Chapter §17.12 Termination

• Jurisdiction: Washington

§17.12 TERMINATION

This section considers the circumstances that will or may bring about a cessation of the leasehold estate, as distinguished from cessation of covenantal undertakings. Generally the covenants will also end, being in their nature supportive of or dependent upon the leasehold. Yet no reason appears in law or logic why the parties might not include in the leasing document undertakings quite incidental to the landlord-tenant relation.

(1) Normal expiration of term

The normal expiration of the term of a tenancy may be automatic, or the tenancy may require some action on the part of the landlord or tenant to terminate, depending on the type of tenancy at issue.

(a) Tenancy for years

In the words of RCW 59.04.030, "[i]n all cases where premises are rented for a specified time, by express or implied contract, the tenancy shall be deemed terminated at the end of such specified time." This means the leasehold ends automatically at the end of the fixed term of the tenancy for years, without notice or other act by either party. Lowman v. Russell, 133 Wash. 10, 233 P. 9 (1925). A kind of statutory exception exists for agricultural tenancies. If an agricultural tenant holds over in possession for more than 60 days without a notice to quit, then the tenancy is renewed for another full year. RCW 59.12.035. This is to protect the tenant in its preparations for the next year's crop.

Special statutory provisions exist for termination of leaseholds of mobile home spaces. Such tenancies must be for fixed terms of one year or more unless the tenant agrees in writing to "a month to month basis." RCW 59.20.050(1). Tenancies will automatically renew for the term of the original agreement unless the parties agree otherwise or "the landlord serves notice of termination without cause upon the tenant prior to the termination of the rental agreement." RCW 59.20.090(1). However, under RCW 59.20.080(1), there are only 13 reasons for which a mobile home landlord may terminate or refuse to renew a tenancy, most of them involving opprobrious conduct by the tenant. Tenants, on the other hand, may refuse to renew by giving the landlord notice to that effect one month prior to the end of a term. RCW 59.20.090(3). They may also terminate in the middle of a term for reasons of change of location of employment or, if in the armed forces, transfer. RCW 59.20.090(4).

One of the reasons for which a landlord may terminate a mobile home lease is to allow a change of land use to a use other than for mobile homes. RCW 59.20.080(1)(e). To encourage preservation of existing mobile home communities, in 2008 the Washington legislature passed Engrossed Second Substitute House Bill 1621, which exempts from the real estate excise tax, until December 31, 2018, sales of mobile home communities to "qualified tenant organizations" (formal organizations of mobile home park tenants) or to certain governmental or nonprofit organizations. H.B. 1621, 2008 Leg., Reg. Sess. (Wash. 2008).

(b) Periodic tenancy

An incident of a periodic tenancy is that it continues, period after period, until one party terminates it by giving notice to the other. The notice to end a periodic residential tenancy covered by the Residential Landlord‑Tenant Act of 1973 must be given at least 20 days before the end of one of the rental periods. RCW 59.18.200. With other tenancies in general, the notice must be given at least 30 days before the end of one of the rental periods. RCW 59.04.020. Compare RCW 59.12.030, which allows the landlord to place its tenant in unlawful detainer upon 20 days' notice. In both cases the notice must be "written." RCW 59.18.200; RCW 59.04.050. Periodic tenancies of mobile home spaces must be terminated under the special provisions of RCW 59.20.080 and .090.

Little case authority exists on the contents of the 20- or 30-day notice. In a 1936 case, the court held that it was sufficient for a tenant to write a letter saying that it was giving up the premises as of the date of the letter, the effect being to work a termination at the end of the earliest rental period that was preceded by at least 30 days from receipt of the letter. Worthington v. Moreland Motor Truck Co., 140 Wash. 528, 250 P. 30 (1926).

(c) Tenancy at will

The chief characteristic of a tenancy at will is that, like a license, it is terminable at the will of either party. In Washington, tenancies at will are revocable without the need for any advance notice. Najewitz v. City of Seattle, 21 Wn.2d 656, 152 P.2d 722 (1944). Washington's statutes requiring 20 or 30 days' advance notice to terminate periodic tenancies do not cover tenancies at will. RCW 59.18.200; 59.04.050. Nor may the unlawful detainer statute be used to evict a tenant at will. Turner v. White, 20 Wn.App. 290, 579 P.2d 410 (1978).

