* Philip D. Burgess And Linda L. Burgess, Res. V. Rowena Crossan, App.

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IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
No. 71318-3-1
DIVISION ONE
PHILIP D. BURGESS and LINDA L
BURGESS, husband and wife,
Respondents,
v.
MICHAEL CROSSAN and ROWENA
CROSSAN, d/b/a LAKE WASHINGTON
BOAT CENTER,
Defendants,
ROWENA CROSSAN,
Appellant.
PUBLISHED OPINION
FILED: 	July 27, 2015
r^-.
Leach, J. — Rowena Crossan appeals the trial court's decision forfeiting a
commercial lease and authorizing a writ of restitution. 	Rowena Crossan and
Michael 	Crossan 	operated 	Lake 	Washington 	Boat 	Center on 	property they
leased 	from 	Philip 	Burgess 	and 	Linda 	Burgess. 	Mr. 	Crossan 	committed
numerous acts of nuisance on the property against another tenant who rented
adjoining property from the Burgesses. 	Ms. Crossan claims that because she did
not witness or have knowledge of these acts, the trial court should not have
forfeited her interest in the lease and should have restored possession of the
property to her. 	Because the record shows that the Crossans acquired their
leasehold 	interest 	as 	community 	property, 	the 	trial court 	properly 	held 	Ms.
 	 	 	 	 	 	 	 	 	 	 	 	 	

NO. 71318-3-1/2
Crossan liable for her husband's acts. 	Because a tenant does not have the right
to cure an unlawful detainer based on nuisance, the trial court properly forfeited
the 	Crossans' 	leasehold 	interest 	and 	denied 	Ms. 	Crossan's 	request 	for
restoration of possession of the leased property. 	Finally, we award costs and
attorney fees to the Burgesses as the substantially prevailing party on appeal.
FACTS
On February 28, 2011, Michael and Rowena Crossan, a married couple,
leased a part of commercial space owned by Philip and 	Linda Burgess. 	The
preamble to the lease states,
THIS 	LEASE 	made 	this 	28th 	day 	of 	February, 	2011, 	by and
between PHILIP D. BURGESS and LINDA L. BURGESS, husband
and 	wife, 	("Lessor") 	and 	MICHAEL 	CROSSAN 	and 	ROWENA
CROSSAN, 	d/b/a 	LAKE 	WASHINGTON 	BOAT 	CENTER,
("Lessee"). 	Landlord and Tenant agree as follows."
The signature block for the lease provides,
LESSEE: 	LESSOR:
By
MICHAEL CROSSAN, Individually 	PHILIP D. BURGESS
By
ROWENA CROSSAN, Individually 	LINDA L. BURGESS
LAKE WASHINGTON BOAT CENTER
By
MICHAEL CROSSAN
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NO. 71318-3-1/3
Crossans operated a business named Lake Washington Boat Center at
the leased property. 	Nuno Soares operates Del Toro Auto Sales on an adjoining
part of the property, which he leases from the Burgesses.
From 2012 to 2013, Mr. Crossan committed numerous acts of nuisance on
the property. 	He parked his trucks in a way that blocked Del Toro's access to its
vehicles. 	He once blocked a common driveway used by Del Toro and placed a
heavy object behind the obstructing vehicles to 	prevent towing. 	On several
occasions he prevented Del Toro employees from working on cars by blocking
the work bay entrance with his personal truck and parked boats that obstructed
an 	area 	used 	for 	access. 	Mr. 	Crossan 	vandalized 	Del Toro 	display flags,
breaking them and dragging them across the cars. 	He rammed into two parked
Del Toro Auto Sales vehicles, causing $1,500 in damage to each vehicle.
He verbally harassed Del Toro employees, causing two of them to quit.
On several occasions he went into the Del Toro showroom, in the presence of
customers, and told everyone it was his space and that all employees were out of
a job. 	He damaged Del Toro's security system and pressure hose. 	Finally, when
Mr. Soares questioned his actions, Mr. Crossan spat in Mr. Soares's face and
lunged at him with 	hands outstretched toward 	his 	neck. 	As 	a 	result, 	police
arrested Mr. Crossan.
