All Forum Posts by: Davido Davido

What kind of rental agreement could you possibly have to rent a property without the owner’s permission? Isn't that fraudulent or deceptive? There are other questions too, but let’s first eliminate the present question of whether there is fraud toward tenant or owner when abandoned real estate is rented without the owner’s consent.

Higher Scrutiny Requires Scrupulous Honesty

My rentals must be honest and accurate. Any person who is renting abandoned real estate is likely to eventually be questioned by authorities (especially after publishing a blog). A squatter’s use of real property that is titled to another person is an activity which will receive a high level of scrutiny from authorities. There must be no fraud. There can be no deception.

Why Would You Lie? The owner doesn't have any interest.

As a matter of law in WA, there can be no obligation to an owner who has 'abandoned' his property. "Abandoned" as used in this post, and as defined by our courts, means the owner has given up ALL his/her interest in the property. Therefore, the person who enters, occupies, or rents out an Abandoned Property, has no duty to the owner of record who the courts recognize as having no interest in the property that he or she has abandoned. Since, the next occupant of an abandoned property has no duty to the owner of record, the occupant has no contract with that owner either express or implied. Without a contract there is no fraud. With no duty to the owner of record, there is no deception. For the controlling statute and legal principles governing abandoned real estate, see my last blog post, “There’s No Trespass @ Abandoned Property” https://www.biggerpockets.com/member-blogs/12388/86745-there-s-no-trespass-at-abandoned-property

Second, in my rental agreements there is no false or deceptive statement made to tenants. Each agreement specifies the property owner’s full name along with the Deed Type, the Recording #, and the date of the Deed that gives the owner title. The rental agreement states that the owner is currently absent and out of contact, -but in the event the owner shows up, he/she may cancel the rental agreement within 30 days.[1] I do only month to month rentals. Each rental agreement also specifies that I have obtained beneficial interest
(non-title) in, and possessory rights to use, the property under RCW 9A.52.090 (1). Which is the WA exception to criminal trespass when property is abandoned. That statement is accurate. I have no title interest, but have possession and all the properties discussed here are abandoned. There is no reason to make false statements in the rental agreement.

Are They Saying it's Unfamiliar? or Unfair?

Attorney Annie Fitzsimmons identified another potential area of concern in her opinion discussed in my last post and linked above. Under the Consumer Protection Act, the State can sue any person doing business, (The US and every State have adopted similar Consumer Protection Laws). Washington's CPA states, “…[U]nfair… acts … in the conduct of … commerce are hereby declared unlawful.” https://app.leg.wa.gov/RCW/default.aspx?cite=19.86.020

The Consumer Protection Statute is exceptionally broad.  The term “unfair”, has been used by the State of Washington pretty much the same way my children have used the term.  If a something is unusual and they don’t like it, they call it unfair. The conduct reported in this thread, of taking over real estate that has been abandoned by the owner, is certainly unusual. It is also possible that local authorities won’t like it. That doesn't make what I do unfair.  I'm therefore comfortable defending my actions.

Here is the rental agreement that I use. Decide for yourself whether it is unfair, deceptive, or fraudulent. Only the first part of my typical rental agreement is relevant to this discussion, but it is included entirely. There is nothing to hide.

_________________________________________

Month to Month Agreement for Rental of Real Property:

One Two Three Any Street Thurston Co WA

This real property rental agreement is between Mr. Davido, the Landlord, and Good Person, the Tenant. By this agreement Landlord, Davido, agrees to rent to Tenant, Good Person, the property located at One Two Three Any Street, Thurston County WA

• Owner: The owner of this property is, Owner Gone, as is established in a Statutory Warranty Deed recorded in assessor’s file #XXXX on Day Certain/Month Certain/Year Certain. During the term of this agreement, Mr/Ms. Owner Gone, will not reside at the property. Owner Gone, has been absent from the property for an extended period of time. Mr./Ms. Owner Gone, is not currently contactable through his/her; address, phone and email contacts of record. It is not presently known when Owner Gone intends to resume his/her use of the property. The parties to this agreement understand that this agreement will terminate within 30 days in the event that Owner Gone decides to cancel this agreement.

• Landlord: Mr. Davido (a man with only one legal name) shall be the landlord until Owner Gone returns, or for the duration of this agreement. Mr. Davido has obtained beneficial interest in and possessory rights to use this property under RCW 9A.52.090 (1). References to “Landlord” as used in this agreement, shall mean Mr. Davido. (WA Driver’s License #) [photocopy provided].

• Renter: Mr/Ms. Good Person, is an adult person. References to “Renter” in this agreement shall mean Mr/Ms. ABC Person. (State ID #) [photocopy required].

• Term of Agreement: This agreement will begin on Day Certain/Month Certain/Year Certain and continue from month to month until terminated by either party. It is the present intent of both parties that this agreement will continue for six months or more. The parties therefore mutually agree to pay an early termination fee of $50 per month or part thereof, if either party decides to terminate this agreement prior to six calendar months from the start date, except that neither party shall pay an early termination fee when there has been a violation of this agreement by the other party. At the end of this agreement, Renter agrees to peacefully surrender and return to owner the property rented in as good, clean and orderly a condition as when renter took possession, less normal usage, wear and tear.

• Rent and Due Date: The rent shall be $300, plus utilities, paid monthly. Renter’s property rent and utilities will be paid in advance on or before the 1st business day of each month, unless the parties agree in writing to a different due date. If this agreement starts on a date other than the 1st day of the month, then renter’s next rent payment shall be due one calendar month after her move in date and her second rent payment shall be prorated (reduced) to the first day of the next month. Rent thereafter becomes due on the first business day of every month until this agreement is terminated by one of the parties. All rents, utilities and other costs are prorated on a 30 day per month basis.

