Robert R. Rowley PS

Attorney at Law

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BILL REPORT SB 5160

EFFECTIVE APRIL 22, 2021

Residential Landlord-Tenant Act—Generally. For rent accrued between March 1, 2020, and six months following expiration of the Governor’s eviction moratorium:

  • a landlord may not report to a prospective landlord a tenant’s nonpayment of such rent or an unlawful detainer action resulting from nonpayment of such rent; and
  • a prospective landlord may not take an adverse action based on a prospective tenant’s nonpayment of such rent.

A landlord may not impose late fees or other charges for a tenant’s nonpayment of rent that became due between March 1, 2020, and six months following the Governor’s eviction moratorium.

A landlord or prospective landlord may not deny, discourage application for, or otherwise make unavailable any rental dwelling unit based on a tenant’s or prospective tenant’s medical history, including any prior or current exposure or infection to the COVID-19 virus. A landlord or prospective landlord may also not inquire about, consider, or require disclosure of a tenant’s or prospective tenant’s medical records or history, unless such disclosure is necessary to evaluate a reasonable accommodation or modification request.

Any landlord or prospective landlord in violation of the aforementioned prohibitions and requirements is liable for two and one-half times the monthly rent, with court costs and attorneys’ fees. The court must determine the penalty amount in order to deter future violations.

For one year following expiration of the Governor’s eviction moratorium, if a tenant demonstrates an ability to pay to reinstate the tenancy through the TPP, the prohibition on a tenant from seeking relief to reinstate the tenancy if they have been provided three or more pay or vacate notices within 12 months does not apply, and any reimbursement to the landlord under the TPP may include up to three months of prospective rent to stabilize the tenancy as determined by the court.

The Governor’s eviction moratorium in Proclamation 20-19.6 is declared to end on June 30, 2021. “Public health emergency” is defined as Governor Proclamation 20-05 and its amendments. “Tenant” is defined to include persons residing in transient lodging, such as hotels/motels or camping areas as primary dwellings, for 30 days or more prior to March 1, 2020. “Tenant” does not include any individual residing in a hotel or motel or camping area as their primary dwelling for more than 30 days after March 1, 2020, if the hotel or motel or camping area has provided the individual with a seven-day eviction notice, which must provide certain legal-aid resource information, and does not include occupants of homeless mitigation sites or persons entering onto land without the permission of the owner or lessor.

Any local government provision of solid waste or hygiene services to unsanctioned encampments does not constitute permission to occupy land.

Repayment Plans. If a tenant has remaining unpaid rent accrued between March 1, 2020, and six months following expiration of the Governor’s eviction moratorium or the end of the public health emergency, whichever is greater, the landlord must offer tenants a reasonable schedule for repayment of the unpaid rent that does not exceed monthly payments equal to one-third of the monthly rental charges owed. If the tenant fails to accept the terms of a reasonable repayment plan within 14 days of the offer, the landlord may proceed with an unlawful detainer action subject to any requirements under the ERP. If the tenant defaults on any rent owed under a repayment plan, the landlord may apply for reimbursement from the LMP or proceed with an unlawful detainer action subject to any requirements under the ERP. During any unlawful detainer proceeding, the court must consider the tenant’s circumstances, including any decreased income or increased expenses due to COVID-19, and the repayment plan terms offered during any unlawful detainer proceeding. It is a defense to an unlawful detainer action if the landlord did not offer a repayment plan. The tenant and landlord may continue to seek rental assistance to reduce or eliminate any unpaid rent balance to the extent available funds exist from public, private, or nonprofit rental assistance programs.

Any repayment plan entered into by the landlord and tenant must:

  1. begin no sooner than 30 days after the plan is offered;
  2. cover rent only and not legal fees, late fees, or other charges;
  3. allow for payment from any source of income, including benefits, assistance, or subsidy programs, or from pledges by non-profits, churches, religious institutions, or governmental entities;
  4. not include provisions or be conditioned on:
  5. the tenant’s compliance with the rental agreement, payment of attorneys’ fees, court costs, or other costs related to litigation if the tenant defaults on the agreement;
  6. a requirement that the tenant apply for or provide proof of receipt of governmental benefits; and
  7. the tenant’s waiver of any rights to an unlawful detainer notice or related provisions before a writ of restitution is issued.

