Landlord Tennant Law – Hanis Irvine Prothero PLLC

HIP Welcomes Tamara Tatum

Tamara Tatum Paralegal to Attorney Brian J. Hanis — Tamara Tatum
Paralegal to Attorney Brian J. Hanis

It is our pleasure to announce that Tamara Tatum joined Hanis Irvine Prothero on September 8, 2015. Tamara is part of the Firm’s Paralegal team, and will be assisting attorney Brian Hanis in the areas of Family Law, Bankruptcy, Landlord Tenant and Estate Planning.

Tamara has a Bachelor of Arts Degree in Criminal Justice and a Minor in Sociology from Washington State University and comes to us with several years of experience working for litigation law firms.

Please join us in welcoming Tamara to HIP.

Bankruptcy and Garnishment

June 16, 2014 – A common cause for people to file for bankruptcy relief is garnishment. It is hard to have 25% of your net paycheck taken! This typically results in a snowball effect; short to pay for utilities, mortgage, rent, food, etc. Once this happens, people think that the funds are gone and there is nothing you can do. That is not correct!

How a wage garnishment works is that an order from a court is given to your employer requiring it to withhold 25% of your net paycheck. This will go on for a period of 60 days. At the end of the 60 days the creditor must then get an order directing the employer to turn the funds over. At that point, the creditor has the funds (quick side note, it does not always work this way but the end result is typically the same)

How bankruptcy helps is that it can stop the garnishment while it is pending. As an added bonus, it can even reverse a garnishment that has already been completed.

How it stops a bankruptcy is simple: The day you file for bankruptcy relief the creditor can no longer take any action to collect. That means it has to stop any pending garnishment. The funds held by your employer (or sometimes by the creditor) must be turned back over to you.

How it reverses a completed garnishment is a little more time sensitive. In bankruptcy, one is presumed insolvent the 90 days prior to filing for relief. Basically, this means that any payments to creditors during that time (whether voluntary or involuntary) is a preference and can be reversed. Garnishments are involuntary payments.

For a garnishment, if it is completed in that 90 day period it can be reversed. In other words, if the day the order is issued directing your employer to pay the funds to the creditor is in the 90 day period, it can be reversed. For example, one is garnished from November 1 to January 1. The creditor then gets an order on January 2 to turn over the funds. If the debtor files for bankruptcy relief by April 1 (within 90 days of January 2), the employer must give those funds back to the debtor.

There are other factors that may play a part of this. So, if you are facing a garnishment talk with an expert who can help you with understanding what you are facing.

For more information contact Brian Hanis, Bankruptcy Attorney, Hanis Irvine Prothero, PLLC.

photo of Brian Hanis — Brian J. Hanis
Attorney at Law

253-520-5000 or email bhanis@HIPLawfirm.com

FREE 30 minute bankruptcy consultation.

Rental Deposits

RENTAL DEPOSITS

An issue I regularly see in residential landlord-tenant relationships surrounds deposits. Landlords, it is worth a few minutes of your time to make sure you understand how to apply them. In the long run, the minimal extra time you spend to follow them could save you thousands that could have easily been avoided.

First, if you are going to require a deposit, there must be a written rental agreement. The agreement shall include the terms and conditions under which the deposit can be withheld (RCW 59.18.260 of the Residential Landlord/Tenant Act).

I want to add a point here. Tenants constantly try to have the deposit applied to an obligation under the lease, such as unpaid rent. It is your discretion whether to apply it. I recommend never doing so until you have the unit back and know the extent of other damages.

An additional requirement of RCW 59.18.260 is that there must be provided to the tenant a written checklist. A piece of advice, have the tenant sign an acknowledgment that you provided the checklist, in case the tenant does not return it, and provide the tenant a copy of this statement. Failure to provide the checklist could require you having to return the deposit, whether damages by the tenant occurred or not.

Landlords, after receipt of the deposit, the funds must be placed into a trust account and it must be disclosed to the tenant where the funds are being held (RCW 59.18.270). This is simply accomplished by adding a clause in the lease disclosing the bank it will be held at.

It is common within lease agreements to add language that a part of the deposit is “non-refundable.” RCW 59.18.285 states that any funds paid that are non-refundable may not be designated as a “deposit” or as part of the deposit. The rental agreement must clearly state that the fee is non-refundable. If this is not done, then the “fee” is converted to a refundable deposit subject to the terms of the lease. The conversion to “refundable” does not mean the tenant is automatically entitled to that portion being refunded. It simply means that there must now be a basis to retain it as disclosed in the lease agreement.

The most common problems, and where landlords get in the most trouble, arise for deposits after the tenant leaves. Specifically, when the funds must be returned. RCW 59.18.280 states that the notice for retention of the deposit, along with any refund due to the tenant, must be given within 14 days of the tenant vacating the premises or the landlord learns of abandonment. The notice and refund must be sent first-class, postage prepaid, properly addressed to the last known address of the tenant, and placed in the United States mail by the 14^th day.

Let’s break this down some. First, the statement must be a full and specific statement. Simply stating “damages” or vague language to that affect is not sufficient. Break it down as best you can.

Second, a common excuse of landlords is they do not know the “extent” of damages which is why it was not sent within 14 days. It should not be difficult to enter the unit and determine the damages. There really is no excuse for this. The real challenge centers on the actual costs. For costs to repair/replace, it is sufficient to state an estimate of the costs. It can be adjusted later. Do not just make up a number though. If you can go to a hardware store or have a third party give an estimate, get it. If that is not possible, then give you best estimate. Do not be unreasonable though. $5.00 for a nail is not reasonable.

