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.

Property Manager Survival Guide to Preparing Default Notices

I. Introduction to Unlawful Detainer Notices

As a general rule, prior to commencing an unlawful detainer (eviction) action, a landlord must serve the tenant, or occupant in unlawful possession of the leased premises, with a statutorily required notice. RCW 59.12.030. Compliance with statutory requirements regarding notices cannot be overemphasized. Because the unlawful detainer statute is in derogation of common law, courts will construe it in favor of the tenant. See, e.g., MH2 Company v. Hwang, 104 Wn. App. 680, 684, 16 P.3d 1272, 1274 (2001); Wilson v. Daniels, 31 Wn.2d 633, 643, 198 P.2d 496, 502 (1949)¹. Failure to comply with statutory notice requirements is jurisdictional in some instances and may result in the action being dismissed. See, e.g., Housing Authority v. Terry, 114 Wn.2d 558, 563-4, 789 P.2d 745, 748 (1990) (court lacked jurisdiction to adjudicate unlawful detainer action against residential tenant where the landlord failed to comply with the statutory notice requirements); see also Sowers v. Lewis, 49 Wn.2d 891, 895, 307 P.2d 1064, 1066 (1957) (court lacked jurisdiction over non-rent breach of lease claim where landlord’s notice failed to provide 10 days to cure breach).

II. The Washington Unlawful Detainer Statute

RCW 59.12.030 lists seven instances where a person may be held guilty of unlawful detainer:

RCW 59.12.030 provides:

A tenant of real property for a term less than life is guilty of unlawful detainer either:

(1) When he or she holds over or continues in possession, in person or by subtenant, of the property or any part thereof after the expiration of the term for which it is let to him or her. When real property is leased for a specified term or period by express or implied contract, whether written or oral, the tenancy shall be terminated without notice at the expiration of the specified term or period;

(2) When he or she, having leased property for an indefinite time with monthly or other periodic rent reserved, continues in possession thereof, in person or by subtenant, after the end of any such month or period, when the landlord, more than twenty days prior to the end of such month or period, has served notice (in manner in RCW 59.12.040 provided) requiring him or her to quit the premises at the expiration of such month or period;

(3) When he or she continues in possession in person or by subtenant after a default in the payment of rent, and after notice in writing requiring in the alternative the payment of the rent or the surrender of the detained premises, served (in manner in RCW 59.12.040 provided) in behalf of the person entitled to the rent upon the person owing it, has remained uncomplied with for the period of three days after service thereof. The notice may be served at any time after the rent becomes due;

(4) When he or she continues in possession in person or by subtenant after a neglect or failure to keep or perform any other condition or covenant of the lease or agreement under which the property is held, including any covenant not to assign or sublet, than one for the payment of rent, and after notice in writing requiring in the alternative the performance of such condition or covenant or the surrender of the property, served (in manner in RCW 59.12.040 provided) upon him or her, and if there is a subtenant in actual possession of the premises, also upon such subtenant, shall remain uncomplied with for ten days after service thereof. Within ten days after the service of such notice the tenant, or any subtenant in actual occupation of the premises, or any mortgagee of the term, or other person interested in its continuance, may perform such condition or covenant and thereby save the lease from such forfeiture;

¹Courts have distinguished between “time and manner” requirements for service of the notice and “form and content” requirements for substance of the notice. Marsh-McLennan Building Inc., 96 Wn. App. 636, 640, 980 P.2d 311, 313 (1999). Courts scrutinize most substantive requirements of a notice under a standard of substantial compliance while the service requirements of the notice are held to a standard of strict compliance. Id. (stating in footnote 1 that a landlord is held to strict compliance with regard to time and manner of service requirements under the statute and substantial compliance with regard to the form and contents of notice).

But compare Erz v. Reese, 157 Wash. 32, 35 (1930) stating that the court has “never adopted the strictest rule of construction as to the form or contents of such notices under our unlawful detainer statutes, chiefly for the reason, doubtless, that the statutes prescribe no form.”

Page 1