• Description of the Property Rented – The property rented is a lot, commonly known as 123 Any Street, located in Thurston County, WA. and generally described as a (Stated Shape) which is and approximately (XX) Feet Wide by (XX) Feet Long. The property rented shall be renter’s domain for his/her exclusive use, enjoyment, and/or for the storage of, maintenance of, and/or parking of a maximum of one (1) personal vehicle per renter and a maximum of one (1) recreational vehicle on the property. The space rented may be planted, decorated, improved, or fenced by renter at renter’s own expense -except that no trees or shrubs taller than six (6’) feet may be removed without Landlord's written permission.

• Security Deposit: A refundable Security Deposit of $300 will be held until the end of this agreement. The security deposit is held to cover failures to pay rent and to cover the costs of removal of tenant’s property or garbage, and to cover damage caused by renter through negligence, recklessness or intent. Renter’s security deposit shall be returned within 21 days after this rental agreement is terminated, less any past due rents, and less the costs of removing renter’s property or garbage, and less the costs of repairing any property damaged by renter. Renter’s security deposit may only be used as payment for rent or other charges due, in the event this rental agreement is terminated. Landlord’s recovery of damages, if any, is not limited to the amount of the security deposit.

• Move in Costs: $650 is due at time of move in ($300 rent + $50 utilities + $300 security deposit).

• Utilities to be Paid Monthly: Renter agrees to prepay utilities monthly on the first business day of each month, along with her rent. Renter’s move in utility payment will be $50. Thereafter, renter’s utilities will be the actual cost of electricity used by renter during the previous month together the remaining property utility costs (garbage collection, water service, and septic service). The utilities on this property, electricity, garbage collection, water, and septic are paid by the user(s). In addition to paying for his/her own electrical use, the utility costs paid by renter shall include the other utility services provided on the property -which is currently the following amounts; garbage collection ($XX.xx), water ($XX.xx), and septic services ($X.xx).

• Payment Methods: Renter agrees to pay Landlord via the online payment service (Landlord’s Choice). Payments of rent and any other amounts due under this agreement must be received by owner’s Landlord’s Choice Account on or before the date due. (Landlord’s Choice) accounts are free and can be opened instantly online through an internet web browser or with a phone app. In order to fund a Landlord’s Choice account, new users typically connect their Landlord’s Choice account to their local bank, and that requires two to three days for account verification. To pay your rent with (Landlord’s Choice), create and/or login to your (Landlord’s Choice) account online or via smartphone by going to www.Landlord’sChoice.com . On the mobile app click on the 'Send" button in the task bar at the bottom of the page and enter Landlord’s mobile phone # xxx or email Davido at email address.

• Initial Payment Received: Landlord acknowledges receiving payment of $___________ in total rent and deposit(s) on the (Date Certain) of (Month Certain) (Year Certain). Of that amount, $300 is the first month property rent, $300.00 constitutes renter’s combined security/damage deposit, and $50 is Renter’s first month of prepaid utilities.

• No Habitability in Existing Structures: Landlord and Renter mutually agree that existing structures, if any, on this property are NOT HABITABLE. This rental agreement is for Renter’s use and enjoyment of the lot only, and for the parking of one personal vehicle per renter and for the parking of a maximum of one Recreational Vehicle on the property, and for storage of renter's personal property to the extent renter’s property can be fully enclosed within a structure. Renter agrees that, prior to occupying any structure on this property (whether the structure is currently existing or created during the term of this agreement), renter will be responsible to bring the structure into compliance with local building codes.

• Rent May be Reduced when Renter Buys Materials for Agreed Improvements: Renter(s) are encouraged to improve the property by their own labor. Improvements to the property made by the Renter(s), if done with prior written agreement of the Landlord, shall be supported by Landlord. Renter(s) may use (XX%) of future monthly rent to pay for the materials required to construct any mutually agreed upon improvements, provided that renter provides a copy (via text or email), of Renter’s purchase receipt, on the day of purchase, for all materials purchased for improvements. Unless otherwise agreed to in writing, the amount of rent reducible by renter when purchasing materials for property improvements shall be limited to (XX%) of the renter’s monthly rent. The cost of materials purchased for property or yard improvements that exceed (XX%) of renter’s monthly rent shall carry over, and may be used to reduce the cost of rent in any future month -subject to the maximum limit of (XX%) of the monthly rent due. Owner will maintain a spreadsheet of renter’s materials purchased and rent reductions applied and provide renters with an updated copy of the spreadsheet on or about the 1st day of each month.

• Condition of the Rented Property: Renter agrees to return the property to Landlord in substantially the same condition as it is now. Renter acknowledges that on the date this agreement is signed;
• The lot being rented is cleared of brush and all tree limbs are pruned above head height, -except limbs on trees along the property line.
• The lot is covered in grass. There are no bare spots other than for structures, driveway and sidewalk.
• The grass is uniformly mowed to less than 3” height.
• The structures (describe each) are externally sound with no holes in walls or foundation and no windows broken or unsecured doors.
• The lot is free of garbage, trash, debris.
• There is no personal property on the lot belonging to landlord or anyone else.
• There are no automotive vehicles of any kind on the property.

• Power and Water Available: Currently a 3/4” fresh well water spigot for washing vehicles, renter(s) RV, and other personal property. In addition, landlord has provided a (XX) Amp (XXX) Volt electrical power outlet for ter freeze protection, at the site -along with a 4” septic drain port within (XX’) of the power outlet. (XXX) Amp, 240-volt power is available at (location of Subpanel).

