Two headlines from this week tell you where commercial real estate in our region is right now. On October 21, the Puget Sound Business Journal reported that Keelbase Capital took over The Baxter, an 80-unit apartment building in downtown Bellevue, through a deed in lieu of foreclosure recorded October 14. Keelbase first bought the existing loan from the lender, then took the deed. A day later, the PSBJ reported that downtown Seattle's Central Building is back on the market, three years after it faced foreclosure.
When a loan goes bad, owners and lenders in Washington usually have two ways out: a negotiated deed in lieu, or a nonjudicial trustee's sale. Here's how I explain the choice to clients.
The Trustee's Sale: Washington's Default Path
Most commercial loans here are secured by a deed of trust, so the lender can foreclose without going to court under the Deed of Trust Act, chapter 61.24 RCW. The deed of trust must contain a power of sale, and the borrower must be in default (RCW 61.24.030). A notice of default goes out at least 30 days before the notice of sale. The trustee then records and mails the notice of sale at least 90 days before the auction, including to junior lienholders and tenants of record (RCW 61.24.040).
The trustee's deed conveys whatever the borrower could convey when the deed of trust was signed (RCW 61.24.050). In other words, the sale wipes out junior liens recorded after the deed of trust, and those liens then attach to any surplus (RCW 61.24.080).
The big commercial wrinkle is deficiency. For residential borrowers, a trustee's sale generally ends personal liability. For a commercial loan signed after June 11, 1998, the lender can still sue a borrower or guarantor for the gap between the debt and the property's fair value, but must file within one year of the sale (RCW 61.24.100(3)–(4)).
The Deed in Lieu: A Negotiated Handoff
In a deed in lieu, the owner simply deeds the property to the lender, or to the lender's designee, in exchange for some release of the debt. It's faster, quieter, and cheaper than an auction. It also gives the parties room to negotiate a smooth handover of tenants, records, and service contracts, a cash payment to the owner for cooperating, and the scope of any release.
One Washington rule every guarantor should know: under RCW 61.24.100(7), when a lender accepts a deed in lieu on a commercial loan, the guarantor is released from liability for the debt unless the guarantor agrees otherwise as part of the deal. That makes the guaranty the real bargaining chip.
The Risks on Each Side
- Junior liens. This is the biggest weakness of a deed in lieu. It doesn't wipe out second deeds of trust, mechanics' liens, or judgments. The lender takes the property subject to them, which is why lenders order a title report before agreeing to anything.
- Merger. When the lender holds both the deed of trust and the ownership, the two interests can "merge," and the lien can disappear, letting junior liens move up in priority. Well-drafted deeds in lieu state that no merger is intended, and many lenders keep the loan alive in a separate entity.
- Deficiency exposure. Borrowers should get a written release. Without one, the debt may survive the transfer. Lenders who want to keep a guaranty in place need the guarantor's written agreement, because of RCW 61.24.100(7).
- Title insurance. Title insurers look closely at deeds in lieu. They want an estoppel affidavit confirming the transfer was voluntary and for fair value, so it can't later be attacked as a fraudulent transfer or a bankruptcy preference.
- Tax. Washington's real estate excise tax generally doesn't apply to a deed in lieu given to satisfy a deed of trust (RCW 82.45.010(3)(j)). Federal tax is another matter. A deed in lieu is treated as a sale, and forgiven debt can be taxable to the borrower (IRS Publication 4681). Talk to your CPA before you sign.
What This Means for Buyers of Distressed Assets
The Baxter shows the 2026 playbook: buy the note, then negotiate the deed in lieu. You step into the lender's position and take title without an auction, but you inherit whatever is on title, so a full title and lien review is essential.
Buying at a trustee's sale is different. Title comes clear of junior liens, but you're bidding at a public auction with limited time to inspect, usually for cash, and you take the property as is. Assets like the Central Building that have already been through distress often come back as ordinary listings. That can be the best time to buy, because the capital structure has been reset.
What This Means in Snohomish County
Big Seattle and Bellevue deals make the headlines, but the same pressures are reaching smaller owners in Snohomish County commercial real estate. In Everett commercial real estate, owners of older office and mixed-use buildings who face 2026 refinancing at today's rates are the most likely to be talking to their lenders. The same is true for owners of retail and flex buildings in Marysville commercial real estate and Arlington commercial real estate. Investors watching Mukilteo, Mill Creek, Snohomish, and Monroe commercial real estate should know that note purchases and deed-in-lieu deals rarely hit the open market. They come through relationships with lenders and owners.
Key Takeaways
- A trustee's sale under RCW 61.24 wipes out junior liens. A deed in lieu does not.
- On commercial loans, lenders can pursue a deficiency for up to one year after a trustee's sale.
- Under RCW 61.24.100(7), a deed in lieu releases commercial guarantors unless they agree otherwise.
- Insist on a non-merger clause, an estoppel affidavit, and a title review.
- Washington REET generally doesn't apply to a deed in lieu, but federal income tax on forgiven debt might.
- For buyers, buying the note and then taking a deed in lieu is the quiet way into distressed assets.
Let's Talk
If you're an owner facing a loan maturity, a lender weighing your options, or a buyer hunting for distressed opportunities, I can help with both the legal and the brokerage side. Visit Weitz Commercial or contact me directly.
This post is general information, not legal or tax advice, and reading it doesn't create an attorney-client relationship. Every situation is different, so talk to a qualified attorney and tax advisor about yours.