Property Manager Survival Guide to Preparing Default Notices – Part 3

IV. Additional Requirements for Certain Notices

A. Notices for Rent
A landlord is required to provide a good faith statement of the amount of rent due. Merely stating that the tenant is in default of rent payments without stating the amount due may (will likely) render the notice defective. See Byrkett v. Gardner, 35 Wn. 668 (1904); Metcalfe, 161 Wn. at 107.

A good faith statement of the amount due usually will be sufficient, even if it is later discovered the stated amount was incorrect. Foisy v. Wyman, 83 Wn.2d 22, 32-3, 515 P.2d 160, 167 (1973); Sowers, 49 Wn.2d at 891; Erz, 157 Wn. at 35 (notice only provided that the rent was delinquent in the amount of “a little over $800.00,” which was sufficient for notice purposes); Olson v. Alki, 63 Wn. 521, 523, 115 P. 1083, 1084 (1911) (notice was sufficient when it only provided the months for which rent was delinquent rather than computing the total amount of rent due). However, if the stated amount is wildly off the mark (especially if the amount is overstated) and the tenant is prejudiced by the landlord’s error, a court would likely dismiss the unlawful detainer action without prejudice. See Peck, supra, 31 WASH.L.REV. at 60.

B. Notices for Breach of Lease
Where the tenant has or is committing a non-rent breach of the lease, the notice must contain specific facts of instances where the tenant has breached the lease and set forth what the tenant must do to cure the breach. Byrkett v. Gardner, 35 Wn. 668, 674-5, 77 P. 1048, 1049 (1904) (stating that a general recital of the conditions and covenants of the lease, followed by a statement that the tenant is in breach, is not sufficient because it does not provide specifics about what the tenant must do to avoid forfeiture). General allegations will not suffice, but rather specific facts of how the tenant has failed to perform a condition or covenant of the lease will be required. Id.; See also Deming v. Jones, 173 Wn. 644, 647-49, 24 P.2d 85, 86 (1933) (where the court refused to find the tenant guilty of unlawful detainer because the lease breach was slight and technical, and noting the court abhors forfeiture under such circumstances).

C. Notices Requiring the Tenant Either Cure the Violation or Quit the Premises
The landlord must provide the alternative to either cure the violation or quit the premises in all notices based on violations of delinquent rent or lease breach. RCW 59.12.030. A failure to state the alternatives will render the notice defective. Terry, 90 Wn. App. at 565; Sullivan v. Purvis, 90 Wn. App. 456, 458, 966 P.2d 912, 914 (1998) (stating that a notice that fails to give the tenant the alternative of performing the covenant or surrendering the premises does not comply with the statutory requirements).

V. Service Requirements for All Notices

RCW 59.12.040 lists the three methods by which a landlord may properly serve the unlawful detainer notice upon the tenant. The three methods are summarized (and over simplified) below:

1. If the tenant is present at the premises: Personally deliver a copy of the notice to the tenant and all other persons entitled to receive it;

2. If the tenant is absent from the premises, but others are present: (1) Leave a copy of the notice with a person of suitable age and discretion (e.g. officers, agents, persons having charge of the business) AND (2) mail a copy of the notice to the tenant at the leased premises;

3. If no person of suitable age and discretion can be found at the premises: (1) After knocking loudly and persistently, post a copy of the notice at the premises in a conspicuous place AND (2) mail a copy of the notice to the tenant at the premises

A. A Fool-Proof Method to Serving the Notice: Deliver, Post, and Mail
While compliance with any one of the above three methods satisfies RCW 59.12.040, nothing prevents the landlord from doing more than the minimum. It may be in the landlord’s best interest to serve the notice in all three ways, as each method is simple and inexpensive. If in doubt, deliver, post, and mail.

B. Special Considerations When Mailing Notices
A notice served by mail must be properly addressed, with proper postage, and deposited in the regular United States mail in the county where the unlawfully held property is located. RCW 59.12.040. There is no requirement that the landlord prove the mailed notice was actually received by the tenant. Davis v. Jones, 15 Wn.2d 572, 131 P.2d 430 (1943). When the notice is mailed, the tenant has an additional day to comply with the notice before the tenant will be in unlawful detainer status.

C. Guest, Lodgers, Boarders, and Other Persons Renting Rooms on the Premises
Guests, lodgers, boarders, or persons renting rooms where the tenant or unlawful occupant retains control over the premises as whole and conducts a hotel, inn, lodging, or boarding house, or rents rooms, are not considered subtenants. Although such persons are not considered subtenants, those persons are entitled to some notice under the unlawful detainer statute. A landlord is required to serve notice on such persons by affixing a copy of the notice in two conspicuous places on the unlawfully held premises. RCW 59.12.040

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