• Landlord May Maintain a Real Estate Sign: Renter and landlord mutually agree that Landlord may maintain, and renter shall not remove or obscure from view, a code compliant sign, visible from the public street, at the (XX) corner of the lot. The purpose of this sign shall be to advertise to the Absent Owner and to the public, Landlord’s ongoing beneficial use of the property. The sign shall be no larger than 2’H x 3’W and shall be installed and maintained by the landlord.

• Ending the Rental Agreement. This agreement may be terminated by either party with written notice given twenty days or more preceding the end of any of the period of tenancy as required by Washington law. See RCW 59.18.200. http://apps.leg.wa.gov/rcw/default.aspx?cite=59.18.200 A party who fails to give the notice of their intent to terminate this agreement at least 20 days before rent is next due, may terminate this agreement by providing thirty days’ notice.

• Written Notice: Any notice required by this agreement may be made by U.S. Mail, hand delivered letter, text notice or email notice, each of which shall constitute written notice by either party regarding any portion of this agreement, provided that a return text, email, or other written acknowledgement must be made which expressly acknowledges receipt of the other party’s notice.

Landlord’s Cell phone # for texting or calling Landlord is: XXX

Landlord’s email address is: Davido at email address - for emailing owner.

Landlord’s mailing address shall be: Mr Davido, (landlord’s address of record)

Renter’s Cell phone # for texting or calling renter is; XXX

Renter’s email address is; XXXxxx at email address.

Renter’s mailing address shall be: Good Person at; One Two Three Any Street; Thurston County WA 

Rights of the Renter: Renter shall have private use and enjoyment of the lot rented provided that the only person(s) entitled to use of the rented space is Good Person and his/her occasional guest or guests.

Renter’s Guests: Guests of the renter are welcome on the property. Renters are encouraged to invite guests under the following conditions:

Overnight guests -Renter may have occasional adult guest(s) stay overnight at the property. For the purposes of this agreement the phrase, “Occasional adult guests” shall mean a maximum of four overnight guest stays per month, and adult shall mean a person of at least 18 years of age. Generally, no minors are permitted to stay overnight. Overnight guest who are minors and overnight guest visits of more than 4 nights per month, shall be permitted only if renter receives prior written permission from the owner. Use of the space rented by any person other than renter for more than 7 days per month, unless preapproved by owner, shall constitute a breach of this agreement and may result in either; termination of this agreement, or a $100 per month increase in the amount of the rent -at the owner discretion.

Number of guests must be limited. Renter shall not invite nor permit more than 4 guests on the property at a time, unless renter receives prior written permission from owner, via text, email or letter.

Renter must be present on the property while his/her guests are there. This property is primarily for the use and enjoyment of the person(s) renting the property. Unless the renter has invited his or her guest(s) to stay overnight, renter shall always be present while his/her guests are on the property. If renter leaves the property or if renter is not present when guests arrive, his/her guests must leave the property. During overnight visits, renter and his/her guests must observe must limit their noise levels so as not to disturb neighbors.

Guest Parking -Renter’s guests may park an additional vehicle(s) during guest visits within the lot rented, or, where not prohibited by law, on the public road adjacent to the property.

Pet(s): Pets are accepted and welcome with the exception that aggressive animals may not be brought onto the property. A negotiable pet fee is charged based on the animal’s size ($50 Cats, $100 Dogs) and a modest monthly pet rent must be paid ($5 Cats, $20 for Dogs) by the owners of pets that are regularly in the house. Renter agrees to be solely responsible to remove pet wastes from the property daily. Damage done by renter’s pet may result in not getting the pet damage deposit or security deposit back.

Livestock and Wildlife: Written approval from the landlord (letter, text or email) must be received by renter before renter maintains livestock or wildlife animals on the property. When appropriate housing and fencing is available, small farm animals shall be encouraged and supported on this property. Renter is encouraged to create gardens and raise small animals, conditioned upon such use of the property being compliant with current zoning, and provided also that all animals shall be cared for, fed, watered, and housed by and at the expense of the renter(s). Any non-caged animals must be fenced by the renter(s) and must be paddock shifted (rotationally grazed) according to a prewritten plan presented to and agreed to, by landlord. The parties mutually agree that industrial pesticides will not be used on the property, and that the animals and gardens of neighbors will be respected. Renter’s animals and pets, if any, must remain under renter’s control.

Parking of Vehicles: Residents agree to park a maximum of 1 personal motor vehicle on the property and one recreational vehicle, unless prior written permission is received from the owner.

i. Park on driveways or in designated parking; The vehicles of renter(s) and their guests, must be parked on the driveway, in designated parking areas, or within the portion of the public street that is adjacent to this property. Renter agrees not to park his/her vehicles or to permit his/her guests to park their vehicles on the street adjacent to the property of any neighbor.

ii. Keep parking area clean; Residents must keep vehicle parking areas free and clean of garbage, personal items, and any vehicle parts or fluids, such as oils, coolants, spare tires, batteries, etc.

iii. Trucks and boats shall not be parked or stored on the premises without the prior written consent of the Owner (except for pick-ups and passenger size vans).

iv. Motorhome, recreational vehicle or trailers of any type may not be parked overnight on the premises without written consent of the Landlord. The landlord agrees to permit a maximum of one (1) currently licensed Recreational Vehicle on the property.

v. Inoperable Vehicles, Vehicles without License Plates, with Expired Plates, or Uninsured Vehicles must be removed; All vehicles parked on this property are required to have a valid license plate (no temporary tags longer than 30 days), and insurance. Uninsured or unlicensed vehicles must be removed from the property within 72 hours at landlord’s request. Disabled vehicles shall not be left on the premises for longer than 1 week. Disabled vehicles which are not in an enclosed garage will, after having one written 72-hour warning placed on the vehicle, be towed form the premises at the vehicle owner’s expense.

vi. Repair of vehicles on the premises. Residents are generally permitted to repair and maintain their own vehicles or the vehicles of other residents, on the premises. Vehicle repairs on this property shall be limited to noncommercial repairs of resident’s own vehicles and to repairs that can generally be completed in a single day, -unless the tenant receives prior written permission from the landlord.

