Duvall Highlands, L.L.C. v. Elwell, 104 Wash. App. 763 (2001)

Citation: Duvall Highlands, L.L.C. v. Elwell, 104 Wash. App. 763 (2001)
Parent Document: Duvall Highlands, L.L.C. v. Elwell, 104 Wash. App. 763 (2001)
Jurisdiction: Washington (state)
Effective Date: 2001-01-08
Original Source: https://www.courtlistener.com/opinion/4930926/duvall-highlands-llc-v-elwell/ ↗

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We note that if Elwell had tendered the undisputed amount to Hwang within the five-day notice period and Hwang had accepted it, Hwang would have waived the right to proceed with the unlawful detainer action at that point.15 But Hwang then could have issued a second five-*769day notice based on the remaining unpaid but disputed amount. Then, if Elwell failed to pay the disputed portion before that notice deadline, Hwang could institute eviction proceedings. If Elwell then raised a valid legal or equitable defense, there would be a material issue of fact on the issue of possession at the show cause hearing, and the case could properly proceed to trial. Here, because Elwell failed to pay anything or follow the statutory procedures for avoiding eviction, the Commissioner erred in sending this case to trial without granting a writ of restitution. We reverse this portion of the judgment and instruct the trial court to enter an order restoring Hwang to possession of the premises.

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