On October 20, 2020, Washington Court of Appeals Division III released its ruling in Whitmore v. Larsen, which involved bringing an unusual unlawful detainer action over a land encroachment. Please read below the jump break for my summary and thoughts.
The background facts are somewhat complex, but break down to the following:
In 1950, Widmer, who owned a parcel of land in Pullman, erected a large commercial building on its property. However, there was about a 10 x 250-foot strip of land under the building that the adjoining landowner (Keiser) actually owned. In 1962, Keiser brought a quiet title action to that strip of land. To resolve the issue, the company who erected the building (Widmer) executed a lease to pay Keiser $100 per year to use that strip of land, which continued without issue for 24 years.
The subsequent owners continued to honor the lease terms. The land Keiser owned eventually passed to Whitmore's parents, while the Widmer building passed to a woman (surname Martin). The parties amended the lease from $100/year to $700/month while extending the tract of land to be leased.
Martin eventually leased the building to Chambers. Chambers ran a car business out of that building for years.
When Whitmore's parents passed away, their family trust left the land - and assigned any subsequent lease payments - to Whitmore. When Martin passed away, Chambers bought the building and kept making monthly payments to Whitmore per the lease terms.
In 2014, Chambers retired, selling his car business and the building to Larsen. However, Chambers expressly noted that his lease with Whitmore over using Whitmore's land would expire and Larsen would need to sign a new agreement with Whitmore.
However, Whitmore refused to sign any agreement with Larsen.
In 2015, Whitmore served a 3-day notice to pay rent or vacate on Larsen under RCW 59.12.030(3), claiming past-due rent of $7,500. After a show cause hearing, the court ruled that Whitmore was entitled to a writ of restitution, but the court did not issue one because it was unclear how the writ would be enforced.
The case sat idle until 2016, when Whitmore again asked the court for a writ of restitution via a motion for summary judgment. Whitmore this time claimed that Larsen was bound under a renewal clause in the Chambers' old lease, which would have entitled Whitmore payments through 2018. The court denied the motion, but Whitmore could maintain his action for relief under RCW 59.12.030(3).
The parties proceeded to a two-day bench trial in 2019. Interestingly, the court also allowed the issue of title to be argued in an unlawful detainer action. Testimony and evidence included documents from the Department of Transportation to determine what reasonable rent would be.
At trial, the court ruled for Whitmore, only ruling that Larsen unlawfully occupied property "on a month to month basis and/or pursuant to a lease agreement that has not expired and/or by an implied lease" (a blanket statement that encompasses a wide range of situations).
Larsen's rent was set at $1,080.50 per month. The total was then doubled under the unlawful detainer statute, with reasonable attorney fees and costs awarded to Whitmore under the Chambers' lease. Larsen owed Whitmore $165,680.40.
The court also granted Whitmore a writ of restitution, with the county sheriff ordered to execute the writ by either: (a) erecting a fence up to and around portions of the building; or (b) removing the building entirely.
The court granted Larsen's stay of the writ, and Larsen appealed to Division III.
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The appellate court agreed with Larsen.
First, Whitmore could not bring an RCW 59.12.030(3) unlawful detainer action for nonpayment of rent because Larsen was not an actual tenant. It was undisputed that Chambers' lease was never assigned to Larsen, so Larsen did not have any obligations to Whitmore under that lease. Also, Larsen did not have an express lease with Whitmore. The court found no implied lease because the evidence showed that Larsen and Whitmore had no mutual agreement of any type.
Second, without any such landlord-tenant agreement in the preceding paragraph, Washington courts have only found a defendant liable for unlawful detainer using an "implied tenancy" theory under RCW 59.12.030(6), which is reserved for situations where a person enters land without color of title and without permission from the landowner. A squatter could potentially be such a "tenant". Since Whitmore did not serve such a notice, Whitmore could not pursue this argument.
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Interestingly, Whitmore could have probably converted this action to an ejectment matter, but did not adequately explain his argument to the trial court or appellate court. Generally, trial courts should freely convert such matters to ejectments, but there is no standard uniform procedure to date and the trial court would have wide discretion.
Division III commented that Whitmore could have also brought a nuisance or trespass action.
Whitmore likely went with an unlawful detainer action because it usually provides quicker relief. In Washington, UD matters are "fast-tracked" over their other civil counterparts. Ironically, the case ended up stalled in the trial court for over four years. Had Whitmore sued under ejectment, nuisance, or trespass grounds, he could have gotten the same favorable result at the trial court level, with probably less risk of the decision getting overturned.
Had I represented Whitmore, I may have advised him to proceed under an ejectment, trespass, or quiet title theory. Larsen would have no legitimate way to claim land Whitmore owns, and it appears the court didn't buy any argument that Whitmore didn't own that land. Lease history between predecessors should be irrelevant or otherwise not a factor. Perhaps there is a case out there that is on point to confirm this.
My usual practice was the equivalent of "If I can't find an obvious landlord-tenant agreement in two minutes after the potential client starts sharing his/her story, an ejectment action becomes the default course of action, if any."
