Commercial Eviction

Most evictions begin with a written notice (a/k/a “unlawful detainer notice”, or “eviction notice”).  This is required even if the landlord believes the tenant cannot pay, or the landlord does not wish to give an option to cure and just wants the tenant out.

One situation that may not require a written notice prior to starting the commercial eviction process is when the lease expires and the tenant holds over without the landlord’s permission. In this situation whether a notice is required depends on the terms of the lease and any other agreements between the parties, and sometimes on the course of dealing and other actions of the parties that vary from the written agreements. Note that if the landlord accepts rent for a period after the lease expires, this creates a month-to-month tenancy.

Commercial eviction notice forms. Use these forms for commercial rental properties.

Pre-trial writ of restitution. A commercial landlord may seek possession via a writ of restitution prior to trial.[1] The court will set a bond to protect the commercial tenant. Because the landlord is granted early possession, courts tend to set the bond quite high.

Doubling rent in judgment. A commercial landlord is entitled to judgment for twice the rent amount for the period the property is in unlawful detainer status (the period that the tenant was in the property contrary to a proper legal notice).[2] The unlawful detainer statute stipulates broadly that the court “shall also assess the damages…alleged in the complaint and proved” and that “the judgment shall be rendered against the defendant for twice the amount of damages thus assessed and of the rent, if any, found due.”[3]

Nevertheless, Washington case law suggests the doubling of damages in commercial evictions may be limited to “rent” in the narrowest sense – even if other items are defined in the lease as additional rent, the lease is triple-net, etc.[4]

Bankruptcy. Bankruptcy filings are far more common in commercial eviction cases. At a minimum, this causes significant delay and additional attorney fees and court costs. The landlord must cease all eviction activity and seek in bankruptcy court relief from the automatic stay.

The automatic stay is limited to a 30-day period if the landlord obtained the writ of restitution prior to the tenant filing a bankruptcy petition.[5]  During the 30-day period, the tenant has a right to continue the automatic stay by paying into the court registry the rent in arrears and that has accrued since filing of the petition.[6]

The tenant also has a right to assume the lease.[7]

Sheriff bond. In addition to a sheriff fee to post the writ of restitution, in commercial cases the landlord must also post a sheriff bond.[8]

Show Cause hearing. While the statutes do not provide for a commercial show cause hearing, case law establishes a basis for such a hearing rather than a trial.[9]  “While it is understandable that a party may be surprised by the use of a show cause hearing in a commercial landlord-tenant dispute, nothing in the statute indicates the court may not allow a show cause proceeding.”[10] If there are factual disputes the court might set the matter for trial.

This is just a short list of points to consider in commercial evictions in Washington. Contact our landlord-tenant attorney for more information about commercial evictions and your circumstances.