Landlord Mitigation Program.  A landlord is eligible to file a reimbursement claim under the LMP up to $15,000 for any unpaid rent that accrued between March 1, 2020, and six months following expiration of the Governor’s eviction moratorium, when the tenant being low-income or resource-limited or experiencing hardship has voluntarily vacated or abandoned the tenancy, but not if vacation is due to an unlawful detainer action based on nonpayment of such rent.  A landlord is also eligible to file a reimbursement claim under the LMP up to $15,000 for any remaining rent after the tenant defaults on a repayment plan as long as the tenancy has not been terminated at the time of reimbursement. After reimbursement under either type of claim, the landlord may not take legal action or pursue a collection action against the tenant for damages or to seek any remaining unpaid rent accrued between March 1, 2020, and six months following expiration of the Governor’s eviction moratorium.

For funds deposited into the LMP account, Commerce must prioritize allowable costs related to claim reimbursements for landlord mitigation for renting private market rental units to low-income tenants using a housing subsidy program.

Eviction Resolution Pilot Program. The administrative office of the courts (AOC), subject to the availability of amounts appropriated, must contract with DRCs within or serving each county to establish a two-year, statewide court-based eviction resolution pilot program (ERP) operated in accordance with Washington supreme court order no. 25700-B-639 and any standing judicial order of the individual superior court. The ERP must be used to facilitate the resolution of nonpayment of rent cases between a landlord and tenant before the landlord files an unlawful detainer action. Before filing an unlawful detainer action for nonpayment of rent, the landlord must provide a 14-day pay or vacate notice and an additional notice to the tenant informing them of the ERP. The landlord must retain proof of service or mailing of the additional notice. The additional notice to the tenant must provide at least the following information regarding the eviction resolution pilot program:

  1. contact information for the local DRC;
  2. contact information for the county’s housing justice project or, if none, a statewide organization providing housing advocacy services for low-income residents;
  3. the following statement: “The Washington State Office of the Attorney General has this notice in multiple languages on its website. You will also find information there on how to find a lawyer or advocate at low or no cost and any available resources to help you pay your rent. Alternatively, you may find additional information to help  you at http://www.washingtonlawhelp.org”;
  4. the name and contact information of the landlord, the landlord’s attorney, if any, and the tenant; and
  5. the following statement: “Failure to respond to this notice within 14 days may result in the filing of a summons and complaint for an unlawful detainer action with the court.”

At the time of service or mailing of the pay or vacate notice and additional notice to the tenant, a landlord must also send copies of these notices to the local DRC serving the area where the property is located.

The AOC may also establish and produce other notice forms and requirements as necessary to implement the ERP. A landlord must secure a certification of participation with the ERP by the appropriate DRC before an unlawful detainer action for nonpayment of rent may be heard by the court.

Any superior court, in collaboration with the DRC located within or serving the same county, participating in the ERP must report annually to the Administrative Office of the Courts (AOC) beginning January 1, 2022, until January 1, 2023, on the following:

  1. the number of unlawful detainer actions for nonpayment of rent that were subject to program requirements;
  2. the number of referrals made to DRCs;
  3. the amount of nonpayment of rent cases resolved by the ERP;
  4. how many instances the tenant had legal representation, either at the conciliation stage or formal mediation stage;
  5. the number of certifications issued by DRCs and filed by landlords with the court; and
  6. any other information that relates to the efficacy of the ERP.

By July 1, 2022, until July 1, 2023, the AOC must provide an annual report to the Legislature summarizing the ERP report data shared by the superior courts and DRCs.

Legal Representation of Indigent Tenants. The court must appoint an attorney for an indigent tenant in any unlawful detainer proceeding subject to the availability of amounts appropriated. Prioritization on the provision of legal representation services must be in those counties in which the most evictions occur and to indigent tenants who are disproportionately at risk of eviction. “Indigent” is defined as any person:

  1. receiving assistance from certain public and medical benefits programs; or
  2. with an annual income, after taxes, at 200 percent or below of the federally established poverty level.

