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HOUSING JUSTICE PROJECT Presents Brown Bag Training Series July 9, 2010 ADVOCACY TRAINING - THE BASICS ANALYZING, NEGOTIATING & ARGUING HABITABILTY CLAIMS IN A SHOW CAUSE HEARING. Presenter Bio .

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Presenter Bio .

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  1. HOUSING JUSTICE PROJECT Presents Brown Bag Training SeriesJuly 9, 2010ADVOCACY TRAINING - THE BASICSANALYZING, NEGOTIATING & ARGUING HABITABILTY CLAIMSIN A SHOW CAUSE HEARING

  2. Presenter Bio. Barbara Harris is the Senior Managing Attorney for the Housing Justice Project, one of the Community Legal Services Programs within the King County Bar Association. Her previous experience includes serving for nearly nine years as a Pro Tem Judge for King County Superior Court and later as a Temporary, Term Limited Commissioner. Prior to working for King County Superior Court, Barbara was a staff attorney for eight years with one of Seattle’s Public Defender Agencies. She is a graduate of Seattle University School of Law, and is licensed to practice law in Washington and Oregon.

  3. KNOW THE GRID – Statutory Application • RCW 59.18.030 (13) A "tenant" is any person who is entitled to occupy a dwelling unit primarily for living or dwelling purposes under a rental agreement. • RCW 59.18.040 Living arrangements exempted from chapter. • RCW 19.48.010 • Definitions. • Any building held out to the public to be an inn, hotel or public lodging house or place where sleeping accommodations, whether with or without meals, or the facilities for preparing the same, are furnished for hire to transient guests, in which three or more rooms are used for the accommodation of such guests, shall for the purposes of this chapter and chapter 60.64 RCW, or any amendment thereof, only, be defined to be a hotel, and whenever the word hotel shall occur in this chapter and chapter 60.64 RCW, or any amendment thereof, it shall be construed to mean a hotel as herein described. • Issues: • Application of the RLTA to tenant’s occupancy where tenant had verbal month to month agreement with management. • Asserting habitability claims and off sets.

  4. KNOW THE GRID • RCW 59.18.050 • Jurisdiction of district and superior courts. • The district or superior courts of this state may exercise jurisdiction over any landlord or tenant with respect to any conduct in this state governed by this chapter or with respect to any claim arising from a transaction subject to this chapter within the respective jurisdictions of the district or superior courts as provided in Article IV, section 6 of the Constitution of the state of Washington.

  5. KNOW THE GRID • RCW 59.18.055 • Notice — Alternative procedure — Court's jurisdiction limited — Application to chapter 59.20 RCW. • (1) When the plaintiff, after the exercise of due diligence, is unable to personally serve the summons on the defendant, the court may authorize the alternative means of service described herein. Upon filing of an affidavit from the person or persons attempting service describing those attempts, and the filing of an affidavit from the plaintiff, plaintiff's agent, or plaintiff's attorney stating the belief that the defendant cannot be found, the court may enter an order authorizing service of the summons as follows:     (a) The summons and complaint shall be posted in a conspicuous place on the premises unlawfully held, not less than nine days from the return date stated in the summons; and     (b) Copies of the summons and complaint shall be deposited in the mail, postage prepaid, by both regular mail and certified mail directed to the defendant's or defendants' last known address not less than nine days from the return date stated in the summons.     When service on the defendant or defendants is accomplished by this alternative procedure, the court's jurisdiction is limited to restoring possession of the premises to the plaintiff and no money judgment may be entered against the defendant or defendants until such time as jurisdiction over the defendant or defendants is obtained.     (2) This section shall apply to this chapter and chapter 59.20 RCW.

  6. KNOW THE GRID • RCW 59.12.030 Unlawful Detainer defined. (IN PART) • A tenant of real property for a term less than life is guilty of unlawful detainer either:     (1) When he or she holds over or continues in possession, in person or by subtenant, of the property or any part thereof after the expiration of the term for which it is let to him or her. When real property is leased for a specified term or period by express or implied contract, whether written or oral, the tenancy shall be terminated without notice at the expiration of the specified term or period;     (2) When he or she, having leased property for an indefinite time with monthly or other periodic rent reserved, continues in possession thereof, in person or by subtenant, after the end of any such month or period, when the landlord, more than twenty days prior to the end of such month or period, has served notice (in manner in RCW 59.12.040 provided) requiring him or her to quit the premises at the expiration of such month or period;     (3) When he or she continues in possession in person or by subtenant after a default in the payment of rent, and after notice in writing requiring in the alternative the payment of the rent or the surrender of the detained premises, served (in manner in RCW 59.12.040 provided) in behalf of the person entitled to the rent upon the person owing it, has remained un-complied with for the period of three days after service thereof. The notice may be served at any time after the rent becomes due; • RCW 59.12.040 Service of notice – Proof of service. Notes: Termination of month to month tenancy: RCW 59.04.020, 59.18.200. Unlawful detainer defined: RCW 59.16.010.

