f. Judgment

If the judge or jury finds for the plaintiff-landlord, then a judgment may be entered for restitution of the premises, damages (including double damages in commercial cases), forfeiture of the lease or tenancy, and for the amount of any rent due. RCW 59.12.170. As with other civil judgments, a judgment for unlawful detainer becomes executable after the ten-day automatic stay provided for in the Washington State Superior Court Rules and subject to other various additional stay, reconsideration, and appeal rights. See CR 62(a). If the verdict is for the defendant-tenant, then the court may enter an order for dismissal and a judgment for any appropriate counterclaims (upon which defendant prevails).

Because the primary purpose of the unlawful detainer action is to resolve disputes concerning the legal possession of real property, only damages that are incidental to the right of possession are recoverable. Pine Corp. v. Richardson, 12 Wn. App. 459, 463-4, 530 P.2d 696 (1975). The UDA divides damages into two categories: (1) past-due rent and/or rental damages; and (2) statutory double damages (commercial only). RCW 59.12.170 (judgment shall be rendered “for twice the amount of damages thus assessed and other rent, if any, found due.”).

i. “Rental” Damages

In commercial cases, RCW 59.12 allows recovery of rental damages ((The commercial unlawful detainer statute does not contain a provision for an award of reasonable attorney fees to the prevailing party, but they may still be recoverable if included in the lease or there is an independent statutory basis. Wilkening v. Watkins Distributing, Inc., 55 Wn. App. 526, 531, 778 P.2d 545 (1989); RCW 4.84.250-.270.)). Past-due rent ((The Washington Supreme Court has held that past-due rent does not include sums for which the landlord accepted a promissory note. Walker v. Myers, 166 Wash. 392, 397, 7 P.2d 21 (1932).)) generally includes any rental amount in arrears up until the notice period expires; if the tenant holds the premises after the notice period, then that time must be collected as damages. Owens v. Layton, 133 Wash. 346, 347-8, 233 P. 645 (1925) (court held that rent is incident to tenancy, once tenancy expires the former tenant is trespassing, and damages for such holdover should be determined by fair market value); accord Lenci v. Owner, 30 Wn. App. 800, 803, 638 P.2d 598 (1981).

A variety of rent-related damages have been successfully recovered under RCW 59.12.170. See Agen v. Nelson, 51 Wash. 431, 433 98 P. 1115 (1909) (where covenant to pay taxes was breached, plaintiff successfully recovered taxes as damages); Munro v. Irwin, 163 Wash. 452, 457, 1 P.2d 329 (1931) (damages for removal of building could not be recovered in a subsequent action because the plaintiff failed to raise the issue in the unlawful detainer action, thereby waiving the claim).

ii. Double Damages

When a plaintiff-landlord prevails in a commercial unlawful detainer action, the landlord is entitled to judgment for double the amount of damages found due ((Attorney fees are not “rent” and therefore are not subject to doubling. Daniels v. Ward, 35 Wn. App. 697, 708, 669 P.2d 495 (1983). Formerly, the courts used to award double damages only if they were specifically requested in the complaint. Peterson v. Crockett, 158 Wash. 631, 641, 291 P. 791 (1930). However, concurrent with the development of the new rules of pleading in 1960 and in accordance with CR 54(c), the current approach is to allow recovery of double damages when appropriate, even if they were not specifically requested in the complaint. See Kelly v. Powell, 55 Wn. App. 143, 149, 776 P.2d 996 (1989) (relief granted by default is limited to the pleadings, but litigated cases are not limited and double damages are recoverable even though they were not specifically requested in the pleadings). The double damage provision is mandatory and cannot be applied at the discretion of the court. Armstrong v. Burkett, 104 Wash. 476, 479, 177 P. 333 (1918). Double damages are also applicable in any case for unlawful detainer, not only when the action is based on a default in rent. Hinckley v. Casey, 45 Wash. 430, 431, 88 P. 753 (1907) (“The plain reading of the statute is that the court or jury shall assess the damages, and find the amount of rent due if the action is prosecuted for the non-payment of rent, and that the court shall thereupon double the amount of the damages and rent.”).)). RCW 59.12.170. There is a split, however, in the appellate courts in regards to what parts of the recovery should be doubled.

