Governor Jay Inslee signed SB 5600 into law on May 9, 2019. This was a bill that he was long expected to sign to address the homeless issue in the state. Specifically, these amendments to the RLTA were intended to prevent "extraordinary life events", such as a major medical issue, from leaving tenants without housing.
Even as a landlord's attorney, I feel this is a very good change. I've had to evict tenants for nonpayment of rent many times, even as tenants pleaded to the judge for more time due to health concerns. The law, as it stood for years, basically gave a judge no specific authority to treat an unhealthy tenant one month behind on rent any different from a perfectly healthy tenant one year in arrears on rent. This changes that.
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The change that gets the most attention here is extending the notice period for failure to pay rent. It has long been three days to pay rent or vacate in the State of Washington, which has consistently been among the nation's strictest and shortest periods in recent times. RCW 59.12.030(3).
Effective July 28, 2019, a 14-Day Notice to Pay Rent or Vacate must be issued.
As before, under RCW 59.12.040, if the notice is posted and mailed, one additional day will be added to the time period.
Fourteen days was likely used here because most people get paid every two weeks or biweekly. Therefore, some tenants who may be a month behind otherwise on rent may not need to sweat it out or hope the landlord will approve their extension request for more time.
However, because the cure period is naturally extended, landlords should now be discouraged from giving tenants any additional extensions if the rent is late. What could have been a 4-5 week period between sending a rent notice to lockout now becomes 6-7 weeks. Does a landlord risk possibly missing another month of rent? Plus, as will be discussed in detail below, other factors can potentially delay eviction proceedings.
A common misconception: Served notices, whether ones for failure to pay rent, comply with the lease, or otherwise, are NOT public record. Only when the case is filed does a tenant matter become public record. Sending a rent notice, by itself, does not harm a tenant going through a future tenant screening process. The filing of an eviction case can.
The moral of the story here: Landlords should not delay serving notices because tenants "promise to pay" or a tenant pleas: "I don't want a notice served because that affects my ability to get future housing."
Only AFTER proper service of a notice (whether a 14-Day Rent Notice or any other notice under RCW 59.12.030) should landlords consider any option to give any additional, reasonable grace period.
This new law may also lead to landlords taking larger security deposits AND taking a last month's rent deposit. Generally, both deposits can be used to offset any unpaid rent owed.
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A new section to specifically address what may be part of the new 14-Day Rent Notice will also be created.
The definition of "rent" in RCW 59.18.030 will be amended to include ALL periodic and recurring charges, including any utilities. It also includes any deposits due at the beginning of the tenancy ONLY IF an installment payment plan was created and for which the tenant has defaulted.
A 14-Day Rent Notice does NOT include any late fees, damages to the rental unit, legal costs, deposits under the rental agreement (except as noted in the previous sentence), or attorneys' fees.
Therefore, in most cases, landlords must be wise to ensure only back rent owed and utilities are included in the 14-Day Rent Notice. Any other monies owed will generally be in a 10-Day Comply With Lease or Vacate Notice.
[Author's Note: An interesting situation may arise if the lease or rental agreement explicitly treats such late fees as "additional rent."]
Payment must be made by cash, certified check, money order, or other certified funds under the rental agreement. This would be a welcome change to landlords to ensure payments will not bounce or get rejected.
New language will allow tenants to go to the Washington Attorney General's website or dial 2-1-1 for more information. Express language has been added to inform tenants of a right to an interpreter in eviction situations.
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Another new section will be created under the RLTA which explicitly requires a landlord to apply any partial payments to back rent owed.
For example, let's assume a landlord has a one-year lease with a tenant for a Washington property. The tenant has not yet paid his $1,000.00 security deposit (no payment plan) and is behind one month on rent, which is $1,200.00 per month. The landlord properly serves sends a 10-Day Notice for the security deposit and a 14-Day Notice for the rent. The tenant then pays $1,200.00 to the landlord the following week. That entire $1,200.00 MUST go toward the rent owed, and that extinguishes the 14-Day Rent Notice. However, the tenant still owes $1,000.00 under the 10-Day Notice.