OCLA is responsible for implementation of the indigent tenant’s right to legal representation services and for the administration of program funds, and the state must pay the costs of such legal representation services. OCLA must contract with attorneys and other agencies to implement legal representation services for indigent tenants within appropriated amounts. Within 90 days of the effective date of the act, OCLA must also submit to the Legislature and Administrative Office of the Courts a plan outlining full implementation of the legal representation services program within 12 months of the effective date of the act.

The uniform 14-day pay or vacate notice for nonpayment of rent is updated to inform tenants of the legal representation mandate and related contact information for qualifying low-income renters, general information regarding DRC services, as well as state and local rental assistance programs as listed on the Office of the Attorney General’s website. Upon expiration of the ERP:

  1. a landlord must provide the 14-day notice to the DRC located within or serving the county of tenancy;
  2. DRCs are encouraged to notify the housing justice project or Northwest Justice Project located within or serving the county in which the DRC is located, as appropriate, once the 14-day notice is received from the landlord; and
  3. it is a defense to an unlawful detainer eviction if a landlord does not provide the notice to the appropriate DRC.

The eviction summons is also updated to inform tenants of the legal representation mandate for indigent tenants and to provide general information regarding DRC services.

State Rental Assistance Programs. Commerce must authorize landlords an opportunity to apply to certain state rental assistance programs, if feasible, and establish necessary application and eligibility requirements and any conditions on the receipt of funds. Until March 31, 2022, Commerce must also provide rental assistance directly to a landlord on behalf of an indigent tenant who is unable to:

  1. access the ERP because it is not available in the region where the property is located, or it is not accepting new claims; or
  2. obtain legal representation under the new legal representation program for indigent tenants.

Through a 2021-23 fiscal biennium appropriation of $7,500,000 from the state fiscal recovery fund, Commerce must develop a landlord grant assistance program to provide grants to eligible landlords for up to 80 percent of unpaid rental arrears during the Governor’s eviction moratorium and adopt rules as necessary to implement the program.  To be eligible under the program, a landlord must:

  1. apply for a grant or have a property manager or management company apply on behalf of the landlord;
  2. be the sole investor in the property from which rental arrears are sought;
  3. not own more than ten dwelling units from which rental payments are received; and
  4. provide proof of property ownership and a statement under penalty of perjury that the unpaid rent was not paid by the tenant, through an emergency rental assistance program, through the LMP, or through any other means.

Grant eligibility under the program does not constitute an entitlement, but Commerce will disburse funds to eligible landlords within 60 days of application submission while maintaining a waitlist when eligible applications exceed the appropriated funds. Commerce must also report to the appropriate legislative committees by September 30, 2023, on the number of grants issued and total funds provided under the program, the number of eligible applicants who did not receive grants and the total amount of unpaid grants due to lack of funds, and the number of ineligible applicants with reasons for ineligibility. A landlord who receives a grant under the program may not take legal action or pursue a collection action against the tenant for damages or unpaid rent attributable to the same tenancy.

Payment of Rent into Court Registry. The additional, optional notice for landlords to use in nonpayment of rent cases, instructing tenants with unpaid rent to pay into the court registry the amount of rent allegedly owed or file a sworn statement denying that rent is owing, is eliminated.

Residential-Landlord Tenant Act—Miscellaneous. Any oral or written agreement between the landlord and tenant pursuant to an unlawful detainer eviction action in which the tenant

 agrees to pay any amount other than for rent due or rent to retain the tenancy, pay any amount more than statutory judgment limits, or waives any rights afforded to the tenant under the court exercise of judicial discretion in nonpayment of rent cases or under the RLTA is void and unenforceable.

Licensed assisted living facilities, nursing homes, and adult family homes, and registered continuing care retirement communities are exempt from the provisions of the act.

Application to the Manufactured/Mobile Home Landlord-Tenant Act. Provisions relating to the legal representation services mandate for indigent tenants and the eviction summons form are applied to unlawful detainer actions for MHLTA tenancies.

Session Law:

 http://lawfilesext.leg.wa.gov/biennium/2021-22/Pdf/Bills/Session%20Laws/Senate/5160-S2.SL.pdf?q=20210427080859

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