Landlords Beware: Significant Changes in Washington’s Landlord/ Tenant Laws

By: Michael Safren, Esq.

The Washington State Legislature passed engrossed bills 1236 and 5160, which were recently signed into law by Governor Inslee.  Combined, these bills significantly change the existing landlord/ tenant laws to impose new restrictions on landlords seeking to terminate or end tenancies, mandate participation in an Eviction Resolution Program, prohibit the inclusion of certain terms within a lease agreement, and impose mandatory repayment plans on landlords seeking to collect any unpaid rent accrued during the pandemic.  Further, tenants within certain income levels will have access to appointed legal counsel free of charge.

These changes are significant because they apply statewide. Further, they impose new limitations and compliance costs upon landlords, provide additional protections and benefits to tenants, and overall make the business of owning and administering residential rental properties more difficult and fraught with legal liability. 

Just Cause Eviction

While state law previously permitted landlords to terminate a rental agreements/leases without a stated or provided reason, the new laws require that landlord have “cause” to terminate or refuse to continue lease agreements or evict tenants.  There are a several reasons that supply a landlord “just cause” including:

1. a tenant’s failure to pay rent;
2. a tenant’s failure to correct a material breach of the lease;
3. a tenant engaging in waste;
4. if the landlord or the landlord’s immediate family intend to reoccupy the premises;
5. if the landlord is selling the property; and
6. if the tenant made knowing, material and intentional omissions or misrepresentations on the rental application. 

There are other grounds that constitute just cause under the statute.  Critically, each of the reasons contain specific requirements and may have different notice requirements and time periods before a landlord can seek to remove the tenant. 

If the landlord does not fulfill the “just cause” requirements, then the landlord cannot refuse to continue the lease agreement and will be unable to remove the tenant.  Moreover, a landlord who removes a tenant in violation of the “just cause” requirements, can be subject to the tort of wrongful eviction and may be subject to 3 times the monthly rent and the tenant’s reasonable attorney fees.  

The “just cause” requirements will not just apply to month-to-month leases, but will also apply to leases of indefinite terms, and even leases of specific terms or periodic tenancies that either i) do not meet certain statutory requirements or ii) where landlords do not fulfill the notice requirements to tenants to avoid the “just cause” requirements becoming applicable.  

Landlords would be wise to consult with an experienced real estate attorney to help them understand how to structure their lease agreements to avoid being subject to “just cause” requirements, provide proper notice to avoid falling under “just cause” requirements, and if the lease is subject to “just cause” requirements, how to fulfill these complicated and technical requirements.

Repayment Plans

If a tenant has remaining unpaid rent that accrued between March 1, 2020, and six months following the expiration of the eviction moratorium, the landlord must offer the tenant a reasonable schedule for repayment of the unpaid rent.  The new laws mandate several requirements of the repayment planning including:

a. the monthly amount;

b. the start date of the repayment plan;

c. what fees and charges can be included within the repayment plan; and

d. prohibitions against conditioning the offer of a plan upon:

i. compliance with the rental agreement,

ii. payment of attorneys' fees, court costs, or other costs related to litigation if the tenant defaults on the rental agreement; or

iii. a requirement that the tenant apply or receive governmental benefits. 

If a landlord fails to offer a repayment plan that complies with these new requirements, they may be unable to remove the tenant.

While new laws allocate funds for rental assistance, it is important to know that rental assistance does not obviate the obligation to offer a repayment plan.  Moreover, should a landlord participate in some rental assistance programs, they would be prevented from taking legal action against the tenant or pursuing collections against the tenant for the unpaid rent.

If your tenant has unpaid rent originating from March 1, 2020, you should consult with an attorney knowledgeable about the repayment requirements and who can advise you on available rental assistance programs to help recover unpaid rent and assist you in selecting the appropriate strategy to recover unpaid rent. 

Tenants’ Right to Counsel

The new law gives a right to counsel at no charge to tenants who receive public assistance or who have incomes no higher than 200% of the federal poverty level. This currently amounts to $25,760 per year for individuals and $53,000 per year for a household of four.

When tenants have access to attorneys, landlords are less likely to prevail in eviction actions.  In an unpublished study by Housing Justice Project on Seattle evictions in 2019 found that 52% of tenants with attorneys during their evictions were able to stay in their homes, while only 8% of those with no representation stayed in their homes.  Reports from New York, which earlier adopted a right to counsel law, found that 86% of the people who were represented in an eviction proceeding avoided an eviction.

Tenant attorneys review the myriad of laws, local ordinances, and court mandated processes to try to find some error or failing by the landlord to prevent the eviction.  Everything from the tenant screening process, the lease agreement, the maintenance history, registration and licensing requirements for the property itself, the payment history, the provision of required disclosures, the posted notices, the service of process, and summons and complaint are all subject to scrutiny.  Even if the tenant attorney cannot find a valid basis for challenging the eviction, tenant attorneys are likely experienced in appearing in Court before the same judges and commissioners who will hear the case and can make appeals for the Court to consider some of the human factors allowable under RCW 59.18.410 to force a payment plan or just delay signing the order to grant the writ of restitution.

Other Changes

The new laws incorporate the Eviction Resolution Program (ERP), which was first promulgated by order of the Washington Supreme Court, into statute.  The ERP requires that landlords first inform tenants of their right to participate in the program before pursing eviction or removal of the tenant. If tenants choose to participate in the ERP, then the landlord is obligated to meet with tenants and discuss options and alternatives to eviction. Further, Landlords are required to obtain a certificate of compliance from a participating Dispute Resolution Center prior to filing a summons and complaint with the Court to start the judicial phase of the eviction process.

In addition, the new laws forbid a landlord from threatening a tenant with eviction for failure to pay certain nonpossessory charges, nor may a landlord impose late fees if the payment is paid prior to five days after being due. 

What Can You Do as a Landlord?

Given these significant changes, a Landlord should consult with a knowledgeable attorney to review their practices, processes, documentation, lease agreements, and communications with their tenants to ensure that they comply with these new laws.  Many of these new laws impose new restrictions, require new notices and timelines, establish new processes, and can impose liability upon the landlord for failure to comply.  Further, many tenants will now have access to free legal counsel so residential landlords will likely face further scrutiny when proceeding with an eviction action against a tenant.

A landlord would be wise to speak with an attorney who is experienced with the complex, exhaustive, and overlapping sets of rules, regulations, laws, and ordinances to better understand the applicable laws, statutes, and ordinances based on the location of the property, the type of tenancy, and the number of tenants.  Careful consultation with an attorney can help a landlord ensure that they comply with all applicable laws, maintain a viable business model in light of the recent changes in the law, and can successfully fend off challenges by tenant attorneys.

If you have questions about how the recent changes in the Residential Landlord/ Tenant laws impacts you, please contact our offices to discuss your individual concerns.

Michael Safren is a Partner at The Law Offices of Jenny Ling, PLLC.  His practice focuses on business, real estate, probate, and civil litigation.