[Author's Note: Even under the changes to the RLTA via SB 5600, there is no specific amendment that states the landlord must accept PARTIAL rent payments, whether during the cure period or after the cure period.]
Payment must be made by cash, certified check, money order, or other certified funds under the rental agreement. This would be a welcome change to landlords to ensure payments will not bounce or get rejected. As a reminder, if the landlord wants to recoup any "bounced check" fees, such amounts should generally be addressed under a 10-Day Notice.
New language will allow tenants to go to the Washington Attorney General's website or dial 2-1-1 for more information. Express language has been added to inform tenants of a right to an interpreter in eviction situations.
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SB 5600 makes some stylistic changes to RCW 59.18.410 (i.e. "liable" instead of "guilty", and "tenant" instead of "defendant"), but also makes much-needed clarifications. This applies when a judge or trier of fact has made a ruling at the show cause hearing or an evidentiary hearing/trial.
As before, any judgment will only apply to amounts alleged in the complaint. But now, if evidence shows that the tenant owes any late fees, they may be capped at $75.00.
A bigger change is in judgments:
- Tenants now have five COURT (business) days to pay all monies owed if a judgment is rendered against him/her. The to-be old law only required five calendar days.
- During these five court days, the tenant may pay money into the court registry or to the landlord to satisfy said judgment.
- If the tenant wants his/her tenancy restored under this section, the tenant must also pay another $50.00 for each time the tenant was reinstated after judgment (only applies to the previous rolling 12-month period).
- If the tenant pays the entire judgment amount owed within the five court days and also pays the additional $50.00 (if required), the tenant SHALL be allowed to return to the rental property.
- If the additional $50.00 is not received when it was required, the tenant may lose possession of the rental property.
- The landlord must file a satisfaction of judgment (whether partial or full) with the court if any amounts are received.
This may apply only in cases where no default has been taken against the tenant, and also probably may not apply if the tenant fails to appear for the show cause hearing.
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New subsections of RCW 59.18.410 gives courts more guidelines on whether to stay (delay or stop) eviction proceedings. Judges may make these determinations at a show cause hearing, or on a tenant's motion to stay the writ of restitution before being removed by the sheriff.
The tenant has the burden and must show good cause for the stay. The court must weigh the following factors:
- If the tenant willfully or intentionally failed to pay rent;
- If nonpayment of rent was caused by exigent circumstances out of the tenant's control and such circumstances are unlikely to recur;
- Tenant's ability to timely pay the judgment;
- Tenant's payment history;
- If the tenant was substantially complying otherwise with the rental agreement;
- Hardship on tenant if evicted; AND
- Other notices served on the tenant (and related conduct) in the previous six months.
In any court order:
- The writ cannot be stayed more than 90 days;
- The court must order the entire balance owed repaid within 90 days, whether through payment plan or not. If payment plan exceeds 30 days, the tenant must pay at least one month's rent for each 30-day period.
- The tenant must repay at least one month's rent to the landlord within five court days after the order is issued.
- If date of the order is on or before the 15th of the month, the tenant must remain current with ongoing rental payments as they become due in addition to paying all amounts under the payment plan.
- If the date on the order is after the 15th of the month, the tenant may add the following month's rent payment into the payment plan, but is otherwise responsible for any other additional rent payments according to the rental agreement.
- If the tenant relies on an emergency rental assistance program, whether through a governmental or nonprofit entity, to assist with rental payments, the court will factor that in to allow the tenant proper opportunity to comply.
Regarding the county sheriff in such a scenario:
- The sheriff may serve the writ (i.e. post the writs) as soon as possible but CANNOT execute the writ (lockout) until five court days have passed from issuance of the order.
- The tenant has those five court days to make one month's payment to the landlord.
- The tenant or the tenant's attorney must contact or make good-faith efforts to contact the landlord or landlord's attorney to stay the eviction. The landlord or his attorney could then contact the sheriff to cancel any lockout. If those efforts fail, the tenant or his attorney may file an ex parte motion to stay the writ of restitution, complete with proof of payment and noting good-faith efforts to contact the opposing party. The tenant must then serve a copy of the order on the landlord or landlord's attorney. Such motion must include what immediate or irreparable harm will result if the writ is not stayed. If the order is granted, this will stay the eviction until the next payment on the payment plan, if any.