Some states have statutes requiring advance notice to terminate the tenancy at will. In the absence of such a statute, the rule usually is that it is terminable even without notice, such as by the tenant's abandonment. But when the landlord cancels without advance notice, the tenant is generally allowed a reasonable time to move out. 1 AMERICAN LAW OF PROPERTY §3.92 (A. James Casner ed., 1952).; see also Najewitz v. City of Seattle, 21 Wn.2d 656.

(d) Tenancy at sufferance

Because we do not know if the common-law tenancy at sufferance even exists in Washington, nothing can be said about the state's rules for its termination. See §17.3(5)(b)for a discussion of Washington's statutory tenancy "by sufferance." A landlord may terminate a common-law tenancy at sufferance without notice. More precisely, the landlord is conferred with a power to treat the tenant as a trespasser or as a tenant, usually on a periodic tenancy. 1 AMERICAN LAW OF PROPERTY §§3.32-3.35 (A. James Casner ed., 1952).

(e) Special limitation on term

Conditions may be placed on a leasehold estate that will cause it to fall in automatically before the normal end of the term without either party exercising a power of termination. This is analogous to a determinable fee that is limited, for example, "so long as a school is operated on the premises." When the condition of school operation ceases to continue, the determinable fee ends automatically, and the possibility of reverter becomes a possessory fee. The analogous leasehold would be limited on language such as, "this leasehold shall terminate if the existing school is closed." By contrast, leaseholds that are terminable upon a party's exercise of a power of termination are analogous to the fee upon condition subsequent, for which appropriate language of condition might be "but if a school ceases to operate on the premises, grantor may reenter and resume his former estate." See §17.12(2) below. If the condition occurs and if a reentry is made physically or by court action, the fee upon condition subsequent ends and the right of entry becomes the fee.

No reason exists in theory why a leasehold, or any estate, for that matter, may not be specially limited. The most precise language of condition that would cause the estate to terminate automatically is "so long as," "during," or "until." More commonly, however, the parties to a lease agree that the leasehold will "terminate" upon such-and-such an event. The leasehold upon special limitation is generally recognized. 1 AMERICAN LAW OF PROPERTY §3.89 (A. James Casner ed., 1952).

In two Washington decisions involving clauses worded as special limitations, the court construed them to be forfeiture clauses. In re Estate of Murphy, 191 Wash. 180, 71 P.2d 6 (1937); Cochran v. Lakota Land & Water Co., 171 Wash. 155, 17 P.2d 861, rehearing denied, 19 P.2d 927 (1933). In both cases the leaseholds were to "terminate" (or equivalent language) upon the tenants' breaches of certain covenants. The Washington court held that no terminations had occurred because the landlords had not exercised powers of termination. Behind this holding seems to be the reasoning that automatic termination would allow the tenant to take advantage of its own breach. See Cochran v. Lakota Land & Water Co., 171 Wash. 155. Although it is unclear whether this is a rule of law or only interpretation, it seems doubtful that Washington intends to allow automatic termination for a party's breach. It still should be possible to have such termination conditioned upon other events, for instance, the landlord's sale of the reversion, the tenant's going out of business, or condemnation of the land.

(2) Powers of termination

In general, there is no power of termination save by force of a clause specifically conferring it. See 1 AMERICAN LAW OF PROPERTY §3.94 (A. James Casner ed., 1952). But see Univ. Props. v. Moss, 63 Wn.2d 619, 388 P.2d 543 (1964) (tenant could rescind lease for breach by landlord of obligation to make additional premises available). The simplest form of termination clause is one that allows a party to terminate by giving the other party notice. Washington has upheld an unconditional termination clause. Peoples Park & Amusement Ass'n v. Anrooney, 200 Wash. 51, 93 P.2d 362 (1939).

Frequently, one party's power to terminate is conditioned on the other's breach of a specified covenant or covenants of the lease. Except for the rescission doctrine announced in Moss, one party's breach generally does not give the other a power of termination unless that power is specifically granted in the lease. Moore v. Twin City Ice & Cold Storage Co., 92 Wash. 608, 159 P. 779 (1916). Some statutory exceptions exist in Washington, however. RCW 59.04.040 provides that, "When a tenant fails to pay rent when the same is due, and the landlord notifies him to pay said rent or quit the premises within ten days, unless the rent is paid within said ten days, the tenancy shall be forfeited at the end of said ten days." The landlord then has an ejectment action. Verline v. Hyssop, 2 Wn.2d 141, 97 P.2d 653 (1940) (court cited...