1. County Code on RV Occupancy: Both parties to this agreement hereby acknowledge that the Thurston County municipal code at Chapter 20.34.020(8)(a) and(c) limits occupancy of Recreational Vehicles in part as follows:

“Temporary occupancy is permitted but shall not exceed thirty days in any six-month period. Two thirty-day temporary occupancies within any twelve-month period must be separated by a minimum of at least forty-five days.”

And "Such equipment shall not be hooked up to utilities, sewage or septic, or water facilities unless located in a recreational vehicle park.” (This property is not a licensed recreational vehicle park.)

Note however, that under the Thurston code an electrical connection can be made to prevent freezing, etc. when the recreational vehicle is being stored."

1. County Code on Camping: Renter and Landlord both acknowledge that Thurston County Code (TCC) permits persons to live only in structures approved for permanent occupation. People sleeping in tents, vans, and tiny houses on wheels, are classified as accessory recreational vehicles in the zoning code and are subject to the requirements noted in paragraph 20. E. above.

1. Code Enforcement: Landlord and renter hereby mutually agree to neither encourage nor interfere with enforcement by Thurston County, if any, of the county codes regarding Recreational Vehicle occupancy or residential camping.

• Duties of Renter: It is the duty of renter to treat all persons respectfully and civilly, to timely pay the rent, and to maintain usability of the property.

1. Respect and Civility: Respectful, calm, polite and civil interactions are required. Shouting at other residents, guests or neighbor’s is not permitted. Failure to act respectfully toward another tenant, guest, or neighbor, shall be considered a breach of this contract and may result in termination of the renter’s tenancy. Initiating a physical assault of another person on this property will terminate the tenancy of the aggressive party, except in cases of self-defense.

1. Timely Payment, -Late Fees: Time is of the essence in this rental agreement and timely payment of rent is required. If rent or other charges are not received by owner on the due date, a late fee of $10 shall be assessed for each day the rent is late. Late fees are in addition to the rent. Late rent may result in a notice of eviction.
   1. Cleanliness and Orderliness: It is the duty of renter to keep the yard mowed and vegetation trimmed and to maintain general property cleanliness and orderliness. Landlord agrees to provide renter a well cleaned space at move in. Items which create odors or attract pests, -such as garbage, decaying food scraps or spoiled personal items must be placed in a fully enclosed trash receptacle. No trash or household garbage can be left outside of a fully enclosed garbage can, as trash left outside of a can and will attract rodents, insects, and predators.
2. Areas Open to Public View: Renter agrees to keep the property orderly and uncluttered with personal property. Renter agrees to that his/her items of personal property shall be limited to property that can be fully enclosed and secured. in those areas of the lot which are open to public view.
3. RV Space Cleanliness: Renter agrees to keep the exterior of any Recreational Vehicle brought onto the property maintained, orderly and sanitary.
4. Personal Storage Outside the Space Rented: Renter’s personal property shall be limited to property than is fully enclosed within a structure. Upon request, the owner will work with renter to provide an accessible location for additional enclosed storage space. Renter agrees to comply with TCC 20.34.020(9)(a) which requires that; “Outside storage shall be maintained in an orderly manner and shall create no fire, safety, health or sanitary hazard. “

1. Maintenance and Repairs: Landlord will be responsible for utility repairs on or about the property unless caused by the negligence of the Renter. Renter will be responsible for mowing, trimming vegetative growth and for the cleanliness and orderliness of the lot. Renter is responsible for any repairs caused by renter’s negligence.
2. It is the responsibility of renter to promptly notify the Landlord, Davido (XXX) XXX XXXX, Davido at email address, of any emergency on the property or of any need for repair of which the renter becomes aware.
3. The renter agrees to keep the property rented clean, orderly, and sanitary at all times and to promptly place all trash, garbage and other waste in the appropriate receptacles. Food waste and garbage cannot be left outside of covered garbage cans.
4. The renter is responsible for removing snow and ice from the stairs and walkways on and around the property rented.

1. Permit Landlord Right of Entry: Landlord retains the right, with 48 hours written notice, to enter renter’s lot during reasonable hours as necessary to make repairs and improvements.
   1. Emergency Access: In the event of an emergency, owner may enter renter’s lot, and/or RV without notice to render aid or to prevent property damage. If it appears to a reasonable person from circumstances then present that life is at risk or that serious property damage would occur unless entry is made to conduct corrective action, then landlord shall not be responsible for any damages that may occur from forcible entry during an emergency.

• General Rules and Regulations:
• Renter agrees to abide by all Federal and State laws.
• Renter will be responsible for any fine and/or violation that is imposed on the owner or landlord due to renter’s negligence.
• Hazardous materials are not permitted in or around the space rented. Renter may not store fuel on the property without notifying the Landlord, except for propane in legally approved containers.
• Renter may not hang or place any signs on or about the property without Landlord’s approval.
• Renter shall immediately notify Landlord of any pest or predator problems.