  7. KNOW THE GRID • RCW 59.18.060 • Landlord — Duties. • The landlord will at all times during the tenancy keep the premises fit for human habitation, and shall in particular: • (4) Provide a reasonable program for the control of infestation by insects, rodents, and other pests at the initiation of the tenancy and, except in the case of a single family residence, control infestation during tenancy except where such infestation is caused by the tenant; • RCW 59.18.070 • Landlord — Failure to perform duties — Notice from tenant — Contents — Time limits for landlord's remedial action. • (3) Not more than ten days in all other cases.     In each instance the burden shall be on the landlord to see that remedial work under this section is completed promptly. If completion is delayed due to circumstances beyond the landlord's control, including the unavailability of financing, the landlord shall remedy the defective condition as soon as possible.

  8. KNOW THE GRID • RCW 59.18.070 • Landlord — Failure to perform duties — Notice from tenant — Contents — Time limits for landlord's remedial action. • RCW 59.18.080 • Payment of rent condition to exercising remedies — Exceptions. • The tenant shall be current in the payment of rent including all utilities which the tenant has agreed in the rental agreement to pay before exercising any of the remedies accorded him under the provisions of this chapter: PROVIDED, That this section shall not be construed as limiting the tenant's civil remedies for negligent or intentional damages: PROVIDED FURTHER, That this section shall not be construed as limiting the tenant's right in an unlawful detainer proceeding to raise the defense that there is no rent due and owing.

  9. KNOW THE GRID • RCW 59.18.290 • Removal or exclusion of tenant from premises — Holding over or excluding landlord from premises after termination date. • (1) It shall be unlawful for the landlord to remove or exclude from the premises the tenant thereof except under a court order so authorizing. Any tenant so removed or excluded in violation of this section may recover possession of the property or terminate the rental agreement and, in either case, may recover the actual damages sustained. The prevailing party may recover the costs of suit or arbitration and reasonable attorney's fees.

  10. KNOW THE GRID - Application of Civil Rules • CIVIL RULE 4 • PROCESS • (a) Summons--Issuance. • (1) The summons must be signed and dated by the plaintiff or his • attorney, and directed to the defendant requiring him to defend the action • and to serve a copy of his appearance or defense on the person whose name • is signed on the summons. • (4) No summons is necessary for a counterclaim or cross claim for any person who previously has been made a party. Counterclaims and cross claims against an existing party may be served as provided in rule 5. (b) Summons. (1) Contents. The summons for personal service shall contain: (i) the title of the cause, specifying the name of the court in which the action is brought, the name of the county designated by the plaintiff as the place of trial, and the names of the parties to the action, plaintiff and defendant; (ii) a direction to the defendant summoning him to serve a copy of his defense within a time stated in the summons; (iii) a notice that, in case of failure so to do, judgment will be rendered against him by default. It shall be signed and dated by the plaintiff, or his attorney, with the addition of his post office address, at which the papers in the action may be served on him by mail.

  11. KNOW THE GRID – Statutory/Civil Rule Application • RCW 4.28.020 • Jurisdiction acquired, when. • From the time of the commencement of the action by service of summons, or by the filing of a complaint, or as otherwise provided, the court is deemed to have acquired jurisdiction and to have control of all subsequent proceedings. • RCW 4.28.080 • Summons, how served. • Service made in the modes provided in this section shall be taken and held to be personal service. The summons shall be served by delivering a copy thereof, as follows: • (15) In all other cases, to the defendant personally, or by leaving a copy of the summons at the house of his or her usual abode with some person of suitable age and discretion then resident therein.

