Steven Pohl v. Dennis Mark ( 2024 )

Filed
Washington State
Court of Appeals
Division Two
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
May 14, 2024
DIVISION II
STEVEN POHL, No. 58054-3-II
Respondent,
v. UNPUBLISHED OPINION
DENNIS MARK,
Appellant.
MAXA, P.J. – Dennis Mark appeals the trial court’s judgment of unlawful detainer entered
in favor of Steven Pohl pursuant to the Residential Landlord Tenant Act (RLTA).
Pohl orally gave Mark permission to move onto his property in Elma. Pohl did not
require payment of rent, only that Mark would contribute to utility payments, would work on the
property, and look after Pohl’s health. Mark moved a makeshift recreational vehicle onto the
property and built other structures around the recreational vehicle. Pohl later attempted to evict
Mark from the property and filed an unlawful detainer action based on an RLTA provision,
RCW 59.18.650(2)(c). The trial court entered a judgment for unlawful detainer and a writ of
restitution restoring possession of the property to Pohl.
We hold that the RLTA does not apply to Mark’s occupancy of Pohl’s property.
Therefore, the trial court erred when it found Mark liable for unlawful detainer and awarded
attorney fees and costs to Pohl. Accordingly, we remand for the trial court to vacate the
judgment of unlawful detainer, including the award of attorney fees and costs to Pohl.
No. 58054-3-II
FACTS
Pohl owns a property in Elma. Pohl agreed to let Mark stay on his property starting in
January 2021. There was a verbal agreement between the parties that Mark would contribute
toward utility payments, work on the property, and look after Pohl’s health. No rent was
specified.
Mark moved a makeshift recreational vehicle that he constructed out of a boat trailer onto
Pohl’s property and lived in it. Mark subsequently built other structures around the recreational
vehicle, including a propane-powered shower house.
In February 2023, Pohl served Mark a three-day notice to quit the premises because of
nuisance, waste, and/or unlawful activity, citing RCW 59.18.650(2)(c) and RCW 59.12.030(5).
Pohl then filed a complaint for unlawful detainer, alleging that Mark had not vacated the
premises. The complaint alleged that Mark was in violation of the Grays Harbor County code
and ordinances for camping in an area too long and not being served by approved sanitation
facilities. The trial court ordered a show cause hearing.
Mark filed a brief in opposition to the unlawful detainer action, arguing that he was not a
“tenant” under the RLTA, and therefore he could be evicted only through an action for
ejectment. Mark also filed a declaration in which he denied engaging in illegal activities on the
property, and asserted that he had a health department approved portable toilet. At the eviction
show cause hearing, Mark asserted that he was an at-will tenant not subject to unlawful detainer
proceedings and that he did conduct unlawful activities on the property.
The trial court found the RLTA applied because a rental agreement was created between
a landlord and a tenant. The court also found that Mark was properly served with a notice to
vacate the premises pursuant to a RLTA provision, RCW 59.18.650(2)(c). The court entered a
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judgment that Mark was liable for unlawful detainer and that Pohl was entitled to a writ of
restitution. The court also awarded Pohl attorney fees and costs in the amount of $3,391.
Mark appeals trial court’s unlawful detainer judgment.
ANALYSIS
A. MOOTNESS
Initially, Pohl claims that this appeal is moot because Mark now has vacated the property
and is not seeking restoration of his occupancy or damages. However, the trial court entered a
money judgment against Mark in the unlawful detainer action for Pohl’s attorney fees and costs,
and Mark challenges that judgment. Therefore, this appeal is not moot.
B. APPLICATION OF RLTA
Mark argues the trial court erred in entering an unlawful detainer judgment based on the
RLTA because the RLTA was inapplicable to his occupancy on Pohl’s property. We agree.
1. RLTA Provisions
The RLTA applies to “landlord-tenant relationships.” RCW 59.18.911. Therefore,
application of the RLTA depends on the statutory definitions of “landlord”, “tenant,” and related
terms.
RCW 59.18.030(16) defines “landlord” as “the owner, lessor, or sublessor of the dwelling
unit or the property of which it is a part.” RCW 59.18.030(34) defines “tenant” as “any person
who is entitled to occupy a dwelling unit primarily for living or dwelling purposes under a rental
agreement.” RCW 59.18.030(10) defines “dwelling unit” as “a structure or that part of a
structure which is used as a home, residence, or sleeping place by one person or by two or more
persons maintaining a common household.” And RCW 59.18.030(30) defines “rental
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agreement” as “all agreements which establish or modify the terms, conditions, rules,
regulations, or any other provisions concerning the use and occupancy of a dwelling unit.”