Another piece of advice, where possible add repairs into the lease. For example, if the landlord is going to do the work, put in the lease that the work will be completed at a specific hourly rate.

Next, the 14 day rule. This is not a mere suggestion. Landlords, you have 14 days with one exception, circumstances beyond your control prevented providing the statement timely. Being too busy is not an excuse. In my experience, there is rarely a time when the exception applies.

Last, where to send it? It is common for a tenant to not provide a forwarding address. The statute states it simply has to be sent to the “last” known address, which can be the unit rented from you. Do make sure that you send it through the mail, first class, postage prepaid. This requirement is there because people will put forwarding addresses for their mail. If it comes back to the unit, simply hold it to prove that it was sent.

These rules may seem a little excessive but regardless they have to be followed. Courts can and do hold landlords strictly to them on a regular basis. Believe me when I say it is worth the time to follow them exactly. Failure to do so could lead to significant costs, including paying up to twice the deposit and attorney fees and costs of the tenant, if they are not followed. If in doubt give our firm a call and we can discuss what needs to be done.

How Bankruptcy Can Save Your Home

HOW BANKRUPTCY HELPS SAVE YOUR HOME

Bankruptcy, although the big bad word when it comes to finances, can and does help people every day. One very big way it can help is by potentially allowing someone to keep their home.

In today’s world, people are finding themselves falling behind on mortgage payments for any number of reasons. Foreclosure is started leaving the owners with having to come up with large amounts of money to catch up the arrears on their home, in order to keep it, which one does not have. The owner then attempts other ways to try to save the home including trying to qualify for a loan modification or refinance of the property. However, this does not always work, leaving the owner in a tough spot. This is where bankruptcy can help.

In a chapter 13 bankruptcy, one creates a plan payment. The plan typically last for 60 months. How the plan helps is it takes your arrears and spreads the amount over the 60 months of the plan. An added bonus, the bankruptcy stops ongoing interest or penalties on the arrears from accruing.

Something that is important to understand about this though is that the owner must keep the house mortgage payment current during this time period. The first question one would need to ask then: can I continue to make the current payment on time? The bankruptcy will not change the interest rate or the monthly payment or any other terms, with a few exceptions, it will simply allow you a way to catch your payment up over 60 months.

For example, your current payment is $1,500.00 per month and you are behind $6,000.00. Under the plan your payment would be $1,600.00 per month ($1,500.00 for the ongoing and $100.00 for the arrears). By the end of the 60 months you have kept your ongoing payment current and caught up on the arrears.

Now, it is not always clear cut as this example provides. Other factors come into play in figuring your plan payment as well, such as income, court cost, fees, and other debts. Regardless, it may be worth your time to talk with a bankruptcy attorney if you are facing a foreclosure to see if bankruptcy can help. This avenue may just allow you to keep your home.

Evictions, What to Do?

Everyday landlords are dealing with evictions, otherwise known as unlawful detainer actions. Whether it is from a tenant failing to pay rent, not disposing of garbage, or any other violations. The question that I often face when dealing with such is, what to do next?

First, some information that everyone dealing with a landlord/tenant matter should understand. For residential leases, although a written lease is not required, it is highly recommended. The Residential Landlord/Tenant Act (RCW 59.18) and Manufactured/Mobile Home Landlord-Tenant Act (RCW 59.20) control these leases, whether verbal or written, and provide the basic parameters to be followed. If you are involved in a landlord/tenant relationship, you should familiarize yourself with this Act.

For commercial leases, it is recommended that you have a written lease. Without it, there is very little guidance to the agreements provided by law (RCW 59).

The most important thing to remember when dealing with an issue, whether as a landlord or a tenant, is that a process must be followed. If any step is not followed, or the allocated time is not provided, you can find yourself back at square one, or losing potential rights.

The process of evicting someone is similar whether dealing with a residential or commercial lease. First, a proper notice must be served with the proper time allocated. It is important to understand that even serving the notice has certain requirements. The notice not being prepared correctly (ie. the wrong notice is used or incorrect information included), or not served properly, are the most common reasons Landlords find themselves having to start over.

After the time period has expired, the Landlord has a number of options to pursue based upon the response of the violating tenant, including proceeding to the courts. It is important to understand that, except in limited situations, you MUST give the notice before proceeding with an eviction. For tenants, the same can apply to you when you have an issue with a landlord.

If the choice is to proceed to the courts, typically the next step is setting a show-cause hearing. This directs the violating tenant to appear and present legal reason why they did not comply with the notice. If the court disagrees with the tenant, then an order is issued for a Writ of Restitution directing the Sheriff to remove the tenant.

The Sheriff then has 20 days to remove the tenant(s). First, the sheriff will serve another notice giving the tenant 72 hours to vacate, not including weekend or holidays. Next, a time is set up for the sheriff to remove the tenant(s). At this time, the Landlord must have a crew sufficient to remove the belongings of the tenant(s) within one hour.

Last, the Landlords must deal with the deposit, if applicable. The law states that within 14 days of the tenant vacating, a proper notice must be provided to the last known address of the basis for retention of the deposit, and refund of any amounts due. Failure to do so could lead to a tenant receiving judgment for double the amount of the deposit, even if the money is owed.

The process to evict someone has very specific guidelines to be followed. If you are facing such, it is recommended to seek legal assistance to ensure that the proper process is followed, which could save you time and money.