- However, the tenant must then make his/her next tenant payment according to the payment plan. If the tenant defaults on the any subsequent payment, the landlord or landlord's attorney may serve a 3-Day Notice of Default for Rent and/or Payment Plan Ordered by Court. The three days on this notice are calendar days. The notice may be served in any manner under RCW 59.12.040, but no additional day is given if the notice is posted and mailed.
- If a tenant has been served with three or more rent notices in the previous rolling 12-month period, the tenant cannot seek said relief for a payment plan or otherwise ask to stay the writ of restitution.
[Author's Note: Landlords could be paying more to their attorneys. Can you imagine all the extra paperwork, emails, phone calls, and process server fees that attorneys may have if any of the above circumstances present themselves?]
As expected, these are very tenant-friendly amendments to the RLTA. But the legislature was mindful about not inadvertently rewarding problem tenants. If the tenant has been habitually late on rent payments in the last 12 months, and multiple rent notices prove that, the tenant will likely be unable to delay or stop any eviction proceedings. Landlords are thus encouraged to treat their rental properties like a business and serve rent notices right away, with proof of service for all notices, to possibly preserve their right to evict a problem tenant from their rental unit.
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SB 5600 cleans up RCW 59.18.390 regarding general county sheriff guidelines when posting and executing writs of restitution. It mainly eliminates the situation where a tenant must file a bond to stay the writ; the new procedures were discussed more in detail above.
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Next, SB 5600 completely overhauls the look of the Residential Eviction Summons:
- The tenant is now explicitly told that a written response or notice of appearance must be filed with the court. Any unfiled written responses, including phone calls, emails, or in-person communications, will not count as a response.
- The tenant may dial 2-1-1 to get referred to a volunteer lawyer.
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RCW 59.18.290 will be amended to exclude awarding of attorneys' fees in certain cases:
- No attorneys' fees are awarded in defaults or other cases where the tenant failed to appear;
- If the total rent owed is less than the equivalent of two months' rent (or $1,200.00 if the two months' rent is less).
However, if the tenant successfully filed a motion to stay the writ of restitution, the landlord may recover attorneys' fees as part of any payment plan issued by the court.
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RCW 59.18.055, which addresses alternative service of an eviction summons on a residential tenant, has been clarified.
- The court must file a declaration from the person attempting service that describes all unsuccessful efforts to attempt personal service on the tenant.
- The persona attempting service must have attempted personal service on the tenant(s) at least three times over two different days, and attempts are made at different times of the day.
[Author's Note: This is usually why I highly recommend hiring a professional process server to serve an eviction summons. Professional servers, especially ones who do these regularly, will be familiar with how to properly serve a tenant/defendant and will already have a "Return of Non-Service" or a "Declaration of Due Diligence" form ready to fill out in such cases. In my practice, this is no different than what I already do, and I factor that in when counseling clients of various scenarios.]
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RCW 43.31.605 will be amended to provide landlords with avenues to seek reimbursement from the Washington Department of Commerce. The Department will have forms online for tenants and landlords to fill out.
This is limited to seeking reimbursement from renting to a low-income tenant AND said tenant used a housing subsidy program to help pay for the tenancy. Reimbursements include:
- Up to $1,000.00 for improvements for the property to pass inspection under RCW 59.18.255(1)(a); OR
- Any judgments from an eviction hearing or defaults on payment plans.
Reimbursement requests must total at least $500.00. The maximum amount that the landlord may be reimbursed is $5,000.00.
A low-income tenant is one who makes income not exceeding 80% of the median income for the metro statistical area where the property is located.
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Aaron Wakamatsu is an experienced landlord attorney who handles eviction matters in Clark County, Washington. If you are a landlord or property manager who needs more information about the sweeping changes that SB 5600 made to the Washington RLTA, please call 360-576-5322 to schedule an appointment.
