What to Know About Unlawful Detainer

A number of Washington cities and counties are moving to shutter medical cannabis access points and collective gardens as the July 1, 2016 drop dead date set forth in Senate Bill 5052 approaches. So far, King County, Pierce County, Tacoma and Seattle have all moved to close access points and collective gardens that are not in “strict compliance” with RCW 69.51A. Needless to say, this is impacting medical cannabis landlords and tenants.

Commercial landlords are issuing notices of eviction and filing for unlawful detainers by the bucket-loads against their medical cannabis business tenants. Landlords allege that their tenants breached the lease by engaging in “illegal activity.” The landlords seeking evictions are following in the footsteps of local government shut downs due to the “illegality” of medical cannabis activity and seek to terminate their leases to avoid municipal heat and any resulting liability.

But what if the landlord and the tenant agreed in their lease to accommodate medical cannabis activity? What if an addendum to the lease specifically allows for retail sales of medical cannabis? What if a medical cannabis tenant has operated as an access point or collective garden at a given location for a number of years before local government attempts to close them? If any of these are the case, the eviction and unlawful detainer actions are not slam dunks by any means.

Unlawful detainer for a commercial tenant is controlled by RCW 59.12. The grounds and notice requirements for unlawful detainer are contained in RCW 59.12.030. Once a landlord serves a tenant with a notice of eviction and the tenant fails to vacate, the landlord can file a complaint for unlawful detainer and request a show cause hearing in front of a court commissioner. At the show cause hearing, the landlord and tenant present their sides of the story as to why the tenant should or should not be evicted. If there is at least one material fact in dispute at the show cause hearing, the court will deny an immediate eviction and set the matter for trial. Unlawful detainer actions usually arise from a tenant’s failure to pay rent and those cases tend to be cut and dry. Rarely does an unlawful detainer proceeding concern and breach of lease allegation due to illegal activity, and rarer still are unlawful detainers in the commercial medical cannabis context.

When considering unlawful detainer in the wake of recent local government action relating to cannabis, landlords and tenants should consider the following issues and legal concepts: the legality of medical cannabis, waiver, equitable estoppel, unclean hands, illegal contract and cure.

If you are issuing or are in receipt of a complaint for unlawful detainer, you must be sure to act quickly because these actions involve various hard and fast timelines governed by statute. Most importantly, you should gear up to face a whole host of complicated issues arising from Washington state’s convoluted cannabis laws.