Real estate investors in residential property are sometimes surprised to learn after the purchase has closed there is already someone living in the property. Whether the occupant is the former owner, a member of the former owner’s family, a tenant that was not disclosed or simply someone who moved in and will not willingly vacate, the problem of unknown occupants has become a more prevalent problem.

 

There are a number of scenarios a new property owner may face. Common situations include:

 

• The seller of the property refuses to move;

• A relative of the seller refuses to move;

• Post­foreclosure occupancies by former owners or tenants;

• The property was believed to be vacant and the buyer learns someone moved in without telling anyone.

 

Evictions may be complicated when there is an occupant of real property after closing on a purchase and sale agreement. The Residential Landlord­Tenant Act applies when there is a landlord­tenant relationship. This is usually indicated by a written or oral lease between the parties where the tenant agrees to pay rent in exchange for being allowed to reside in the property. When the former owner refuses to move after closing, there is no such agreement. Accordingly, the Residential Landlord­Tenant Act may not apply. Purchasers struggle to find an efficient and cost­effective way to remove such occupants.

 

Some suggestions:

 

• Establish a tenancy: delivering a notice to the occupant stating, “If you remain on the premises you are a tenant,” and providing the terms of the tenancy may be effective to convince the occupant to leave. There is no guidance from the courts or the law on how much notice will be required. There is also the problem of whether a contract on which there is no mutual agreement can be enforceable.

• “Cash for keys.” A written agreement with an occupant to move by a certain date in exchange for money or other consideration is an enforceable contract. Moreover, it establishes a tenancy that may be enforced at law. Litigation is uncertain and expensive. Working out a deal may be faster and cheaper than pursuing legal remedies in court.

• Tenancy at will: This is a term invented by the courts to define when a party is in possession of real property without a lease or an agreement to pay rent. The case law discussing this situation suggests that a tenant at will may be terminated with “reasonable notice.” It appears what is reasonable is to be decided on a case­by­case basis. The manner of legally removing a tenant at will may by eviction or by ejectment.

• Action in ejectment. The Washington State legislature has provided authority for the courts to determine which party asserting ownership of the property has the superior right of possession. Essentially the action is to quiet title. Such actions are not as quick or cost­effective as an eviction. However, unless the occupant can show he or she is on title, there is very little defense.

• Action for unlawful entry and detainer. This is a rarely used procedure similar to an action in ejectment. The statute provides that a party who enters upon land without permission of the owner who refuses to vacate after three days’ notice may be removed from the land.

• Forcible detainer. A person is guilty of forcible detainer who unlawfully holds possession by force whether possession acquired peaceably or otherwise. The owner may proceed in a manner similar to a standard unlawful detainer or eviction action in such a case.

 

Each procedure presents its own challenges. The best choice for a new property owner will depend on the unique circumstance of each situation. When faced with an unwanted or unforeseen occupant, it is best to consult with a lawyer well­versed in this area of the law who can advise on the best way to get possession of the property.

 

If you need assistance with a tenant dispute, an eviction, a lease or other landlord-tenant situation, please call 206.628.6600 today to speak with one of our experienced attorneys.

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Important: This information is provided as a courtesy without any claim as to its effectiveness or legality. Use of this information does not in any way create an attorney-client relationship.