• Legal Clauses:
• Assignment or Sublease: Renter agrees not to transfer, assign or sublease the space rented without Landlord’s written permission.
• Misrepresentation: If any information provided by renter in application for the space rented is found to be knowingly incorrect, untruthful, and/or misleading, that misrepresentation becomes a breach of this rental agreement.
• Entire Agreement: This agreement and any attached Addenda represent all terms and agreements between renter and owner regarding the space rented. Renter acknowledges that Landlord has not made promises or commitments regarding the space rented other than those expressly written herein.
• Time is of the Essence: Time is of the essence regarding all clauses and both parties in this rental agreement.

1. Remedies: Violation of any part of this agreement by either party, including non-payment of rent or utilities constitutes a default of this rental agreement. In the event of a default, either party may initiate legal proceedings in accordance with local law. In any litigation of this agreement, the prevailing party shall be entitled to an award of attorney’s fees. If renter defaults, Landlord may seek to evict renter from the property, and may also seek judgment against renter for any monies owed because of renter’s default.

1. Failure to Enforce: If the Landlord fails to enforce any provision of this rental agreement, it will not constitute a waiver of any default, future default, or default of the remaining provisions.
2. Agreement to Terms: By signing this rental agreement, the renter certifies that he/she has read, understood, and agrees to comply with all the terms and conditions of this agreement including any addenda.
3. Failure to Comply: Failure by either party to comply with the terms of this agreement can result in termination of the agreement and/or termination of tenancy.
4. Attorney Review: This is an important legal agreement. You are advised and encouraged to have your attorney review this rental agreement before signing it.

Renter

Signature___Good Person__________________ Date ____________________

Landlord

Signature______Mr Davido__________________ Date ____________________

_________________________________________________

So there you have it You decide. Is that Rental Agreement false? or Is it Unfair?

I'd like to hear your thoughts,

Davido, Author of-

Can this be Legal? The Blog of Abandoned Real Estate and Adverse Possession
https://www.biggerpockets.com/member-blogs/12388-abandoned-property-adventure-on-wildside

A respected real estate Attorney declared that my real estate activity constitutes trespass, theft and fraud. (See the post of Naomi Pinger on page 3 of this thread)  However, the Attorney is wrong on the law.  There are Two Sides to Every Story.

I, Davido, disagree. Here is my response.

_________________________________________________

Annie T. Fitzsimmons Davido Davido

Washington State Bar Association Thurston County Real Estate Investor

Real Property Probate and Trust Section Davido@XXXXXXXX

Address of Attorney Fitzsimmons

Comment on Your Opinion Letter of July 12, 2016 Regarding ‘Investor’ Who Takes Possession of and Then Rents Abandoned Real Estate

To: Attorney Annie T. Fitzsimmons,

It appears that in July of 2016 you provided a general educational opinion letter answering a question about the legal propriety of a person (investor) taking possession of abandoned real estate and subsequently renting the property to another person (tenant). The question came to you via the Washington Realtors Legal Hotline https://www.warealtor.org/membership-welcome/welcome-to-the-legal-hotline from Ms. Naomi Pinger, currently a Real Estate Agent/Broker with Better Properties of Olympia WA. https://www.betterpropertiesolympia.com/ . License # XXXXXXXXX

Accurate as to other situations, Not accurate here.

A copy of Ms. Pinger’s question and your opinion letter (as posted online) is included. My name is Davido, I am a Thurston County resident who is engaged in the conduct described (possessing and renting abandoned real estate). I write here to inform you that your response may be accurate as to the facts that you intended it to apply to, however, it was clearly erroneous on the facts related in Ms. Pinger’s question and as to my own conduct. Your response appears to give no consideration to the legal effect of owner abandonment. The question that Ms. Pinger put to you specified the properties were “abandoned” (as opposed to merely being vacant). And the question further specified that there was no breaking and entering.

Let me be clear. Your response to Ms. Naomi Pinger would be accurate as to that great majority of instances in which a non-owner enters a vacant home without the owner’s permission and subsequently rents that property to another person. The advice you gave is erroneous only when applied to those rare and highly unlikely[1] instances that I work -where the real estate is abandoned as a matter of law. Please note that the statutes, definitions and legal principles relevant to abandoned real estate and adverse possession can be counter-intuitive to persons who are not immersed in those subjects. Since you have no reason to be immersed in questions of abandoned real estate, it is not surprising that your advisory opinion to Ms. Pinger included these incorrect statements.

No. The "investor's" actions are not legal…. (H)e is trespassing. … He has no right to profit from his unauthorized use of another's property (trespass). … The only person with authority to sell the right of possession is the owner of the property, Thus, he is stealing from the property owner.

_________________________________________

[1] Abandoned real estate is rare. In my county (Thurston) approximately one out every 40,000 tax parcels are intentionally abandoned by the owner each year. Most of those are small vacant land parcels of little value. Approximately one out of every 160,000 parcels -one per year) is a valuable abandoned lot with utilities available, but generally also with debts and associated problems exceeding the property value. Only about one out every 500,000 tax parcels is an improved property (occurring once every 3 years). Only once, in my experience, have I found a code compliant home that was intentionally abandoned by its owner. In that case, the unpaid mortgages and liens against the property were 3 times greater than the assessed tax value. Valuable improved abandoned real estate is exceptionally rare.

There can be no Trespass when an owner abandons their property.

There can be no trespass when real property is abandoned. This is a legal principle recognized by most courts. WA courts define “Abandoned” as does Black’s Law Dictionary,

“Abandoned property in a legal sense is that to which owner has relinquished all right, title, claim, and possession, with intention of not reclaiming it or resuming its ownership, possession or enjoyment. Jackson v. Steinberg, 186 Or. 129, 200 P.2d 376, 377, 378.