RCW 59.18.650(1)(a) states that “[a] landlord may not evict a tenant . . . except for the
causes enumerated in subsection (2) of this section.” RCW 59.18.650(2)(c) states that a landlord
may evict a tenant when “[t]he tenant continues in possession after having received at least three
days’ advance written notice to quit after he or she commits or permits waste or nuisance upon
the premises, unlawful activity that affects the use and enjoyment of the premises.”
Under RCW 59.12.030(5) a “tenant” is liable for unlawful detainer “[w]hen he or she
commits or permits waste upon the demised premises, or when he or she sets up or carries on
thereon any unlawful business, or when he or she erects, suffers, permits, or maintains on or
about the premises any nuisance, and remains in possession after the service . . . upon him or her
of three days’ notice to quit.”
If the RLTA does not apply, a person occupying premises is not subject to eviction under
RCW 59.18.650(2). Instead, that person’s occupancy constitutes a tenancy at will, where the
tenant comes onto the property with the owner’s permission, the tenancy was terminable without
notice, and there was no rent paid. Turner v. White, 20 Wn. App. 290, 292, 579 P.2d 410,
(1978). A tenancy at will may be terminated “only upon demand for possession, allowing the
tenant a reasonable time to vacate.” Id.
2. Analysis
Here, Mark’s makeshift recreational vehicle and the surrounding structures he built
constituted a “dwelling unit.” But Pohl did not own that dwelling unit; Mark did. Pohl merely
allowed Mark to occupy the property on which Mark’s dwelling unit was located. The property
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itself does not qualify as a dwelling unit because it is not a “structure.” Therefore, Pohl was not
a landlord under RCW 59.18.030(16) because he was not the owner of a dwelling unit.
Further, Mark was not a tenant under RCW 59.18.030(34), which requires that the person
be entitled to occupy a dwelling unit under a rental agreement. But the oral agreement between
Pohl and Mark did not involve occupancy of a dwelling unit. The agreement only allowed Mark
to occupy the property on which Mark’s dwelling unit was located.
Because Pohl was not a landlord and Mark was not a tenant as defined in the RLTA, the
RLTA did not apply to Mark’s occupancy of Pohl’s property.
Pohl argues that he did not have to own Mark’s dwelling unit for the RLTA to apply
because the definition of “landlord” expressly applies to the owner of a dwelling unit or “or the
property of which it is a part.” RCW 59.18.030(16). However, RCW 59.18.030(23) defines
“property” as “all dwelling units on a contiguous quantity of land managed by the same landlord
as a single, rental complex.” The definition does not include occupancy of land absent a
dwelling unit owned by the landlord.
Because the RLTA does not apply to Mark’s occupancy of Pohl’s property, the trial court
erred in finding Mark liable for unlawful detainer under a RLTA provision, RCW
59.18.650(2)(c). Therefore, the trial court’s unlawful detainer judgment must be vacated.
B. TRIAL COURT ATTORNEY FEES
The RLTA authorizes an award of attorney fees to the prevailing party. RCW
59.18.290(2)-(3). That was the apparent basis for the trial court’s award of attorney fees to Pohl.
Because we conclude above that the RLTA not apply here, the award of trial court attorney fees
and costs also must be vacated.
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C. ATTORNEY FEES ON APPEAL
Pohl requests an award of attorney fees on appeal under RCW 59.18.290(2)-(3) and
because Mark’s appeal was frivolous. Because Pohl is not the prevailing party on appeal and
Mark’s appeal clearly is not frivolous, Pohl is not entitled to an award of attorney fees on appeal.
Mark requests attorney fees under two RLTA provisions. RCW 59.18.290(1) allows a
tenant to recover attorney fees if removed from the premises in violation of the RLTA. RCW
59.18.650(4) states that a tenant is entitled to recover attorney fees if a tenant is removed from a
dwelling in violation of that section. However, we have held above that the RLTA does not
apply. Therefore, we decline to award Mark his attorney fees on appeal.
CONCLUSION
We remand for the trial court to vacate the judgment of unlawful detainer including the
award of attorney fees and costs to Pohl.
A majority of the panel having determined that this opinion will not be printed in the
Washington Appellate Reports, but will be filed for public record in accordance with RCW
2.06.040, it is so ordered.
MAXA, P.J.
We concur:
LEE,J.
CHE,J.
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