Lease Amendments and Modifications Must Be Notarized if the Original Lease Required Notarization

LeaseJuneLeases of land, buildings, and portions of buildings, whether for personal or business use, are transfers of real property rights.  In law school, students become familiar with the idea of ownership or rights in real property being like a “bundle of sticks.”  If you own the real property in what is called “fee simple,” then you own all (or at least) most of the sticks in the bundle.  When leasing real property, on the other hand, you don’t own all the sticks.  Notwithstanding, a tenant owns important rights (or sticks) such as the right of possession.

Although leasing property is a conveyance of interests in real property, leasing also involves a contract.  The landlord and tenant enter into an agreement or contract outlining the rights and obligations of the parties related to the real property interests being conveyed.  Because leases are contracts, they must comply with the statute of frauds, and because leases are a conveyance of real property, they must comply with real property transfer requirements.  Therefore, some leases must be in writing and some leases may even be required to be acknowledged (i.e., notarized).

According to RCW 59.04.010, leases for a fixed term of one year or less must be writing.  Moreover, under RCW 64.04.020 and Washington case law, if a fixed lease term is for more than a year the lease must also be notarized.  Stevenson v. Parker, 25 Wn. App. 639, 642, 608 P.2d 1263, 1265 (1980).

The question arises, however, whether an amendment to a lease must be notarized/acknowledged.  Washington has adopted the rule that an amendment or modification of a lease must meet the same requirements as the lease that it amends or modifies.  In other words, if the lease being amended or modified had to be notarized, then the amendment or modification must also be notarized.  For those interested, the following are two Washington cases supporting this rule: Vance Lumber Co. v. Tall’s Travel Shops, 19 Wn.2d 414, 142 P.2d 904 (1943), and Hansen v. Central Inv. Co., 10 Wn.2d 393, 394-95, 116 P.2d 839 (1941).

Please contact me or another MPBA attorney for your leasing questions and needs.

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