Before we examine the details of the statutes which relate to unlawful detainer actions your first question might be, “What is an unlawful detainer?”
If a person possesses real property without a right to do so, the person is then described as unlawfully detaining the property. This can happen in several ways:
- Failing to move after a lease has expired.
- Failing to move after being served with a notice to quit or vacate for non-payment of rent or other breach of a rental agreement
- Continuing to occupy a property after a foreclosure sale.
- Occupying a property without the owner’s permission
Such possession entitles the owner of the property to file a lawsuit for “unlawful detainer,” asking the court to return possession of the real property by court order. An unlawful detainer suit may also request a judgment against the tenant for unpaid rent and damages
The RCWs that control the service of the summons in unlawful detainer actions are set forth in RCW 59.12 and RCW 59.18. As mentioned in another section of this course, the provisions of RCW 59.18 only apply to residential landlord-tenant matters. That said, as you will see below, the provisions of both statutes are almost identical with regard to serving a summons and complaint.
59.12.070
Complaint — Summons.
The plaintiff in his or her complaint, which shall be in writing, must set forth the facts on which he or she seeks to recover, and describe the premises with reasonable certainty, and may set forth therein any circumstances of fraud, force or violence, which may have accompanied the forcible entry or forcible or unlawful detainer, and claim damages therefore, or compensation for the occupation of the premises, or both; in case the unlawful detainer charged be after default in the payment of rent, the complaint must state the amount of such rent. A summons must be issued as in other cases, returnable at a day designated therein, which shall not be less than seven nor more than thirty days from the date of service, except in cases where the publication of summons is necessary, in which case the court or judge thereof may order that the summons be made returnable at such time as may be deemed proper, and the summons shall specify the return day so fixed.
There are two items of note in the above RCW.
First – The summons is issued with a return date. This is the date by which the tenant must respond if he is going to do so.
Second – The return date “shall not be less than seven nor more than thirty days from the date of service.” For example, if the return date is set for the 20th then the deadline for service is the 13th. If service is not accomplished by the deadline a new summons must be issued. Some attorneys use “self amending” wording to circumvent this problem. Self amending wording is similar to “… on the 7th day following service upon you.”
59.12.080
Summons — Contents — Service.
The summons must state the names of the parties to the proceeding, the court in which the same is brought, the nature of the action, in concise terms, and the relief sought, and also the return day; and must notify the defendant to appear and answer within the time designated or that the relief sought will be taken against him. The summons must be directed to the defendant, and in case of summons by publication, be served at least five days before the return day designated therein. The summons must be served and returned in the same manner as summons in other actions is served and returned.
Only the last sentence is of importance to the process server and it deals with two issues to which the server must pay attention.
First – Service is to be conducted “in the same manner as summons in other actions.” This refers back to RCW 4.28.080 which is discussed in great detail elsewhere in this course. Since most unlawful detainer actions are of a residential nature subsection (15) is of particular importance.
Second – The process server’s “return” or “proof” is to be of the same style as for a summons. This will be either a Declaration of Service or an Affidavit of Service.
Don’t be concerned about the mention of “at least five days before the return day designated therein”, this applies only if the service is being accomplished by publication which is not within the purview of the process server.
59.18.365 (in part)
Unlawful detainer action — Summons — Form.
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(1) |
The summons must contain the names of the parties to the proceeding, the attorney or attorneys if any, the court in which the same is brought, the nature of the action, in concise terms, and the relief sought, and also the return day; and must notify the defendant to appear and answer within the time designated or that the relief sought will be taken against him or her. The summons must contain a street address for service of the notice of appearance or answer and, if available, a facsimile number for the plaintiff or the plaintiff’s attorney, if represented. The summons must be served and returned in the same manner as a summons in other actions is served and returned. |
Most of the above is primarily of importance to the plaintiff or his or her attorney. That said, it is important to note the “return day” is mentioned again. Also the manner of service and “return” refers back to RCW 4.28.080. You will note that unlike the general service provisions in RCW 59.12.080, RCW 59.18.365 does not address the timing of the return date in relation to the date of service. Since RCW 59.12 applies to residential evictions to the extent the Residential-Landlord Tenant Act does not have a specific provision to the contrary, the return date is the same as set forth in RCW 59.12.070, i.e. “not be less than seven nor more than thirty days from the date of service.”