 	 	 	 	 	 	 	 	 	 	 	 	 	

NO. 71318-3-1/4
Burgess filed this unlawful detainer action against the Crossans. 	After a
two-day trial, 	the trial court concluded that Mr. Crossan 	maintained and 	Ms.
Crossan permitted nuisance and found them guilty of unlawful detainer. 	The trial
court denied Ms. Crossan's motion for reconsideration. 	It also denied her petition
for relief from forfeiture of the lease. 	Ms. Crossan appeals.
STANDARD OF REVIEW
An appellate court reviews challenges to factual findings for substantial
evidence, reviewing the record for sufficient evidence to persuade a rational, fair-
minded person of the fact's truth.1 	This court reviews questions of law de novo.2
It reviews de novo issues of statutory interpretation.3
ANALYSIS
Ms. Crossan raises two issues: (1) a claim that she has no responsibility
for Mr. Crossan's conduct because she and Mr. Crossan leased the property
individually as tenants in common and (2) a claim that the trial court lacked the
authority to forfeit her leasehold because RCW 59.12.170 "contains no language
authorizing forfeiture for nuisance or waste." We reject both claims.
1 IBF, LLC v. Heuft, 141 Wn. App. 624, 638, 174 P.3d 95 (2007).
2 Mountain Park Homeowners Ass'n v. Tvdinqs, 125 Wn.2d 337, 341, 883
P.2d 1383(1994).
3 Aqrilink Foods. Inc. v. Dep't of Revenue, 153 Wn.2d 392, 396, 103 P.3d
1226(2005).
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NO. 71318-3-1/5
The trial court found the Crossans guilty of unlawful detainer based on Mr.
Crossan's acts of nuisance. 	Ms. Crossan challenges the trial court's factual
finding 	that 	"[djuring 	2012 	and 	2013, 	there 	have 	been 	numerous 	instances
involving the Premises and the Defendants' use of the Premises" because it
implied Ms. Crossan's liability for her husband's actions. 	She also challenges the
trial court's conclusion that she permitted her husband's nuisance. 	Ms. Crossan
argues that the court should not have imposed on her legal consequences for her
husband's 	conduct 	because she 	and 	her 	husband 	each 	owned 	a 	separate
individual leasehold interest as tenants in common.
A landlord may initiate an unlawful detainer action against a tenant for
nuisance under RCW 59.12.030. 	The unlawful 	detainer statutes provide an
expedited method of resolving the right to possession of property.4 	Because the
unlawful detainer statute derogates from common law, courts construe it strictly
in favor of the tenant.5
RCW 59.12.030 defines "unlawful detainer" in pertinent part:
A tenant of real property for a term less than life is guilty of unlawful
detainer
(5) 	When 	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,
4 Christensen v. Ellsworth, 162 Wn.2d 365, 370-71, 173 P.3d 228 (2007);
Munden v. Hazelriqq, 105 Wn.2d 39, 45, 711 P.2d 295 (1985).
5 Hous. Auth. v. Terry, 114 Wn.2d 558, 563, 789 P.2d 745 (1990).
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NO. 71318-3-1/6
or maintains on or about the premises any nuisance, and remains
in 	possession 	after the 	service 	(in 	manner 	in 	RCW 	59.12.040
provided) upon him or her of three days' notice to quit.
Ms. 	Crossan 	argues that 	she 	and 	Mr. Crossan 	signed 	the 	lease 	as
cotenants and that the trial court "confused the ability of [Mr.] Crossan to bind his
marital community and the rights of [Ms.] Crossan in her individual capacity." 	As
a 	cotenant, 	she argues, 	she has no 	responsibility for 	Mr. Crossan's acts of
nuisance.
