A Primer on Housing Matters in a Pro Bono Context

By Ian Franzel

There are certainly a lot of housing and Landlord/Tenant Law issues requiring attorney review in the local pro bono/legal aid clinics.  I wanted to use this posting as an opportunity to provide some basic guidance concerning what kinds of issues a client might be dealing with when they come to you with an atypical housing or landlord-tenant matter.  Some of these circumstances and the legal procedure that applies to them deal with esoteric areas of the law that are not often used.  Some of these procedures were uncommon, and, during recent years and recent times of economic hardship and reorganization, these uncommon procedures have been reintroduced with more regularity.  Please take additional note that the legal theories discussed herein do not constitute legal advice to the reader or create an attorney-client relationship and that there is no substitute for working directly with an attorney who may provide legal counsel that is customized to one’s exact facts and issues.

Tenants In Post-foreclosure Apartments or Other Properties.

If a client is living in a property that has been foreclosed on, the legal analysis begins with what type of property interest the client had prior to the foreclosure, i.e., were they a tenant (did they have a tenancy agreement with anybody?), were they the prior owner/borrower, were they a family member of the owner/borrower?  There are both state and federal protections for the tenant.  Under the state law, the client must receive 60 day’s notice prior to the commencement of an eviction.  WA RCW 61.24.146.  Under federal law, if the client is a tenant of the prior owner/borrower, then, the terms of that tenancy will survive (unless the purchaser intends to owner-occupy) and the new owner must step into the shoes of the prior owner, as the landlord/party to the tenancy contract.  This federal protection, The Protecting Tenants in Foreclosure Act (PTFA) of 2009 was extended/slated to sunset on December 31st, 2014 by the Dodd/Frank Act in 2010.  Under the PTFA, in the context of a month-to-month tenancy, the tenant must be given a 90-day notice to vacate prior to the commencement of an eviction lawsuit.  The federal protection is wonderful, but it will expire soon.

In addition to the tenant’s customary defenses to eviction, post-foreclosure defenses to eviction may include a claim that the foreclosure was done improperly or that there are equitable grounds for setting aside the sale.  Albice v. Premiere Mortgage Services, 174 Wn.2d 560 (2012).  If dealing with the prior borrower/owner, the new owner may commence an eviction lawsuit where no pre-suit notice is required.  WA RCW 61.24.060(1).

Ejectment: Ejectment most commonly has to do with a property owner’s efforts to remove unlawful occupants from a housing unit or a piece of property.  The legal analysis here again comes down to deciphering what type of property interest the occupant possesses in the subject property.  Ejectments are often filed in the case of a “tenancy at will” which is where a tenant starts living on the property for free without the permission of the landlord; the property owner and the occupants thus have no pre-existing contractual agreement between one another.  An ejectment is merely a lawsuit where a writ of possession may be issued.  Some things to note about ejectment or that there is no provision for a show cause procedure in an ejectment lawsuit, so, relief can be obtained by means of a motion for injunctive relief, or, more commonly, through a motion for summary judgment.  Ejectment and quiet title claims are often filed in the same lawsuit, typically where there is a boundary dispute, something that is a legal aid attorney is not going to frequently happen upon in his/her pro bono capacity.

Forcible Detainer and Forcible Entry. One thing to note about the occurrence of forcible detainer is its occurrence is very much alive in the local area.  This is when the landlord locks the tenant out of the leased premises without having received any court orders or ever having filed any lawsuits, also aptly named a “lockout,” or landlord’s attempted “self-help.”  Forcible entry is the same circumstance except that the landlord has been locked out while being physically present and animatedly and physically removing the tenant from the leased premises.

Disputes between Co-Tenants: is there ouster? the last substantive area of the law that is commonly encountered in a pro bono context is what to do when there are two tenants under a lease where the tenants are feuding with one another and physically blockading the others access to the rental unit.  The term “ouster” is used in a variety of contexts, even dealing with misuse of another person’s personal property.  The term means what it sounds like: “there must first be a “repudiation or disavowal of the relation of co-tenancy between them, . . . any act or conduct signifying his intention to hold, occupy, and enjoy the premises exclusively . . . .”  Shull v. Shepherd, 63 Wn.2d 503, 506, 387 P.2d 767 (1963) (quoting 1 Am. Jur., Adverse Possession § 54 at 824 (1959)).  The term ouster most commonly has to do with when there are co-owners of property and one of the co-owners blocks off the property such that the other co-owner cannot access or use the property at all.  I will leave that up to you concerning what the exact legal procedure is when one tenant does a lockout of another tenant.  Even though not common, if there is ouster, a forcible detainer action against the other tenant may be appropriate.

Ian Franzel has a solo practice in Real Estate, Probate, and Debtor/Creditor cases, and is also a volunteer attorney at Housing Justice Project, the KCBA Neighborhood Legal Clinics, and is an organizer/volunteer attorney at The Young Lawyers Division Public Library Walk-In Clinic.

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