There must be concurrence of act and intent, that is, the act of leaving the premises or property vacant, so that it may be appropriated by the next comer, and the intention of not returning. Relinquishment of all title, possession, or claim; a virtual intentional throwing away of property. Ex parte Szczygiel, Sup., 51 N.Y.S.2d 699, 702 (Sup Ct 1944).” Black’s Law Dictionary

A person who abandons real property, whether their abandonment is express or implicit, cannot later claim they were trespassed against. It is true that an owner’s intentional abandonment of real property does nothing to change their title right of ownership (unless abandoned formally via quit claim or other deed). Intentional abandonment does, however, eliminate the owner’s ability to later claim trespass. The fact that real property can be abandoned in Washington is specifically recognized in our criminal trespass statute. RCW 9A.52.090 “… it is a defense that:(1) A building involved in an offense under RCW 9A.52.070 (trespass in a structure) was abandoned;”

Washington’s new anti-squatter statute (July 2017) under RCW 9A.52, also specifically does not apply to abandoned homes.

RCW 9A.52.105 (1) …upon the receipt of a declaration signed under penalty of perjury … 2) … a peace officer… has the authority and discretion to make an arrest or exclude anyone …for knowingly entering or remaining unlawfully in a building considered residential real property ... [provided] (4) The declaration must include the following elements: (f) That the premises were not abandoned at the time the unauthorized person or persons entered;

https://app.leg.wa.gov/RCW/default.aspx?cite=9A.52.105 at Section 1, subsection (4)(f)

Abandonment of real property follows the same principles that govern abandonment of personal property. If a person puts an item out on the street with a sign that says "Free" then that item has been expressly abandoned. If the item has no sign but is put out on the street along with the household garbage, then the owner has implicitly abandoned the item. In either case, when another person comes along and takes the item, our courts will not recognize a claim by the abandoning party that their property had been stolen.

Therefore, to the extent that the question Ms. Pinger asked specified the “investor” was possessing “abandoned houses”, your response that he was trespassing is clearly erroneous as a matter of law. My conduct is a specific exception in the WA trespass statute. RCW 9A.52.090(1) https://app.leg.wa.gov/RCW/default.aspx?cite=9A.52.090

Feel free to offer your professional opinion as to the difficulty a person might have in establishing facts sufficient to prove abandonment of real estate as a matter of law, or to suggest the burden of proof that you believe is required to establish abandonment. It is of interest to me, that during the 2011 revision of Washington’s Adverse Possession Statute, the Senate rejected the language proposed by the house which would have required the elements of adverse possession to be proven by Clear, Convincing, and Cogent evidence. (RCW 7.28.083) https://app.leg.wa.gov/RCW/default.aspx?cite=7.28.083

Entry Enables Occupancy, Results in Protected Tenancy

Since it appears that your advice misapprehended the factual situation (your response was applicable to vacant homes but not to abandoned homes), there should be no need to address the further questions of whether any law forbids a person who lawfully enters an abandoned property from remaining there until his occupancy ripens into a legally protected tenancy? I note however, that many investors in WA and around the country (including me) have first-hand experience with unauthorized occupants being granted the protection of the law, -at least temporarily. I humbly suggest that judicial protection of the mere right of possession is likely to be greater for those who occupy real estate that has been intentionally abandoned, than for these instances of individuals who claim an unauthorized tenancy in properties that are merely vacant.

http://www.city-data.com/forum/washington/2485666-squatter-nightmare.html

https://q13fox.com/2016/09/21/pierce-co-neighbors-fed-up-with-squatters-sheriff-says-hands-tied/

https://www.biggerpockets.com/forums/67/topics/64944-the-occupants-from-hell-

https://www.biggerpockets.com/forums/56/topics/250301-squatter-nightmare

https://www.biggerpockets.com/forums/52/topics/110018-update-on-my-squatter?page=2

http://www.landlordstation.com/blog/understanding-squatters-rights-in-washington/

https://www.landlordguidance.com/eviction-notice-forms/washington-eviction/

In common law, possession is itself a property right. Possession acquired without consent is still a property right which the law protects. There is a rebuttable presumption that the possessor of property also has the right of possession. Merely possessing real property gives rise to a right of possession which is enforceable against everyone -except those with a better right to possession. Evidence may be offered to establish who has the legal right of possession, which may include evidence of (Title) ownership, or evidence of a superior right of possession without ownership (Adverse Possession). The passage of time can also bring to an end the owner's right to recover exclusive possession of a property, even without losing the ownership of it, as when an adverse easement for use is granted by a court. Courts routinely enforce contracts based the cognizable right of mere possession.

Rental Agreement Fraud Requires Deception or False Statements

Nor should it be necessary to address the question of whether a law exists which would prohibit an investor who obtains tenancy in an abandoned structure, from subletting his tenancy to another person.

I will however provide a sample of my current rental agreement so that you may consider what I actually promise my tenants, before repeating a statement like this;

“…(I)t is the Hotline lawyer's opinion that the investor would have to be prosecuted on the basis of consumer protection, if nothing else. (Investor’s)Tenant is investing (time, rent, deposits) in a rental property based on a fraudulent lease. Tenant's safety is at risk and so is tenant's financial investment in occupying the property.”

It should be clear from reading my rental agreements that I make no claims of ownership and do not hide my mere possessory interest from those I rent abandoned properties to. There is no fraud.

Court Won't Consider Trespass

In regard to your personal belief as to how a court might view my conduct in an action to Quiet title;

“It is difficult to believe that a court would award unlawful actions with quiet title based on an adverse possession theory.”

