HOUSE BILL REPORT

HB 1305

As Reported by House Committee On:

Judiciary

Title: An act relating to unlawful entry on certain properties.

Brief Description: Concerning unlawful entry on certain properties.

Sponsors: Representatives Barkis, Kirby, Klippert, Stambaugh and Haler.

Brief History:

Committee Activity:

Judiciary: 1/25/17, 2/16/17 [DPS].

Majority Report: The substitute bill be substituted therefor and the substitute bill do pass. Signed by 13 members: Representatives Jinkins, Chair; Kilduff, Vice Chair; Rodne, Ranking Minority Member; Muri, Assistant Ranking Minority Member; Frame, Goodman, Graves, Haler, Hansen, Kirby, Klippert, Orwall and Shea.

Staff: Cece Clynch (786-7195).

Background:

Criminal Trespass.

Knowingly entering or remaining unlawfully in a building is Criminal Trespass in the first degree, a gross misdemeanor. A person is guilty of Criminal Trespass in the second degree if he or she knowingly enters or remains unlawfully in or upon premises of another under circumstances not constituting Criminal Trespass in the first degree. Criminal Trespass in the second degree is a misdemeanor.

A person "enters or remains unlawfully" in or upon premises when he or she is not licensed, invited, or privileged to enter or remain. A license or privilege to enter or remain in a building which is only partly open to the public is not a license or privilege to enter or remain in a part of a building which is not open to the public. "Premises" includes any building, dwelling, structure used for commercial aquaculture, or any real property.

In a prosecution for Criminal Trespass in the first or second degree, it is a defense that:

• the building was abandoned. The word "abandoned" is not defined. Giving the word its ordinary, dictionary definition, the Washington Court of Appeals has held that testimony that a home was being prepared for sale was sufficient to show that it was not abandoned in that the owner, a bank, did not intend to surrender the property or its interest in the property due to its condition or for any other reason;

• the premises were at the time open to members of the public and the actor complied with all lawful conditions imposed on access to, or remaining in, the premises;

• the actor reasonably believed that the owner of the premises, or other person empowered to license access thereto, would have licensed him or her to enter or remain; or

• the actor was attempting to serve legal process, the actor did not enter into a private residence or other building not open to the public, and the entry onto the premises was reasonable and necessary in order to accomplish service.

Unlawful Detainer.

Washington's Residential Landlord-Tenant Act (RLTA) governs the relationship between landlords and tenants of residential dwelling units, establishes each parties' duties, and establishes procedures for each side to enforce their rights. The RLTA prohibits a landlord from removing or excluding a tenant from the premises except via a court order which so authorizes. It is also unlawful for a landlord to intentionally cause termination of a tenant's utility services unless it is necessary to make repairs, and then only for a reasonable time necessary for the repairs.

The initial step of the remedial process which landlords may use to address tenant noncompliance varies depending upon the duty at issue. With respect to failure to pay rent in a timely fashion, the landlord may begin the process by utilizing a three-day notice to pay or vacate. If the tenant pays in full within the three days, the landlord must stop the process. Some breaches, such as breach of a no-pet rule, require a 10-day notice to comply or vacate. Permanently damaging the property or engaging in drug-related or gang-related activity may be addressed by a three-day notice to vacate. With respect to these latter violations, the landlord is not required to allow the tenant to correct the problem and stay.

In the event that a tenant fails to comply with a notice to comply or vacate, or after a notice to vacate has been served on a tenant or someone unlawfully holding the premises, the landlord may utilize the RLTA's court process, called an unlawful detainer action, in order to accomplish eviction. The landlord must serve the defendant with a summons and complaint of the unlawful detainer action, and the defendant has the opportunity to respond. If the court issues a writ of restitution (order directing the sheriff to physically evict), the sheriff must serve a copy of the writ, informing the defendant that he or she can be physically removed from the premises after a certain date.

An unlawful detainer action commenced as a result of a trustee's sale under the Deed of Trust Act (DOTA) must also comply with notice provisions found in the DOTA.

Forcible and Unlawful Detainer.

A three-day notice to vacate is also the first step in a process aimed at evicting a person who, without the permission of the owner and without having color of title thereto, enters on land of another. Such a person may also be subject to prosecution for criminal trespass.

"Tenant by Sufferance".

Whenever a person obtains possession of premises without consent of the owner or another person having the right to give possession, the person is deemed a "tenant by sufferance." A tenant by sufferance is liable to pay reasonable rent for the actual time of occupancy and must, on demand, surrender possession. All right to possession terminates immediately upon demand. The chapter in which this statute is located is explicitly not applicable to any rental agreement included under the RLTA.