  12. KNOW THE GRID – Case Law Application • Salts v. Estes 943 P. 2d 275, 133 Wash. 2d 160 - Wash: Supreme Court, 1997 We are asked in this case to determine if service of process upon a person who was merely looking after the defendant's home in his absence was sufficient under our substitute service of process statute, RCW 4.28.080(15). RCW 4.28.080(15) has remained essentially untouched by ... • CONCLUSION • We do not adopt the principle in service of process that “close is good enough,” permitting service of process on virtually any person who by happenstance is present in the defendant’s home. We affirm the Court of Appeals and hold that a person who was a fleeting presence in the defendant's home was not “resident” therein for purposes of RCW 4.28.080(15).

  13. KNOW THE GRID – Case law Application Salts v. Estes • We hold for purposes of RCW 4.28.080(15) that "resident" must be given its ordinary meaning—a person is resident if the person is actually living in the particular home. Under no definition of "resident" found in any dictionary of the English language can any support be found for the contention that Ms. Terhorst was transmuted into a resident of the defendant's household by temporarily feeding his dog or taking in his mail. We decline to transform "resident" into "present" by judicial construction. The Legislature is free to amend the statute; we are not. The Court of Appeals was correct and we affirm the trial court's dismissal of Salt’s action.

  14. KNOW THE GRIDRCW 4.28.080Summons, how served. •      (16) In lieu of service under subsection (15) of this section, where the person cannot with reasonable diligence be served as described, the summons may be served as provided in this subsection, and shall be deemed complete on the tenth day after the required mailing: By leaving a copy at his or her usual mailing address with a person of suitable age and discretion who is a resident, proprietor, or agent thereof, and by thereafter mailing a copy by first-class mail, postage prepaid, to the person to be served at his or her usual mailing address. For the purposes of this subsection, "usual mailing address" shall not include a United States postal service post office box or the person's place of employment.

  15. KNOW THE GRID • Procedural Defenses. In some cases, you might be able to defend an unlawful detainer action by raising procedural defenses to your eviction. • Because the UDA is in derogation of the common law, the unique unlawful detainer procedural requirements are strictly construed in favor of the tenant. Kessler, 3 Wn. App. at 123. Dismissal is common even for minor procedural errors. See Community Invs., Ltd. v. Safeway Stores, Inc., 36 Wn. App. 34, 37-8, 671 P.2d 289 (1983) (failure to serve proper notice of unlawful detainer) • The implied warranty of habitability in residential leases is a departure from the common law rule of caveat emptor under which the tenant was responsible to examine the premises and protect itself by covenants to repair. Foisy v. Wyman, 83 Wn.2d 22, 515 P.2d 160 (1973).

  16. KNOW THE GRID - Case Law • Today the implied warranty of habitability is almost universally accepted within the context of residential leasing, See Foisy v. Wyman, 515 P.2d 160, 164, 83 Wash.2d 22 (1973) • ("The value of the lease today ... is that it gives the tenant a place to live, and he expects not just space but a dwelling that protects him from the elements of the environment without subjecting him to health hazards"); and see Residential Landlord-Tenant Act of 1973, Wash. Rev. Code Chapter 59.18 (dwelling units must be kept "fit for human habitation"; Washington public policy ensures "decent, safe, and sanitary…)

  17. KNOW THE GRID - Substantive Defenses • Generally, substantive defenses, counterclaims, and setoffs must be related to the issue of possession or excuse the breach on which the action is based. • For decades, Washington courts voiced a rule that the defendant in an unlawful detainer action could not assert set-offs or counterclaims. Young v. Riley, 59 Wn.2d 50, 52, 365 P.2d 769 (1961) (there is “an unbroken line of decision that in such proceeding the defendant may not assert a set-off or counterclaim”). This rule, however, was criticized as inaccurately representing the true state of the law.

  18. KNOW THE GRID- Case Law • This inconsistency was identified in Foisy v. Wyman, where the Washington State Supreme Court clarified that the affirmative defense of breach of warranty of habitability was available in an unlawful detainer action because it “goes directly to the issue of rent due and owing, which is one of the basic issues in an unlawful detainer action ….” 83 Wn.2d 22, 31-2, 515 P.2d 160 (1973). • The modern rule was further explained in Munden v. Hazlerigg, where the court held that “[a]n exception to the general rule is made when the counterclaim, affirmative equitable defense, or set-off is based on facts which excuse a tenant’s breach.” 105 Wn.2d 39, 45, 711 P.2d 295 (1985). Under this rule, many more set-offs, counterclaims, and affirmative defenses have been allowed in unlawful detainer actions.