However, "[ijnterests in common held in the names of both spouses or
both domestic partners, whether or not in conjunction with others, are presumed
to be their community property."6 Additionally, with exceptions that do not apply
here, property acquired after marriage is community property.7 To overcome the
presumption of community property status for an asset acquired during marriage,
a party must present clear, cogent, and convincing evidence that the asset falls
within a separate property exception.8 	How spouses are named in a document
does not determine the separate or community character of the property and
provides little evidence of its character.9
These rules and presumptions control this case because spouses owning
property as tenants in common each own that spouse's interest as his or her
6 RCW 64.28.020(2).
7 RCW 26.16.030.
8 In re Marriage of Chumblev, 150 Wn.2d 1, 5, 74 P.3d 129 (2003).
9 InreEstateofBorqhi, 167 Wn.2d 480, 488, 219 P.3d 932 (2009).
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NO. 71318-3-1/7
separate property.10 	But Ms. Crossan's briefing does not address them. 	Instead,
she 	quotes 	Bay 	Industry, 	Inc. 	v. 	Jefferson 	County11 to 	assert that 	married
individuals own 	"an 	undivided 	one-half interest in the whole community real
estate and the community does not own property as a separate entity." 	But that
case holds that each spouse in a marital community owning community property
is a freeholder for purposes of a statutory definition.12 	It does not even consider,
much less decide, when married people hold property as tenants in common and
thus does not support Ms. Crossan's position. 	Olver v. Fowler,13 cited by Ms.
Crossan for the proposition that spouses each own an undivided one-half interest
in community property, does not address the pertinent issue either.
The 	record 	does 	not 	support 	Ms. 	Crossan's 	claim. 	Underneath 	the
signature lines for Mr. and Ms. Crossan, the individual's typed name appears,
followed by the word "Individually." 	But this circumstance cannot, without more,
overcome the presumption by clear, cogent, and convincing evidence that the
Crossans acquired their leasehold interest as community property. 	The record
includes no other evidence to rebut the community property presumption. 	Thus,
the Crossans owned the leasehold as community property. 	Ms. Crossan offers
10lnreEstateofSalvini, 65 Wn.2d 442, 445, 397 P.2d 811 (1964).
11 33 Wn. App. 239, 241.653P.2d 1355(1982).
12 Bay Indus.. 33 Wn. App. at 241.
13 161 Wn.2d 655, 670, 168 P.3d 348 (2007).
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NO. 71318-3-1/8
no reason why she would not be responsible for Mr. Crossan's acts under this
circumstance.
Ms. Crossan next argues that the trial court exceeded its authority when it
forfeited 	the 	Crossans' 	leasehold 	interest. 	She 	contends 	that 	the 	statute
governing leasehold forfeiture, 	RCW 59.12.170, provides this 	remedy only for
unlawful detainer based on nonpayment of rent or breach of a lease condition
and does not authorize forfeiture for nuisance under RCW 59.12.030(5). 	But Ms.
Crossan 	does 	not 	describe, 	and 	we 	cannot 	conceive, 	any 	scenario 	where
restoration of possession to the landlord could logically occur without forfeiture.
RCW 59.12.170 	provides 	in pertinent part, 	"[l]f the 	proceeding 	be for
unlawful detainer after neglect or failure to perform any condition or covenant of a
lease or agreement under which the property is held, 	or after default in the
payment of rent, 	the judgment shall also declare the forfeiture of the lease,
agreement, or tenancy."
An 	appellate 	court construes a 	statute to 	give 	meaning 	to 	legislative
intent.14 	A court finds the plain meaning of statutory language by looking at the