Your view is certainly one shared by most people. However, this belief is not shared by the Supreme Court of the State of Washington, nor by any division of the WA appellate courts. Our Courts attempt to apply the legitimate purposes of Adverse Possession.

“The doctrine of adverse possession was formulated at law for the purpose of, among others, assuring maximum utilization of land, encouraging the rejection of stale claims and, most importantly, quieting titles.” Chaplin v. Sanders, 100 Wn.2d 853, 860 (1984)

Chaplin v. Sanders remains the lead case in WA on Adverse Possession. It rewrote the requirement for establishing the required element of “hostility” and overturned dozens of previous decisions. In Chaplin v. Sanders the WA Supreme Court unanimously concluded; (Stafford, J., did not participate)

“Because the doctrine was formulated at law and not at equity, it was originally intended to protect both those who knowingly appropriated the land of others and those who honestly entered and held possession in full belief that the land was their own. …. Thus, when the original purpose of the adverse possession doctrine is considered, it becomes apparent that the claimant's motive in possessing the land is irrelevant and no inquiry should be made into his guilt or innocence. Accord, Springer v. Durette, 217 Or. 196, 342 P.2d 132 (1959); Agers v. Reynolds, 306 S.W.2d 506 (Mo. 1957); Fulton v. Rapp, 98 N.E.2d 430 (Ohio Ct. App. 1950); see also Stoebuck, The Law of Adverse Possession in Washington, 35 Wash. L. Rev. 53, 76-80 (1960).” Chaplin v. Sanders, 100 Wn.2d 853, 861 (1984) Emphasis Added.

“The hostility/claim of right” element of adverse possession requires only that a claimant treat the land as his own throughout the statutory period. The nature of his possession will be determined solely on the basis of the manner in which he treats the property. His subjective belief regarding his true interest in the land, and his intent to dispossess or not dispossess another is irrelevant to this determination.” Chaplin v. Sanders, 100 Wn.2d 853, 861-862 (1984) Emphasis Added.

In a adjudicating a claim of adverse possession, the case law of Washington establishes that a court is unlikely to even consider whether I trespassed, or not.

Summary for your Comment

Here are key points relevant to my conduct. If you disagree with these points, then why not simply cite the law that prohibits such conduct? If you agree with these statements, then isn’t it appropriate to provide a corrected statement to Ms. Naomi Pinger, and to all who read your opinion online? Your professional opinion has been posted in a public forum where it is held out as authority for the false idea that my conduct is criminal (trespass, theft, & fraud).

• -In those rare and unlikely instances where an owner of real estate has intentionally abandoned all of his/her interest in real property, there appears to be no law which prohibits anyone from entering that property.
• -There appears to be no law which would prohibit a person who enters and remains in an intentionally abandoned home from developing a cognizable occupancy or possessory interest in the property.
• -There appears to be no law which would prohibit a person who gains a cognizable occupancy or possessory interest in abandoned real property from subletting their mere possessory interest.

“An error doesn't become a mistake, until you refuse to correct it.” Orlando A. Battista, Chemist, Author

Your opinion has been posted by Naomi on a public forum at this website: https://www.biggerpockets.com/forums/51/topics/743817-unusual-tax-question-is-this-money-for-nothing-is-it-tax-free?page=3

And I have replied to it there and on my own blog at:

https://www.biggerpockets.com/member-blogs/12388/86745-there-s-no-trespass-at-abandoned-property

The online posting of the original question to you, from Ms. Naomi Pinger, and your answer, are copied here in.

Respectfully,

Davido, a single man with only one legal name, living in Thurston County WA

CC Naomi Pinger

                              _______________________________________________________________________-

@James Johnson,  There are benefits to not antagonizing your former landlord. You may want to partner with him. If he can prove his possession for 7 years, then it is possible for you to tack the (7 year) period that your acting landlord has been in possession of the property on to your period of possession.  The two of you working together would have only 3 more years to qualify for adverse possession under Texas's 10 year statute -which applies whether any of you paid the taxes during those 10 years or not.   Therefore, if he can prove that he had been using the property as his own for seven years, and you do so for another three years, then you can file a court action to quiet title in your name.  

You might want to tell your "former" landlord that you'd be willing to give him something, if he helps you quiet title in a few years.  You would need his testimony, an affidavit from him or other proofs (property taxes paid, utilities paid, income taxes paid on the rents etc.)   

Note that, in my experience and opinion, since the owner on title has apparently abandoned this property, your former landlord's crime in renting the house to you was that he falsely claimed that he was the owner.   Since you were actually provided the residence that he promised you for the entire time that you paid for, it is unlikely that he would be prosecuted.   However, it is also unlikely that he reported the income to the IRS, the IRS would be likely to go after him and you would be entitled to a portion of any unreported rents that the IRS collects if you turn him in.  Not saying to do that, instead I would mention that you realize you could turn him in for the reward of a portion of his rents, but that you'd rather have him as a friend.  With that said, I'd also tell him that you may need him in the future.

James, thanks for the update.  Go after that home.  You can get title.

PS  Here is a link discussing the tax liabilities of my own "hobby" with abandoned real estate.   I do not agree with the unanimous tax advice that I was given.  All responding tax professionals say that I owe tax on the rents I've collected even though they are not (yet) mine, under the law of my state (Wa), and even though I have not yet spend those rents.  I will post a correct statement of the relevant tax law in the weeks ahead.  You may find the post and replies regarding taxes due on the rents of interest.  

https://www.biggerpockets.com/forums/51/topics/743817-unusual-tax-question-is-this-money-for-nothing-is-it-tax-free
see also

https://www.biggerpockets.com/forums/51/topics/752652-neighborhood-cooperates-to-rent-abandoned-home-who-pays-taxes

@Nathan Goff, "How should I advertise the rooms? Craigslist? Flyers?"    For renting rooms, Craigslist still works well in many areas, but Craigslist is slowly loosing effectiveness to the many new alternatives.  People are advertising their rooms on Nextdoor.com, Facebook marketplace, Zillow (which publishes your rental to Zillow, Hotpads and Trulia all at once) and there are many other websites for rooms.  Note room rentals won't be published on Zillow, but I still post my room rentals there because they do still get posted to Trulia and Hotpads.

