The documents described here are not judicial documents but rather of a pre-judicial nature. This generally means a court filing to open a case has not occurred. In fact, depending on the actions of the tenant, the filing may never occur.
Do not let their description as “pre-judicial” reduce their importance in your mind. Indeed, if these documents are not served properly any subsequent court case may fail based on their improper service.
Since various statutes describe such notices in broad terms, it is not unusual for their appearance to vary considerably. Despite such variations they must be recognized for what they are and how the rules of service apply. Some may appear as a business letter, others as a more formal notice, and still others may even have a case heading. Nevertheless, they all must contain the same basic information and demands to the tenant of a particular premises.
Though there are others, landlord-tenant pre-judicial notices are usually seen as one of the following:
- Notice to Pay Rent or Vacate
- 3 Day Notice to Pay Rent or Vacate
- Termination of Tenancy
- 10 Day Notice to Pay Rent or Quit Premises
- 20 Day Notice to Vacate
One of three methods of service is required for any of the above:
- Personal (in hand) service
- Premises service plus mailing (similar to, but not the same as, abode service)
- Posting plus mailing
Service is generally governed by RCW 59.12.040. Although the statute is not broken down into subsections it will be dissected into its constituent parts for easier discussion. The first part of which reads as follows:
RCW 59.12.040
Service of notice — Proof of service.
Any notice provided for in this chapter shall be served either (1) by delivering a copy personally to the person entitled thereto; or (2) if he be absent from the premises unlawfully held, by leaving there a copy, with some person of suitable age and discretion, and sending a copy through the mail addressed to the person entitled thereto at his place of residence; or (3) if the person to be notified be a tenant, or an unlawful holder of premises, and his place of residence is not known, or if a person of suitable age and discretion there cannot be found then by affixing a copy of the notice in a conspicuous place on the premises unlawfully held, and also delivering a copy to a person there residing, if such a person can be found, and also sending a copy through the mail addressed to the tenant, or unlawful occupant, at the place where the premises unlawfully held are situated.
This section covers the vast majority of assignments a process server will see regarding these types of notices. Note the mailing must be sent to the tenant at the address “where the premises unlawfully held are situated.”
Although clause (1) does not contain a mailing requirement you will note that clause (2) and (3) do require a mailing to occur before service is considered complete. It is good practice to conduct the mailing in all three circumstances. In fact, if you are aware of the address “where the premises unlawfully held are situated” and the servee’s residential address (if different from the premises address) then do the mailing to both addresses.
Clause (1) allows for personal service. No mailing is required but best practices indicate it should be made.
Premises Plus Mailing Service (Non-corporation)
Clause (2) allows for service on someone of suitable age and discretion at the premises that is the subject of the notice. Note that this is different from “abode service” in the context of the service of a summons and complaint under RCW 4.28.080(15). The reason being that the notice is served at the premises that the person to whom the notice is directed (usually a tenant) is occupying. Most often, the premises is in fact the person’s abode. However, that is not always the case as there are many times notices are served with regard to non-residential leases. It is also possible the tenant has sublet the premises to a third party who is occupying it.
Take for example a restaurant where the tenant is a sole proprietor (corporations are addressed separately in the statute). The notice would not be left with someone at the business owner’s abode. Instead, if the business owner was not present at the restaurant at the time of service, the notice should be left with someone of suitable age and discretion at the restaurant, such as a manager, other person in charge, or an employee. Note that in the context of service on someone’s abode, the best practice is to only leave the document with a co-resident. However, there is no actual requirement in the statute that the person be a co-resident.
As already mentioned a mailing is required. To add further to the confusion, however, the mailing is to be sent to the person to whom the notice is addressed, i.e. most often the tenant, at his or her place of residence – this is the case even with a non-residential lease such as the restaurant example given above. So, using that example, the notice would be left at the restaurant with a manager, and then mailed to the business owner at the business owner’s place of residence.
Posting Plus Mailing Service (non-corporation)
Clause (3) allows the notice to be posted “in a conspicuous place on the premises”, this is generally the front door of either the residence or the business. However, in order to be able to use posting, the process service must first determine that the place of residence of the person to whom the notice is directed cannot be found or that a person of suitable age and discretion cannot be located at the premises. Only after making that determination can service be affected by posting. Once the notice is posted, the notice must also be delivered to a person residing at the premises – but only if such a person can be found. In our restaurant example, for instance, it’s highly unlikely that such a person could be found. In addition, a mailing is required. This time, though, the mailing is addressed to the tenant (or unlawful occupant) at the actual premises, not the residence as required in clause (2).
Given the confusion created by the statute when mailing is required, a best practice would mandate that, unless the premises is in fact the tenant or unlawful occupant’s residence, the mailing be made to both the person’s residence as well as to the actual premises. This “belt and suspenders” approach is likely to cut down on arguments that the mailing was not done properly. So, back to our restaurant example again, whether the notice is left with someone of suitable age and discretion or whether it is posted, the notice should be mailed both to the tenant’s residence as well as to the location of the restaurant.
