Volume X, Issue V
September/October 1997

Landlord/Tenant Law: the Show Cause Hearing

by B. Bradford Kogut

As a young lawyer with a small solo practice, I find that much of my caseload consists of residential landlord/tenant work. Recently, while representing a tenant, I entered into negotiations with the landlord's attorney, Evan Loeffler, the Editor of this august publication. After we took care of business, Mr. Loeffler asked me if I would submit an article for De Novo on landlord/tenant law. After Mr. Loeffler bought me lunch, I agreed to submit the following practice tips regarding the eviction process.

A large part of landlord/tenant practice involves the unlawful detainer or eviction process, as set forth by RCW 59.12, 59.18, and 59.20. As background, this process commences when the landlord serves one or more statutory notices to the tenant (i.e., 20-day notice to terminate tenancy, 3-day notice to pay rent or vacate, 10-day notice to comply with lease agreement or vacate). If the landlord believes that the tenant has not complied with the notice, the landlord may serve a summons and complaint for unlawful detainer based on noncompliance of the notice in order to regain possession of the dwelling unit.

Many landlords' attorneys serve the complaint on the tenant without first filing it in order to save the costs of the Superior Court filing fee for their client. This practice is also advantageous for the tenant, as an unfiled unlawful detainer action will not become a part of the tenant's credit report. Furthermore, at this point of the eviction process, the landlord and tenant may reach a settlement of their dispute without incurring additional fees and costs. This settlement is usually in the form of a stipulation in which both parties enumerate the terms of the agreement and provide for a pre-arranged remedy if the terms of the stipulation are not duly complied with.

The tenant must answer the original unlawful detainer complaint within the time deadline stated in the complaint in order to prevent a default judgment. The tenant may submit a full written answer or the tenant may satisfy the answer requirement with a notice of appearance. Many times these types of cases will settle without going to court, so it may be more practical and economical to prepare a full answer when potential court time becomes definite. Remember, a timely notice of appearance must still be submitted or the landlord can take a judgment by default.

A complete answer should contain any relevant affirmative defenses, set-offs, and counterclaims that will be before the court. The counterclaims allowed in an unlawful detainer procedure are limited. See RCW 59.18.380 and RCW 59.18.400. This answer should have these documents attached: (1) exhibits; (2) affidavits or declarations of the attorney or the tenant; (3) declarations of service; (4) declaration for attorney fees; (5) any proposed order; and (6) all other relevant documents. A complete answer and attachments helps create a thorough record from which an appeal or motion for revision can be made.

As landlord/tenant attorneys are well aware, many landlords and tenants will be unable to resolve their dispute, inevitably winding up in court for a final judgment on the matter. RCW 59.18.370 provides the statutory basis for the show cause hearing. Here the tenant is required to show cause why the writ of restitution, giving possession of the dwelling unit back to the landlord, should not be granted. The possible outcomes of the show cause hearing are as follows: (1) the entire unlawful detainer action is dismissed; (2) a writ of restitution is not issued at the hearing and a trial date is set to fully decide the matter; (3) a writ of restitution is issued at the hearing and a trial date is set to decide related matters, such as back rent, attorney fees, and court costs; and (4) a writ of restitution is entered and a trial is not granted. Obviously, the landlord hopes the writ of restitution is granted immediately while the tenant hopes to have the case dismissed or to retain possession of the dwelling unit until the trial date.

At the show cause hearing the judge or commissioner will examine the parties in order to ascertain the merits of the complaint and answer. The burden of proof at this hearing is set forth in RCW 59.18.380, but this burden is open to interpretation. The landlord's attorney would argue the landlord should prevail "if it shall appear that the plaintiff has the right to be restored to the property." The tenant's attorney, on the other hand, would argue that the tenant only needs to raise "genuine issue of material fact pertaining to a legal or equitable defense or set-off raised in the defendant's answer" in order to prevent a writ of restitution from being granted and for the case to proceed to trial.

In the event the case is set for trial, unlawful detainer proceedings have priority over all civil trials. It is not always possible, but the trial should be scheduled within 30 days. If a writ of restitution is issued prior to a final judgment at trial, then the landlord may be asked to post a bond to the defendant in an amount commensurate with the costs of the suit and all damages which the defendant may sustain if the writ of restitution was wrongfully issued. See RCW 59.18.380. Furthermore, if the writ of restitution is granted, then the defendant may post a counterbond within three days of the service of the writ and stay the eviction. See RCW 59.18.390. Tenants who have a lease which has not expired can also satisfy the judgment by paying the entire amount to the landlord or into the court registry and continue possession. RCW 59.18.410.

Hopefully, this article has given the reader some practical insight on the eviction process. Anyone are interested in pursuing this type of practice, or seeking to fulfill their pro bono hours, can acquire experience by representing defendants in unlawful detainer actions. In King County, contact the Volunteer Legal Services at (206) 624-9365. Similar services exist in nearly every county.

B. Bradford Kogut has a solo practice in Seattle

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