The long-standing practice in Washington has been that the entire rent, both the portion in arrears and the portion accruing after the tenant is in the unlawful detainer, must be doubled. Decker v. Verloop, 73 Wash. 10, 13, 131 P. 190 (1913) (past rent doubled without comment); Sowers v. Lewis, 49 Wn.2d 891, 894, 307 P.2d 1064 (1957) (past rent doubled without comment); Daniels v. Ward, 35 Wn. App. 697, 708, 669 P.2d 495 (1983) (past rent doubled without comment). These cases, however, merely applied the doubling provision without analyzing the language of the statute.

Division One and Division Three of the Washington State Court of Appeals have both engaged this issue directly, but the two courts are split about how to apply the statute. Division Three decided this issue in Queen v. McClung, where the court held that RCW 59.12.170 “clearly requires the doubling of all unpaid rent, whether it accrues before or during the period the tenant is found to be in unlawful detainer.” 12 Wn. App. 245, 248, 529 P.2d 482 (1974). Division One explicitly declined to follow this holding in Sprincin King Street Partners v. Sound Conditioning Club, Inc., holding instead that “awarding double damages for rent accrued while the tenant lawfully possessed the property is unjust and also in conflict with the purpose of our unlawful detainer statute.” 84 Wn. App. 56, 59, 925 P.2d 217 (1996). Because of this split in authority, the practitioner should be careful to plead damages according to the jurisdiction in which the action is litigated.

iii. Liquidated Damages Provisions

The courts have not conclusively dealt with the question of whether double damages can be limited by a specific liquidated damages provision in a lease. An old decision held that a liquidated damages clause that related only to damages for breach would not limit the damages for unlawful detainer. O’Connell v. Arai, 63 Wash. 280, 284-5, 115 P. 95 (1911). The applicability of this decision to a case with a more specific liquidated damages clause, however, has not been determined. It is quite possible that a Washington court would limit double damages if a lease contained a clear liquidated damages provision. See Mon Wai v. Parks, 43 Wn.2d 562, 566, 262 P.2d 196 (1953) (a stipulated damages “agreement is valid, the theory being that the parties have agreed, or have stipulated, as to the amount of damage”). The prudent lease-drafting practitioner will want to make sure the lease states any liquidated late fees are in addition to all other remedies available at law and that imposition of such damages does not constitute an election of remedies on the part of the landlord or the exclusion of any other remedies.

g. Writ of Restitution and Physical Eviction

Upon order of the court, the superior court clerk will issue a writ restoring possession of the property to the landlord ((The clerk, however, will not prepare the writ, which is the task of the plaintiff’s attorney.)). RCW 59.12.090. The writ is returnable 20 days after issuance in commercial actions and 10 days after issuance in residential actions. RCW 59.12.090; RCW 59.18.380.

The writ is filed with the county sheriff’s office, which will require that a sheriff’s indemnity bond of at least $5,000 (commercial cases only) and additional processing fees be paid pursuant to RCW 36.28 and 36.18. The sheriff will then serve the writ on the tenant by posting it on the premises. RCW 59.12.100. In commercial cases, the sheriff must serve and return the writ within 20 days from the date of issuance, unless the court grants an extension. RCW 59.12.090. On “eviction day,” the sheriff will stay in attendance to keep the peace. The sheriff will not move anything. The landlord or the landlord’s agents must remove the tenant’s property to storage or the nearest public property ((Some counties may not allow the landlord to deposit the tenant’s property on the “nearest public property,” so storage becomes more of a necessity than an option.)).