@Colt Savage  Just be sure that you can document what you did and when.   You'll be fine.

@Account Closed Probate is the normal way to handle RE after the death of an owner.   Getting the property through probate can also be profitable for an investor, but it is also possible that probating the property would not be profitable or not be the most profitable way to benefit from this property in apparent distress.  

Depending upon who holds the mortgage, it may be possible for you to buy an assignment of the existing mortgage for full price or at a discount so that you save them the need to foreclose (most frequently done by a small local mortgagee [lender]).   While the lender typically will not tell you private information about the borrower, that same lender is free to tell you anything they want about their asset (the mortgage) including the cost for you to buy it and how they value their asset (the amount left for them to collect).   

Alternatively, it is certainly possible that the mortgage holder might never foreclose, or that they might delay foreclosing until the statute of limitations makes their mortgage unenforceable.  It is true that an eventual foreclosure action is most likely to happen, but I've seen multiple instances where foreclosures are never filed and tens of thousands worth of loans are simply abandoned.  

If the property is unoccupied, then in certain circumstances (owner abandonment) you could just take it over and rent it out as is discussed here https://www.biggerpockets.com/member-blogs/12388-abandoned-property-adventure-on-wildside   

@Bob Floss II "You absolutely have to get every person to sign their heirship affidavit or you cannot proceed."  

I wouldn't give up if the direct approach doesn't work.  Getting all the heirs to sign off or financing probate is likely the best or most direct way to acquire an insurable title.  Acquiring the property with a clear title does appear to be Scott B's goal.  

However there are multiple ways to profit from this property even without clear title.  Even with partial ownership interest, the property can be rented out for 1st, last & deposit, or lease optioned for a multi thousand $ option fee plus monthly rent, or sold on a land contract for 10% to XX% down.  Of course those choices each come with their own challenges and would require full disclosure, but each is doable, each can be quite profitable, and each can provide its own eventual path to full title.

Even without all the heirs signing off, there are other ways than probate to get an insurable title, such as renting for 20 years then filing for Adverse possession against the holdouts, or attempting to get a court order Quieting the Title.  If a Quiet Title was filed, it is possible that the judge would order the property into probate, but many don't.  It is also possible that the heirs would file the required notice under the Real Property Marketable Title Act, as needed to protect their interest, as posted by @Chris Martin, however it is also may happen that the heirs are the ones who give up and do nothing. 

While the alternatives do not meet Scott B's current goal, each can provide cash flow and an eventual path to clear title.  To my thinking some money over time, is better than simply concluding Scott can't proceed once the direct path has been closed.@Chris Martin

@Scott B.  From your post it appears that you are most of the way to obtaining the property.   You haven't provided much info about the 'form' your attorney had the heirs sign and notarize.   Use it if you can, otherwise get as many of those signatures as possible on quit claim deeds.  Also get a quit claim deed from the caretaking brother too.  If necessary, offer him something, (Maybe offer him future cash for his interest if and when you're able to acquire a marketable title).  After you have locked up as much interest in the property you can, then your next move should be a to file a quiet title action as suggested by  @Tyler Gibson .  Ask the court to quiet the title in your name.  

If the heirs object, they'll have to start spending money for an attorney to defend their interest.  You can be confident that most heirs won't even appear (most haven't shown enough interest to get any benefit up to now).   If a any heirs do appear in your quiet title action, then you'll soon have a good idea of what it will cost to buy them out.  You will already be the majority owner.   If one or more refuse to sell their interest to you (at a reasonable price) then you'll have to ask the court to partition the property (order it sold with each owner given their share).  

You are most the way to obtaining the property, don't stop now.  Any heirs serious about retaining an interest in the property will become more likely to sign when their choice is paying up front for their own attorney or receiving a fair amount in cash from your for their interest.

As a negotiating tool, have your Bigger Pockets BRRRR calculator all filled out so that heirs can see the after repair market value, the estimates for repairs and upgrades needed to bring it to market value, the holding costs, sales costs, and estimated court costs to clear the title etc. Show any heir who appears, his or her likely 1/40th equity that is left after deducting all costs. The best they could hope might be less than it will cost each heir to hire an Attorney to protect their interest. You should be able to buy out the few heirs that appear in the quiet title action for an amount close to their best case scenario.

Best to you Scott. 

Here is an well reasoned comparison of the housing market in the time frames 2006 to 2007, and 2018 to 2019
http://danielamerman.com/va/ccc/E4MorPmt.html
 

One salient point is that  "....when we fully take inflation into account (which few people do), and we look at the United States as a whole - then the affordability of a mortgage payment for a nationally average house is 16% below long term historic averages at this point, and 25% below what we saw in 2006-2007. For the average American they are not priced out of buying a home when compared to previous decades."

Nothing in that means that a crash   correction is'nt coming.   But it could be a bit farther down the road.

@Adam Schmidt The statute of limitations likely limits the right to enforce the HELOC. You may want to check out this post on a similar issue.

https://www.biggerpockets.com/forums/41/topics/302092-statute-of-limitations-expired-on-a-second-mortgage-in-california