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Summary of Substitute Bill:

The owner of the premises, or his or her agent, may initiate the investigation and request the removal of unauthorized persons from the premises by providing to law enforcement a declaration, declaring under penalty of perjury that:

• the declarant is the owner of the premises or the owner's authorized agent;

• unauthorized persons have entered and are remaining unlawfully on the premises;

• the persons were not authorized to enter or remain;

• the persons are not a tenant or tenants and have not been a tenant or tenants for the last 12 months;

• the declarant has demanded that they vacate but they have not done so;

• the premises were not abandoned at the time the persons entered;

• the premises were not open to members of the public at the time the persons entered;

• the declarant understands that persons removed from the premises by law enforcement pursuant to the declaration may bring a cause of action against the declarant for any false statements, and that as a result of the court action, the declarant may be held liable for actual damages, costs, and reasonable attorneys' fees;

• the declarant acknowledges the prohibitions in the Residential Landlord-Tenant Act against taking or detaining an occupant's personal property or removing or excluding an occupant from a dwelling unit or rental premises without an authorizing court order; and

• the declarant agrees to indemnify and hold harmless law enforcement for its actions or omissions made in good faith pursuant to the declaration.

Upon receipt of such a declaration signed under penalty of perjury and containing all of the required information, a peace officer shall have the authority to remove the persons from the premises, with or without arresting them, and order them to remain off the premises or be subject to arrest for criminal trespass. Only with probable cause to believe that a person is guilty of Criminal Trespass in the first degree in a building considered residential real property, does a peace officer have the authority and discretion to make an arrest or exclude anyone under penalty of criminal trespass. While a peace officer can take into account the declaration, he or she must provide the occupant with a reasonable opportunity to secure and present any credible evidence showing that the person is a tenant, legal occupant, or the guest of a tenant or legal occupant, and the officer must consider such evidence. Neither the peace officer nor his or her law enforcement agency shall be held liable for actions or omissions made in good faith.

Persons removed from premises on the basis of false statements in a declaration shall have a cause of action to recover, from the declarant, the full amount of damages, together with costs and reasonable attorneys' fees. In addition, an owner who falsely swears on a declaration may be guilty of false swearing or making a false or misleading statement to a public servant, both of which are gross misdemeanors.

Substitute Bill Compared to Original Bill:

The following elements are added to the declaration:

• that the persons are not tenants and have not been for 12 months; and

• that the declarant acknowledges the prohibitions in the Residential Landlord-Tenant Act.

Provisions are also added that: (1) state that only with probable cause to believe that a person is guilty of Criminal Trespass in the first degree in a building considered residential real property, does a peace officer have the authority and discretion to make an arrest or exclude anyone under penalty of criminal trespass; (2) require the peace officer to provide the occupant with a reasonable opportunity to secure and present any credible evidence showing that he or she is a tenant, legal occupant, or guest of the same; and, (3) state that an owner who falsely swears may be guilty of false swearing or making a false or misleading statement, both of which are gross misdemeanors.

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Appropriation: None.

Fiscal Note: Not requested.

Effective Date of Substitute Bill: The bill takes effect 90 days after adjournment of the session in which the bill is passed.

Staff Summary of Public Testimony:

(In support) The landlord tenant laws are a great vehicle for removing persons who are or have been tenants but have failed to pay the rent or comply with the rules. This process takes time and money, however, and is not appropriate with respect to persons who are not supposed to be on the property and are causing damage. This bill would allow a property owner to have law enforcement remove these persons. Just last week, a property owner was told by a law enforcement officer that his only remedy was the landlord tenant law. While that process takes place, there can be thousands of dollars worth of damage done to the property. This bill has the support of all parts of the industry and is a bipartisan effort. There is some language that will be coming that was drafted and agreed to last year.

(Opposed) None.

(Other) There has been, and is still, a lot of hard work being put into this. It is acknowledged that there is a real problem with squatters, but there is no desire to impact the landlord tenant laws. It has been worthwhile to work together on this, and there is hope that the work will get done and all will be together at the Governor's signing of the bill. There is a difference between an unauthorized occupant and a squatter. An ill parent or child who comes to live with a tenant might be considered an unauthorized occupant. A squatter, on the other hand, commits criminal trespass. While there is a readiness and willingness to work on this, protections must be included for tenants. Currently, there are not probable cause protections included.

Persons Testifying: (In support) Representative Barkis, prime sponsor.

(Other) Michele Thomas, Washington Low Income Housing Alliance; Chet Baldwin, Washington Rental Owners Association; Michael Althauser, Columbia Legal Services; and Bill Hinkle, Rental Housing Association.

Persons Signed In To Testify But Not Testifying: None.