Scott E. Feir

Understanding the Eviction Action (and Doing it Right)

b. Legal Possession Must Be at Issue

Legal possession of the property in question must also be at issue to invoke the court’s unlawful detainer jurisdiction. Stevens v. Jones, 40 Wash. 484, 486, 82 P. 754 (1905) (“Any claim [the plaintiff] may have had for damages could be waged in this summary action only as an incident to her right to possession. The right to damages is a personal one, and when unaccompanied with the right to recover possession, must be waged in an ordinary civil action.”). MacRae v. Way, 64 Wn.2d 544, 546, 392 P.2d 827 (1964) (unlawful detainer action could not be maintained by party who had conveyed all possessory interest in leased property to third party after service of notice to pay rent or vacate and before commencement of action by service and filing of statutory summons and complaint.); Kessler v. Nielsen, 3 Wn. App. 120, 126-7 (1970) (court lacked jurisdiction to decide unlawful detainer action after plaintiff sold the property in question to defendant prior to judgment); Woodward v. Blanchett, 36 Wn.2d 27, 32, 216 P.2d 228 (1950) (court determined that action could not have been for unlawful detainer because defendant had relinquished possession); Sullivan v. Purvis, 90 Wn. App. 456, 459, 966 P.2d 912 (1998) (court noted that the trial court could not have converted the action to a traditional civil action for damages because the right of possession was still contested); Honan v. Ristorante Italia, Inc., 66 Wn. App. 262, 268-9, 832 P.2d 89 (1992) (where the defendant abandoned the property prior to trial, the trial court erred by handling the case as an unlawful detainer).

Application of the rule that possession must be at issue is more difficult when the defendant tenant physically abandons or partially abandons the property after commencement of the unlawful detainer action. In Munden v. Hazelrigg, the court held that it was proper to convert an unlawful detainer action to a regular civil action where the defendant had abandoned the property and specifically relinquished all right to legal possession. The Munden court stated that “[w]here the right to possession ceases to be at issue at any time between the commencement of an unlawful detainer action and trial of that action, the proceeding may be converted into an ordinary civil suit for damages, and the parties may then properly assert any cross claims, counterclaims, and affirmative defenses.” 105 Wn.2d at 47.

Physical surrender alone, however, is not legal abandonment. K & C Assocs. v. Airborne Freight Corp., 20 Wn. App. 653, 655, 581 P.2d 1082 (1978) (“Abandonment is a legal conclusion which must be supported by findings of (1) an act or omission and (2) an intent to abandon.”). The court in K & C Assocs. held that the tenant did not abandon the property even after vacating and returning the keys because the tenant continued to pay the rent, noting that “[a] tenant may continue its obligations under a lease even though it vacates the premises with no intention to return before the end of the lease term.” 20 Wn. App. at 656.

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