The next part of the RCW relates to what is a rather unusual circumstance in which service must be had upon subtenants of the tenant.
Service upon a subtenant may be made in the same manner: PROVIDED, That in cases where the tenant or unlawful occupant, shall be conducting a hotel, inn, lodging house, boarding house, or shall be renting rooms while still retaining control of the premises as a whole, that the guests, lodgers, boarders or persons renting such rooms shall not be considered as subtenants within the meaning of this chapter, but all such persons may be served by affixing a copy of the notice to be served in two conspicuous places upon the premises unlawfully held; and such persons shall not be necessary parties defendant in an action to recover possession of said premises.
This allows service on the subtenants as described in the first part of the statute but also provides an alternative method of service for situations involving a hotel, inn, lodging house, etc. The names of the individual subtenants in these situations need not be determined because they are not parties to the actions. Note it is required to post the notice in two conspicuous places. Posting only one notice or posting both notices in the same location could cause the ensuing court case to fail or be delayed.
The third part deals with service of the notices upon a corporation.
Service of any notice provided for in this chapter may be had upon a corporation by delivering a copy thereof to any officer, agent or person having charge of the business of such corporation, at the premises unlawfully held, and in case no such officer, agent or person can be found upon such premises, then service may be had by affixing a copy of such notice in a conspicuous place upon said premises and by sending a copy through the mail addressed to such corporation at the place where said premises are situated.
Interestingly, the statute requires that if the notice is served by leaving it with any officer or other specified person, the service must take place at the premises unlawfully held. Therefore the notice cannot be left with the same person at any other location. This can cause confusion because typically notices on corporations can be served on the registered agent for the corporation. In this context, however, unless the registered agent is actually located at the premises unlawfully held, service on the registered agent will not be sufficient. Fortunately, posting and mailing is provided as an alternative. The mailing is addressed to the corporation at the premises.
The last couple of parts provide some “housekeeping” but are still vital to the statute as a whole and important to proper service.
Proof of any service under this section may be made by the affidavit of the person making the same in like manner and with like effect as the proof of service of summons in civil actions.
That allows the process server to provide his client, and perhaps the court should the case be filed, with proof of service in a standard way.
When a copy of notice is sent through the mail, as provided in this section, service shall be deemed complete when such copy is deposited in the United States mail in the county in which the property is situated properly addressed with postage prepaid: PROVIDED, HOWEVER, That when service is made by mail one additional day shall be allowed before the commencement of an action based upon such notice.
That part helps to define when service is complete under those circumstances where a mailing is required.
The mailing must be deposited “in the United States mail.” Simply putting it in the outgoing mail basket for the mailman to pick up is not sufficient. The server needs to find an actual mailbox and deposit it there.
The mailing must take place “in the county in which the property is situated.” Though one may wonder about the need for this requirement the fact of the matter is that it is a requirement. This is an easy requirement to forget and, though the likelihood of the place of mailing ever being questioned is small, it would be unfortunate to have a court case overturned or delayed because the mailing took place in the wrong county.
The mailing must be “properly addressed with postage prepaid.” This is similar to the old saying that for the lack of a nail the shoe was lost, for the lack of a shoe the horse was lost, and so on until the war was lost, all for the lack of a nail. In this event a court case could be lost for the lack of a stamp.
Manufactured/Mobile Home Landlord-Tenant Act
Service of pre-judicial notices in a mobile home park is very similar to other landlord tenant notices but with an important exception.
NOTE: Service of notices in the context of a tenant in a mobile home park can only be accomplished by personal service, or if the tenant cannot be found, by posting and mailing to the tenant at the tenant’s last known address. “Premises plus mailng service” is not allowed. RCW 59.20.150.
RCW 59.20.150
Service of notice on landlord or tenant.
| (1) | Any notice required by this chapter to be given to a tenant shall be served on behalf of the landlord: | ||
| (a) | By delivering a copy personally to the tenant; or | ||
| (b) | If the tenant is absent from the mobile home, manufactured home, or park model by affixing a copy of the notice in a conspicuous place on the mobile home, manufactured home, or park model and also sending a copy through the mail addressed to the tenant at the tenant’s last known address. | ||
| (2) | Any notice required by this chapter to be given to the landlord shall be served by the tenant in the same manner as provided for in subsection (1) of this section, or by mail to the landlord at such place as shall be expressly provided in the rental agreement. | ||
| (3) | The landlord shall state in any notice of eviction required by RCW 59.20.080(1) as now or hereafter amended the specific reason for eviction in a clear and concise manner. | ||
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This is a rough diagram of a typical courtroom in the state of Washington. Courtrooms vary a great deal from city to city and county to county but they all have the same basic structure.
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