Scott E. Feir

This article was prepared for educational purposes only and may or may not reflect the most current legal developments. All sample provisions herein are for illustrative purposes only and do not constitute a representation or warranty of their appropriateness or suitability for any purposes whatsoever. These materials are not legal advice, and persons should consult an attorney for legal advice pertinent to his or her situation. Commercial and residential landlords seeking clarification should contact Scott Feir.

Understanding the Eviction Action (and Doing it Right)

I. An Introduction to the Eviction Action (Unlawful Detainer)

An unlawful detainer action is a statutory “eviction” action that was created by passage of the Unlawful Detainer Act of 1890 (“UDA”). Prior to the enactment of the UDA, a landlord often had to resort to the common law right of “self help” by using reasonable force to physically remove a tenant from the leased premises. The unlawful detainer action supplants common law eviction rights and was created both to provide the landlord with an effective, expedient method of regaining possession of the property when a tenant was in default, and also as a way to keep the peace by replacing the common law right of physical eviction by “self help.” Nelson v. Swanson, 177 Wash. 187, 191, 31 P.2d 521 (1934); Heaverlo v. Keico Indus., Inc., 80 Wn. App. 724, 728, 911 P.2d 406 (1996); Woodward v. Blanchett, 36 Wn.2d 27, 32, 216 P.2d 228 (1950) (“The action of unlawful detainer is the legal substitute for the common-law right of personal re-entry for breach.”); Coffel v. Clallam County, 58 Wn. App. 517, 524, 794 P.2d 513 (1990) (“A landlord cannot resort to physical force to evict a trespasser or a tenant unlawfully holding over, but must commence an unlawful detainer action.”). The present use of previously accepted common law “self help” eviction methods, like lockouts, likely will expose a landlord to civil liability. See, e.g., Olin v. Goehler, 39 Wn. App. 688, 693, 694 P.2d 1129 (1985); see also 17 William B. Stoebuck, Washington Practice, real estate: §6.79 at 417.

The term “unlawful detainer” actually describes the legal status of a tenant when the tenant or occupant breaches certain lease provisions or breaks certain specific laws and thereby illegally possesses the property of the landlord. Depending on the type of tenancy at issue, or lack thereof in the case of trespass, RCW 59.12.030 enumerates certain types of tenant breaches or actions that will support an unlawful detainer action. RCW 59.12.030 requires that the tenant be given adequate notice to either cure the default (subject to certain exceptions) or to surrender possession of the property to the landlord. Once the landlord has served the tenant with notice to cure the default or quit the tenancy, and the statutorily prescribed period associated with the breach has passed, the tenant is in “unlawful detainer.” The landlord may then use the special statutory procedures to file an unlawful detainer action in superior court. RCW 59.12.050 - .080. The unlawful detainer action may not be filed in state district court. An unlawful detainer action will be given priority on the civil calendar, which ensures the legislative intent of providing a quick and effective remedy. RCW 59.12.130.

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