59.18.370
Forcible entry or detainer or unlawful detainer actions — Writ of restitution — Application — Order — Hearing.
The plaintiff, at the time of commencing an action of forcible entry or detainer or unlawful detainer, or at any time afterwards, upon filing the complaint, may apply to the superior court in which the action is pending for an order directing the defendant to appear and show cause, if any he or she has, why a writ of restitution should not issue restoring to the plaintiff possession of the property in the complaint described, and the judge shall by order fix a time and place for a hearing of the motion, which shall not be less than seven nor more than thirty days from the date of service of the order upon defendant. A copy of the order, together with a copy of the summons and complaint if not previously served upon the defendant, shall be served upon the defendant. The order shall notify the defendant that if he or she fails to appear and show cause at the time and place specified by the order the court may order the sheriff to restore possession of the property to the plaintiff and may grant such other relief as may be prayed for in the complaint and provided by this chapter.
It is not unusual for the summons and complaint to be accompanied by an Order to Show Cause along with other supporting documents (motions and declarations). Though not specifically stated, service of the order and supporting documents is made in the same manner as for a summons because these documents do not contain wording threatening the liberty of the defendant.
A Special Consideration
Returning for a moment to RCW 59.12.070 which was mentioned at the beginning of this lesson, it must be noted that some clients will assign documents for service in a case which has not yet been filed. This creates a somewhat difficult situation for the process server in that the “return date” has not yet been written in on the summons as required by this statute.
The client will include instructions to the server that he or she is to write the return date in the space provided on the summons at the time of service. Generally the client requests the date be 7 days from the date of service but there are a number of variations. After the service is accomplished the server is also required to write that date in on other copies of the summons, including the original which will be filed with the court.
This type of request creates a number of potential stumbling blocks for the server.
First – It places an added responsibility on the server to calculate and correctly enter the return date on the summons. Document preparation is, in every other instance, the responsibility of the client. Potential problems include:
- The return date might be calculated incorrectly.
- The return date might be written in on the summons incorrectly.
- The return date might be written in on the service summons but incorrectly on the summons for filing or for the client’s file.
- If the client also serves an order to show cause with the summons, the return date must also match an available court date, which varies widely from jurisdiction to jurisdiction.
Second – It increases the amount of time the server is likely to be in contact with the target (servee). This is always dangerous but there is little which can be done to avoid it in these circumstances. The date can’t be written in ahead of time because the service may not occur on that day (target gone, target doesn’t answer door, etc). This means it must be written in “at the door” and those few extra moments could provide the time needed for an angry person to become even angrier.
Third – It creates a situation in which it is easier for the target to avoid service by quickly closing the door before the date is written in and the summons is presented. This leaves the server standing out in the cold. The target, now informed someone is trying to serve him, is much less likely to open the door again thus making service considerably more difficult.
The best solution to this situation is to decline the assignment. If every professional server declined this type of assignment the problem would quickly go away. Unfortunately that is not likely to happen. There are, however, some useful tools to make the situation more palatable.
Figure out the return date before you enter on to the target’s property. This allows you to take your time and to check your calculation more than once. Write the date on a note pad and leave it in your car when you go to the door. Be sure you have the date firmly in mind before you knock on the door or write it on a pad you carry with you to the door and refer to it as you write the date on the service summons.
Another method is to make a number of extra copies of the summons and to write a different date on each one. In preparing to approach the door take the copy with the appropriate return date on it with you for service. If you serve it then write that date on the original (for filing) and the other copies (for the client’s file and for attachment to your proof). If you don’t serve it then throw that one away and use the next one in the series on your next attempt.
Conclusion
Unlawful detainer actions are time sensitive. Any delay in obtaining service is going to cost your client money in the form of unpaid rent or additional damage to the premises. These documents should always be given special attention to make sure they are attempted diligently.
Service Instructions Summary
Present the documents to:
| Who | When & Where | |
| 1. | Serve in the manner of a summons | Serve in the manner of a summons |
NOTE: The summons in an unlawful detainer action is issued with a return date. The deadline for service is 7 calendar days prior to the return date. Proper time computation is vital.
NOTE: Diligence is important. If these documents are not served by the deadline then the plaintiff may seek an order allowing service by alternative means, such as posting and mailing. The court will only issue such an order if proper diligence has been demonstrated.
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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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