  19. Mock Show Cause Hearing(HJP PLAYERS) The mock show cause hearing is based upon an actual HJP case, negotiated and argued approximately a month ago by one of our volunteer attorneys. • Defendant asserts a right to set offs. • Argues facts which excuse tenant’s breach. • Raises defense of breach of Warranty of Habitability. • Affirmative defense goes directly to the issue of rent due and owing. Conclude Mock Show Cause Hearing. Discussion.

  20. LCR 40.1 EX PARTE AND PROBATE DEPARTMENT b) Motions and Other Documents(1) Scope of Rules. This rule governs all matters presented to the Ex Parte and Probate Department. (2) Cases Not Assigned. Except as provided otherwise in these rules, all motions and proceedings pertaining to cases not assigned a case schedule or judge on filing or where the initial hearing is not held before the assigned judge shall be presented to the Ex Parte and Probate Department. See LCR 40(b)(2). The following cases or motions are heard by the Ex Parte and Probate Department: (Q) Unlawful Detainer Actions. The orders to show cause, and any agreed orders or orders that do not require notice, shall be obtained by presenting the orders, through the Clerk’s office, to the Ex Parte and Probate Department, without oral argument. The initial hearing on order to show cause shall be heard in person in the Ex Parte and Probate Department, provided that contested proceedings may be referred by the judicial officer to the Clerk who will issue a trial date and a case schedule and will assign the case to a judge. LCR 38.JURY TRIAL OF RIGHT       (b) Demand for Jury                    (1) Separate Document. The demand for jury trial shall be contained in a separate document.                    (2) Deadline for Filing Demand. In cases governed by a Case Schedule pursuant to LCR 4 (excluding domestic and paternity cases), a jury demand shall be filed and served no later than the final date to change trial designated in the Case Schedule, which shall be deemed the date on which the case is called to be set for trial within the meaning of CR 38(b). [Amended effective January 1, 1990; September 1, 1992; September 1, 2001; September 1, 2008.] 250.00 Jury Demand - 12 Jurors RCW 36.18.016(3) 125.00 Jury Demand - 6 Jurors RCW 36.18.016(3) Fee Schedule (Effective February 18, 2010) Fees must be paid in advance Pursuant to RCW 36.18.060

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  22. KNOW THE GRID – Case Law • Ludlow Props., LLC v Young, 4 Misc 3d 515 (Civ Ct, NY County 2004, Bedford, J.). Slip opinion (2004 NY Slip Op 24208) available at http://www.nycourts.gov/reporter/3dseries/2004/2004_24208.htm • Ludlow Properties, LLC v. YoungJun. 21, 2004 • Appellate Court:Trial Court:Civil Housing Court, New York County Trial Judge:Hon. Cyril Bedford Type of Action or Proceeding:Nonpayment Proceeding - Warranty of Habitability

  23. Know the Grid – Case Law Ludlow Props., LLC v Young, 4 Misc 3d 515 (Civ Ct, NY County 2004, Bedford, J.). Slip opinion (2004 NY Slip Op 24208) • The Court held that an abatement based upon the implied warranty of habitability protects only against conditions that materially affect the health and safety of tenants or deficiencies that in the eyes of a reasonable person, deprive the tenant of essential functions which a residence is expected to provide. The Court ruled that "there can be no doubt that the presence of the bed bugs in the premises satisfies this criteria for an abatement". Accordingly, the Court determined that the only remaining issue was the diminution in value of the subject premises.

  24. Holding in Ludlow Properties, LLC v. Young Court awarded tenant a 45 percent abatement for infestation of bed bugs upon consideration of the size of the premises, the severity of the infestation, landlord's diligent effort to eradicate the condition and the continued, although limited, use of the premises by tenant. Source: NYLJ, 18:1, Jun. 21, 2004 Referred Statutes:Real Property Law § 235-b Summary:Tenant withheld rent alleging landlord's breach of warranty of habitability as a result of an unabated bedbug infestation. Landlord did not deny the existence or extent of the condition. However, landlord argued tenant is not entitled to an abatement as a diligent effort has been taken to eradicate the condition.

  25. END OF POWERPOINT PRESENTATION.

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