction over your unlawful detainer case is predicated on the proper and timely service of one of these notices.  There are almost as many types of predicate notice as there are “just causes” upon which an unlawful detainer action can be based.  Again, I will focus on nonpayment of rent.

The first notice that must be served on the tenant is a “Pay or Vacate” notice.  This has to provide at least 14 days’ notice to pay or vacate under RCW 59.18.650(2)(a), but due to a Federal law called the “CARES Act” which is being enforced by our State courts, you may have to serve a “30-Day Pay or Vacate” if your rental property is subject to a Federally backed mortgage, or your tenant receives any kind of Federal housing assistance.  You may also have to serve a “Repayment Plan Offer”[2] along with the Pay-or-Vacate, if you want to recover unpaid rent that accrued prior to April 1, 2023.  And all these notices have to be served in strict compliance with RCW 59.12.040, generally by posting the notice(s) on the premises and also mailing them to the tenant from a location in the same County where the property is located.  I strongly advise consulting with LandlordSolutions on which notice to use, and how to get it served. The “time, place, and manner” requirements for serving a predicate notice have to be strictly observed: any flaw can cause your subsequent unlawful detainer case to be dismissed for lack of jurisdiction.

There are other technical requirements for the content of the notice, but one thing to remember is that you must list separately each month for which rent is unpaid, and the unpaid amount for that month.  During the 14- or 30-day notice period, the tenant has the chance to repay all of the rent and other permissible charges listed in the Pay or Vacate notice.  If the tenant repays the listed amount in full before the 14- or 30-day notice period expires, their lease is reinstated and the unlawful detainer process is over (at least for the time being).  You do not have to accept partial payments, and we advise that you don’t, as it will likely be interpreted as acceptance of partial performance that reinstates the lease and invalidates the notice.  See RCW 59.18.190.

It would have been, if not easy, at least feasible, to do all of this yourself, as recently as five years ago.  I would not advise doing so now.

Filing the Eviction Summons and Complaint for Unlawful Detainer.  Here again, it is advisable to either retain a licensed attorney or use a service like LandlordSolutions that can provide the services of a licensed attorney when they become necessary.  The Summons in particular contains mandatory language that must be included in the Summons.

The Eviction Summons and Complaint for Unlawful detainer can only be filed and served on the tenant after the 14- or 30-day notice period has expired and the tenant has failed to either pay in full the rent specified in the notice or vacate the premises.  These pleadings must be filed in the Superior Court, and personally served on the tenants, to start the action.  You are strongly advised to use a professional process server, or a service such as LandlordSolutions that takes care of all of these details.  I am not just giving this advice for commercial purposes.  This stuff is complicated.

The Show Cause Hearing.  In most jurisdictions it is still possible to obtain a default judgment and writ of restitution if the tenant completely fails to respond in any way to the Summons and Complaint, but in the age of assigned counsel for indigent tenants this has become more of a rare occurrence, and there are some jurisdictions that will not let you get a judgment or a writ at all without a Show Cause hearing.  The Show Cause Hearing is generally held before a court commissioner and is based upon an Order you obtain from the court and serve on the tenant, directing the tenant to appear in court on the date, time and place of the hearing, to “show cause, if any they have, why a writ of restitution should not issue.”

An Order to Show Cause is typically issued by the court’s ex parte department, since the landlord is entitled to the order as a matter of law upon showing that the tenant has been properly and timely served with the proper predicate notice(s) (see above).  It can be applied for at the time the Summons and Complaint are filed, and served together with the Summons and Complaint, but landlords often wait to see whether or not the tenant defaults and serve the Order to Show Cause separately.  The Show Cause hearing must also be noted for the commissioner’s hearing calendar the same way other civil motions are noted; this Note for Commissioner’s Calendar is then served on the tenant along with the Order to Show Cause.  The Show Cause hearing must be noted for a date that will fall between 7 and 30 days after the Order to Show Cause is served on the tenant; it’s best to allow at least three additional days for service of the Order.

As you can see, we are already somewhere between 21 and 60 days out from first serving the tenant with the predicate notices.

At the first Show Cause hearing, the tenant will typically be screened by assigned counsel to see if they qualify for free legal representation.  Because they usually do, the court will usually continue the Show Cause hearing to allow assigned counsel to appear and review the tenant’s case.  The length of the setover period between the first and second (setover) Show Cause hearings can vary greatly by County.  Here in Pierce County, Show Cause hearings are generally being set over about three weeks, maybe a little less.  In King County, Show Cause hearings are being set over for a second hearing in another 2 to 3 months.  I wish I were joking.

On the bright side, here at the end of 2023, these cases are typically being resolved one way or another (usually by settlement) at the second Show Cause hearing.  At this time last year, mainly due to State-law mediation requirements and other provisions that have since sunsetted, it was typical to have 3, 4, or even 5 setover Show Cause hearings, adding up to delays of 2 or 3 months.

What the Landlord (or Property Manager) Needs to Provide for the Show Cause Hearing.  As part of the process, we generally ask landlords to provide a copy of their lease agreement and rent ledgers at the very beginning of the eviction process.  The property owner or property manager must also be present (usually on the Zoom platform) at the Show Cause hearing.  At the hearing, the landlord’s attorney will take brief testimony directly from the property owner, or the property manager who actually deals with the property/tenants, to establish the following: (1) your familiarity with the property, the tenants, and their lease history; (2) who the tenants are; (3) how long they have been leasing the property; (4) the current monthly rent; (5) whether the defendant tenants are current on their rent [the answer should ne “no”]; (6) which months’ rent have not been paid; (7) whether the tenants have made any partial payments during that delinquency period; and (8) whether the tenants are still residing in the leased premises.

Two things you need to do to prepare for the Show Cause Hearing: (1) please, please review your rental records before the hearing, so you are familiar with the tenancy and can answer the above 8 questions without having to study a computer screen and look like you are not in fact familiar with the tenancy and cannot answer the 8 questions; and (2) check the property 1-2 days before the hearing and make sure the tenant is in fact still living in the unit.

Judgment, Order, and Issuance of Writ of Restitution.  If all goes reasonably well at the Show Cause hearing, and assigned counsel do not raise (or, anyway, do not succeed with) any procedural or substantive defenses, (these change nearly every month, but they don’t raise them in every case), the court will enter a Judgment for any back rent[3] and an Order to issue a Writ of Restitution.  The Writ is issued by the Clerk’s Office and must then be taken over to the Sheriff’s Office for service on the tenant, and, eventually, execution (i.e., physical eviction).  In most parts of Pierce County, a Writ that goes out for service today will result in a physical eviction roughly 6 or 7 weeks from now.  These Sheriff’s “backlogs” vary widely by County, as you can probably imagine.

While all this information can vary greatly depending on what County you are in, hopefully this gives you some idea of what an unlawful detainer looks like in the State of Washington in 2024.  Of course, the Legislature is preparing for another session as you read this, and there is a good chance that landlord-tenant law in Washington will change again in significant ways come next July 1.  Watch this site for any new developments.

Notes:

[1] An unlawful detainer may also be based on the so-called “no cause” eviction provisions of RCW 59.18.650(1), mostly having to do with the expiration of a term lease agreement, or RCW 59.12.030(6), for a non-tenant who moved into the unit without permission, or a few other causes which will not be discussed here.

[2] See RCW 59.18.630.

[3] Unless it was not possible to personally serve the tenant, in which case any money judgment will be reserved and may be pursued separately after the unlawful detainer proceeding.