"the ordinary meaning of the language at issue, the context of the statute in
which that provision is found, related provisions, and the statutory scheme as a
whole."15 A reviewing court harmonizes statutory provisions and rules.16
14 Christensen, 162 Wn.2d at 372-73.
15 Christensen, 162 Wn.2d at 373.
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NO. 71318-3-1/9
The 	legislature 	designed 	unlawful 	detainer 	proceedings 	to 	summarily
resolve issues of possession between a tenant and landlord.17 	RCW 59.12.030
describes seven wrongful acts constituting unlawful detainer:
A tenant of real property for a term less than life is guilty of unlawful
detainer either:
(1) When he or she holds over or continues in possession, in
person or by subtenant, of the property or any part thereof after the
expiration of the term for which it is let to him or her. 	When real
property is leased for a 	specified term or period 	by express or
implied contract, 	whether written 	or 	oral, 	the 	tenancy 	shall 	be
terminated without notice at the expiration of the specified term or
period;
(2) When he or she, having leased property for an indefinite
time with 	monthly or other periodic 	rent 	reserved, 	continues in
possession thereof, in person or by subtenant, after the end of any
such month or period, when the landlord, more than twenty days
prior to the end of such month 	or period, has served notice (in
manner in RCW 59.12.040 provided) requiring him or her to quit the
premises at the expiration of such month or period;
(3) When he or she continues in possession in person or by
subtenant after a default in the payment of rent, and after notice in
writing requiring in the alternative the payment of the rent or the
surrender of the detained 	premises, served (in manner in RCW
59.12.040 provided) in behalf of the person entitled to the rent upon
the person owing it, has remained uncomplied with for the period of
three days after service thereof. 	The notice may be served at any
time after the rent becomes due;
(4) When he or she continues in possession in person or by
subtenant after a neglect or failure to keep or perform any other
condition or covenant of the lease or agreement under which the
property is held, including any covenant not to assign or sublet,
than 	one 	for 	the 	payment 	of 	rent, 	and 	after 	notice 	in writing
requiring in the alternative the performance of such condition or
covenant or the surrender of the property, served (in manner in
16 Christensen, 162 Wn.2d at 373.
17 Terry, 114 Wn.2d at 563 (quoting Wilson v. Daniels, 31 Wn.2d 633, 643-
44, 198 P.2d 496 (1948)).
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NO. 71318-3-1/10
RCW 	59.12.040 	provided) 	upon 	him 	or 	her, 	and 	if there 	is 	a
subtenant in actual possession of the premises, also upon such
subtenant, shall remain uncomplied with for ten days after service
thereof. 	Within ten days after the service of such notice the tenant,
or 	any subtenant in actual 	occupation 	of the 	premises, 	or 	any
mortgagee 	of 	the 	term, 	or 	other 	person 	interested 	in 	its
continuance, may perform such condition or covenant and thereby
save the lease from such forfeiture;
(5) When 	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 	(in 	manner 	in 	RCW 	59.12.040
provided) upon him or her of three days' notice to quit;
(6) A person who, without the permission of the owner and
without having color of title thereto, enters upon land of another and
who fails or refuses to remove therefrom after three days' notice, in
writing and served upon him or her in the manner provided in RCW
59.12.040. 	Such 	person 	may 	also 	be 	subject to 	the 	criminal
provisions of chapter 9A.52 RCW; or
(7) When he or she commits or permits any gang-related
activity at the premises as prohibited by RCW 59.18.130.
For items 1, 2, 5, 6, and 7, the tenant cannot cure the wrongful act. 	The statutory
notice terminates the tenancy.18 	For items 3 and 4, the notice must provide the
tenant an opportunity to cure the wrongful act. 	Because the statutory notice for
these two items does not automatically terminate the tenancy, RCW 59.12.070
provides for forfeiture as a judgment provision when a landlord prevails on either
of these grounds. 	A statutory forfeiture provision would be redundant for the
other items because the statutory notice terminated the tenancy.
Our reading of chapter 59.12 RCW comports with legislative purpose and
case law. 	A 	construction of RCW 59.12.170 that allowed a 	court to restore
18 Owens v. Lavton. 133 Wash. 346, 347, 233 P. 645 (1925).
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NO. 71318-3-1/11
possession 	of 	leased 	premises 	to 	the 	owner 	but 	maintained 	the 	tenant's
leasehold in any fashion would complicate rather than simplify and expedite the
unlawful detainer process. 	In Shepard v. Dve.19 the court considered whether a
predecessor statute to RCW 59.12.030(5) provided the landlord the remedy of
forfeiture of 	its tenant's 	leasehold when 	a 	subtenant committed a 	nuisance.
