Negotiations and Hearings from a Landlord’s

Perspective

Lauren Novack Puckett & Redford, PLLC

Lauren Novack practices with the Seattle law firm of Puckett and Redford, PLLC., representing residential and commercial landlords. Lauren got her start in landlord-tenant law by volunteering for the King County Bar Association’s Housing Justice Project. Prior to that, she practiced primarily in the area of municipal law, representing water and sewer districts. Lauren obtained her B.S. undergraduate degree from the University of Washington and her J.D. law degree from Seattle University.

3/3/2014

1

HJP Training Seminar:“Negotiations and Hearings From the

Landlord’s Perspective”

Lauren Novack

Puckett & Redford P.L.L.C.901 5th Avenue Suite 800

Seattle, WA 98164206-386-4800

puckettredford.com

Benefits to the Landlord of Negotiating With Tenant Advocates

� Cost effective

� Raises level of professionalism

� Diffuses anger

� Promotes fundamental fairness

3/3/2014

2

Tips For Successful Negotiation

� Early intervention

� Know Your Opponent

� Know the type of tenancy your client has

� Watch the clock

� Move out stipulation

Negotiation

3/3/2014

3

� “Pay & Stay” stipulation

� Ability to pay

� Third party pledges

� Forwarding address and keys

Negotiation

� Post move out payment plan

� Personal property disposal

� Agreed Orders

� Signing

Negotiation

3/3/2014

4

� Best offense

� Know your Rules of Professional Conduct:RPC 3.2 expediting litigation

RPC 3.4 fairness to opposing party and counsel

RPC 4.2 communication with persons represented by counsel

Negotiation

Thoughts for

Productive Hearings

3/3/2014

5

� Document copies

� Rent placed in registry

� Unobvious Disability

Hearings

Questions?

3/3/2014

6

PUCKETT & REDFORD901 5th Avenue, Suite 800

Seattle, WA 98164

PHONE: 206-386-4800

FAX: 206-233-8166

www.puckettredford.com

1

Lauren Novack PUCKETT & REDFORD 901 5th Avenue, Suite 800 Seattle, WA 98164 PHONE: 206-386-4800 FAX: 206-233-8166 www.puckettredford.com

Speaker's Notes

HJP Training Seminar: “Negotiations and Hearings from the Landlord’s Perspective” Benefits to the Landlord of Negotiating with Tenant Advocates

It’s cost effective for the landlord to obtain a negotiated settlement in the form of either an Agreed Order at the unlawful detainer (“UD”) hearing, or a stipulation prior to, or at the hearing for several reasons: 1. If a tenant feels invested in the legal process and has some control of the outcome, there is

less likelihood that he will damage the unit in retaliation and a higher likelihood that he will enter into a repayment plan with the landlord.

2. Agreements allow for certainty for both sides. Tenants know exactly what is expected of them, and if an Agreed Order is entered into they have a date certain in which they have to move. Landlords know that a tenant may not successfully move to revise, or appeal an Agreed Order, or stipulation that has been negotiated through counsel.

It raises the level of professionalism for both sides to have counsel. Without tenant advocates,

landlord counsel are not held to a high standard of professionalism.

Diffuses any possible anger that the tenant may have towards the landlord and the likelihood of violence against the landlord.

Encourages fundamental fairness and levels the playing field.

Tips for Successful Negotiation

Early Intervention

It is easier to settle a case earlier in the UD action when fees and costs are lower and managers are less frustrated with the length of the process. Most UD summons and complaints are served prior to filing, so early intervention may avoid the tenant’s credit being affected by a UD filing. In our office, once we receive an answer from a tenant, or tenant’s counsel, upon review of the answer with our client, we will immediately file the case and set a show cause hearing date. To

2

avoid this when contacting us, send us a fax, or letter with the subject line “Communication for Settlement Purposes Only-Not to Be Considered an Answer”. Due to tenant privacy rights, we will not be able to negotiate with you without a written release from the tenant, or a notice of appearance. In addition, our office does not contact tenants directly, so do not ask us to make direct contact in your settlement offer.

Know Your Opponent

Are you dealing with a non-profit or a for-profit landlord? For-profit management companies have a financial fiduciary duty to their clients, so they are less able to negotiate a “pay and stay” option if the tenant has no access to immediate funds. Proposing an agreement for the tenant to pay and stay if the tenant has no money to offer at the hearing will frustrate the manager and delay meaningful negotiation. The typical for-profit manager will have authority to settle in a nonpayment UD case only if the tenant does not have behavioral issues and current rent is offered along with a payment plan for arrearages and attorney fees and costs not to exceed three months. Some for-profit managers will simply not enter into Agreed Orders, or stipulations, as it is against their company policy.

