One of the greatest hurdles faced by landlords and property owners is regaining possession of real property in a timely manner. Unlawful Detainer (also referred to as an eviction) and Ejectment are actions are used by landlords and property owners to recover the possession of real property. Choosing the type of action depends on the facts and circumstances or the occupancy. Generally, unlawful detainer is used to remove a tenant from a rental and ejectment is used to remove anyone who is wrongfully occupying property.
The unlawful detainer statute (RCW 59.18 et seq.) is commonly known as the Residential Landlord Tenant Act (the “RLTA”). The RLTA was created to help provide a relatively quick and straightforward process for evictions different from the traditional civil case track. . The RLTA also provides for alternative means of service when a tenant evades service of process. However, property owners are required to strictly comply with all provisions of the statue of which there are several and it is easy to have a misstep that may require the entire process to be restarted. Landlords and property owners should be extra vigilant when trying to effect any part of the eviction/ejectment process without appropriate legal guidance. Adding to the challenges of the eviction process are the many extensive amendments to the RTLA (state and local), some of which were born out of the global pandemic. Unfortunately for landlords, the amendments have increased notice requirements, caused significant delays in the eviction process, and added other challenges. While unlawful detainer hearings are usually heard by court commissioners through an ex-parte calendar separate from the regular civil docket, many Washington courts are facing unprecedented increases in unlawful detainer cases. This has resulted in a backlog of hearings, and unless court systems provide additional resources and staffing, one may encounter significant delays in pursuing what should otherwise be a streamlined process.
Arising under common law, ejectment is an action in the ordinary course for a party to regain possession of real property. An ejectment action is generally like a civil lawsuit where: (i) the responding party can bring counterclaims, (ii) both parties are entitled to full discovery before the judicial officer decides the right to possession; (iii) a 20-day civil summons must be used; (iv) there is no statutory show-cause procedure, and (v) there is no right to any type of expedited trial. Depending on the county in which the ejectment action is filed, the parties work through the civil lawsuit process in that jurisdiction without any expedited case schedule, limited discovery, or an expedited trial. Even though the trial date may be a year or so out, defaults and interim proceedings can be leveraged to bring swifter resolution ahead of the trial date and sometimes sooner than an eviction. Unlike eviction proceedings in some respects, the moving party in an ejectment (typically the landlord, property owner, or property manager) must perfect service on the responding party or otherwise seek permission from the court to proceed with alternative service if the responding party cannot be personally served. Personal service can become time intensive and expensive especially when the responding party is evading service. With an ejectment, there is no statutory requirement that a landlord/tenant relationship exist between the parties, which can make ejectment an appropriate action where no lease or rental arrangement exists as is often the case with guests, squatters, and others.
Under Petsch v. Willman, 29 Wn.2d 136, 185 P.2d 992 (1947), our Supreme Court held an early version of the unlawful detainer statute did not supersede all existing common law on the ways and means of acquiring the right to possession. Consequently, a landlord does not have to use the summary remedy of unlawful detainer; a property owner with the right to possession can elect to proceed under ejectment and quiet title or under an unlawful detainer. Even if a lease or rental arrangement exists, an ejectment may still be available and the better course of action especially when considering the extensive statutory requirements of the RTLA and the lengthy delays one can encounter with an eviction.
Despite being intended to provide a timely and efficient method for landlords and property owners to regain possession of real property, unlawful detainer actions can become grueling and expensive to pursue. When supported by appropriate facts and circumstances, landlords should consider using an ejectment action in the alternative and to consult with an attorney to handle the process regardless of the type of action pursued. If you have questions about regaining possession of real property, the Real Estate lawyers at Lasher are here to help.