While the Shepard court did not address if forfeiture was an appropriate remedy
for unlawful 	detainer, 	it 	treated 	a 	landlord's repossession 	of property and
forfeiture of the tenant's leasehold as the same remedy. 	The court stated, "If,
under the cases we have referred to, the act of the sublessee works a forfeiture
the same as an act of the lessee, it then follows that the landlord's right to forfeit
is properly exercised 	by giving notice 	under subdivision 	5."20 	These words
embrace the availability of the remedy of forfeiture when a tenant commits a
nuisance.
For 	these 	reasons, 	the 	trial 	court 	properly 	forfeited 	the 	Crossans'
leasehold, as well as their right to possess the leased property.
Ms. Crossan claims that the trial court erred when it denied her petition for
relief from forfeiture under RCW 59.12.190. 	That statute allows a court to grant a
tenant relief from forfeiture of the lease only if the tenant has paid rent due in full
or fully performed conditions of the covenants stipulated. 	Ms. Crossan stated in
19 137 Wash. 180, 187-88, 242 P. 381 (1926).
20 Shepard, 137 Wash, at 188.
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NO. 71318-3-1/12
her petition that she would not allow Mr. Crossan on the premises without the
Burgesses' permission, that she would post a bond to ensure this, and that all
rent due riad been paid. 	However, as discussed above, RCW 59.12.030 only
allows a tenant receiving a statutory notice to cure in two circumstances—when
the tenant failed to pay rent or breached a lease condition or covenant.21 	In an
unlawful detainer action based on nuisance, a tenant may not cure if found guilty
for nuisance.22 	RCW 59.12.190 provides a parallel postjudgment remedy in the
same two circumstances. 	The statute makes no reference to the other acts
constituting unlawful detainer and provides no remedy when those acts provide
the basis for a forfeiture.
Attorney Fees
The Burgesses request attorney fees. 	A court may award attorney fees to
a substantially prevailing party "'only on the basis of a 	private agreement, a
statute, or a recognized ground of equity.'"23 	The lease agreement between the
parties provided in paragraph 24 that
[i]n the event either party requires the services of an attorney in
connection with . . . the restitution of said premises to Lessor and/or
eviction of Lessee during said term or after the expiration thereof,
21 17 William B. Stoebuck & John W. Weaver, Washington Practice:
Real Estate: Property Law § 6.80, at 440-41 (2d ed. 2004).
22 RCW 59.12.030(5); 17 Stoebuck & Weaver, at 440.
23 Buck Mountain Owner's Ass'n v. Prestwich, 174 Wn. App. 702, 731, 308
P.3d 644 (2013) (quoting Equitable Life Leasing Corp. v. Cedarbrook. Inc., 52
Wn. App. 497, 506, 761 P.2d 77 (1988)); RAP 14; RAP 18.1.
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NO. 71318-3-1/13
the 	prevailing 	party 	will 	be 	entitled 	to 	a 	reasonable 	sum 	for
attorney's fees and court costs.
Because the Burgesses are the substantially prevailing party, they may
recover attorney fees and costs under RAP 18.1 and RAP 14.
CONCLUSION
Because 	Mr. 	and 	Mrs. 	Crossan 	acquired 	their 	leasehold 	interest 	as
community property, the evidence supports the trial court's conclusion that Ms.
and Mr. Crossan were guilty of unlawful detainer. 	Because RCW 59.12.170
allows a court to forfeit the leasehold of a tenant guilty of an unlawful detainer
based on nuisance and the remedy provided by RCW 59.12.190 is not available
for this, 	the trial court properly denied 	Ms. Crossan's petition for relief from
forfeiture of the lease.
We 	affirm 	and 	award 	attorney 	fees 	and 	costs 	to 	the 	Burgesses
conditioned on their compliance with RAP 18.1 and RAP 14.
WE CONCUR:
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