Most non-profit landlords’ missions are to house low income tenants, so if the case is purely about money and not behavioral issues, the manager will have more leeway to negotiate a pay and stay agreement.

Know the Type of Tenancy Your Client Has Know the type of tenancy your client has and the legal requirements under that type of tenancy. Is the tenant a public housing tenant, a project based Section 8 tenant, a tenant with a section 8 voucher, a tax credit tenant, or a conventional tenant? Don’t delay the negotiation by raising defenses that don’t apply to your client’s type of tenancy. For example, is there a right to a grievance hearing? If not, don’t raise that as a defense or a negotiation strategy.

Watch the Clock

Many potentially successful negotiations end in hearings, because the parties simply run out of time. The odds of ending up with a successful agreement lessen as the end of the morning UD calendar approaches. There is no way for an HJP attorney to know everything about a case in the short time they have to review the case, so focus in early on the most important issues and do not focus on issues not central to your case. For example, if the case is about non-payment of rent and a 3 day notice has been issued; do not ask for police reports, or third party tenant complaints in the file.

“Move Out” Stipulation

Offer to create a stipulation to move out before the date the hearing has been set. This will increase the likelihood that the landlord will accept your client’s offer of a stipulation without

3

requiring money up front. The longer the tenants want before move out, the less likely the landlord is to agree unless there is some payment. If the tenant is offering to pay to gain a later move out date, give specific amounts and dates up front.

“Pay & Stay” Stipulation

Explain to your client that a stipulation to “pay & stay” must include all costs, even if they have not been pled in the complaint. This will possibly include, rent, late fees, notice fees, pet fees, utilities, damages to the unit, e.g. Our office policy is to find out from our clients, prior to the hearing, if they are willing to offer a pay and stay agreement, or if they are only looking for a move out date. If we tell you that they are not willing to do a pay and stay, don’t ask for one or propose a payment plan without a move out date.

Ability to Pay

The tenant needs to be realistic about their future ability to pay. It is often better for the tenant to keep any money they may have to move-out and enter into an Agreed Order for a judgment and move out date.

Third Party Pledges

If your client believes he/she may be able to obtain a pledge from a third party person, or agency, explain to the tenant that even if the landlord agrees to accept a third party payment, it will want language that states that it is the tenant’s obligation to tender actual payment. That is, if the agency or person doesn’t come through with the money it has pledged, no matter the reason, the tenant is still obligated to make the payment. In addition, many agencies will want a landlord to agree to refrain from pursuing eviction if it accepts the agency’s money. Most landlords will not want to agree to this, so it is an issue to be resolved.

Forwarding Address and Keys

If the tenant will move, they should provide a forwarding address to receive their RCW 59.19.280 statement for the basis of retention of deposit. Make sure they know to turn in keys when they move out, to avoid confusion as to the actual date of move out.

Post Move-Out Payment Plan

Landlord may be willing to work out a payment plan after move-out, but many large property management companies have policies that delinquent accounts are sent immediately to collections after move-out.

Personal Property Disposal

The landlord is more likely to agree to a stipulation if the tenant agrees items of personal property may be disposed of at move-out.

4

Agreed Orders

The King County sheriff will not enforce a writ older than 30 days, so we will instruct landlords not to agree to that long for a move out date, or agree on a day prior to the agreed move out for the writ to issue. But see St. Ex. Rel Barnes v. Superior Court 96 Wash.581 (1917).

Signing

Our office requires that defendants and opposing counsel sign off on all Agreed Orders, and stipulations.

Best Offense

The best offense is a good defense; show us our case’s weakness.

Know your Rules of Professional Conduct: RPC 3.2 Expediting Litigation RPC 3.4 Fairness to Opposing Party and Counsel RPC 4.2 Communication with Persons Represented by Counsel

Thoughts for Productive Hearings

Document Copies

Provide copies of all documents to be used as exhibits at hearings to opposing counsel before the hearing.

Rent Placed in Registry

Explain to the tenant in advance of the hearing that the landlord will ask for all rent to be put in the registry of court if case gets set for trial.

Unobvious Disability

If the tenant has an unobvious disability, and wants to make a reasonable accommodation request (RAR) at the hearing, have them supply a doctor’s letter prior to the hearing. Explain to the tenant that if they make a RAR, it opens up the landlord’s ability to bring in evidence showing why the RAR is unreasonable. This evidence could include behavior that the tenant would be uncomfortable having become part of an open public record.