• Cliff Coulter

Updates in the Residential Landlord-Tenant Act - July 2019

Updated: Sep 3

As of July 28, 2019, updates to the LLTA have changed the eviction process in Washington State. Specifically, ESHB 1440, HB 1462, and SB 5600. Some changes are listed below:

  • Landlords must now provide tenants with a 60-day notice for rent increases.

  • The 3-day notice to pay or vacate notice has become a 14-day notice to pay or vacate notice.

  • Landlords must now provide tenants with a 120-day notice to evict for substantial renovations.

  • Landlords must now attempt personal service at least three times over not less than two days at different times of the day.

  • Landlords can now only get a judgment for attorney’s fees in rare circumstances.

  • Landlords cannot evict for failure to pay fees or other monetary deficiencies other than rent.

  • Tenants liable for unlawful detainer have longer to redeem their tenancy, and only need to pay part of the judgment against them to do so.

  • The court can stay (i.e. delay the implementation of) a writ of restitution for up to 90 days at the court’s discretion if the writ was issued for nonpayment.

  • New summons form

Change: Landlords must now provide tenants with a 60-day notice for rent increases.

Before the update, landlords could raise rent with just 30 days of notice, if the lease term was up.

Now, landlords must give tenants 60 days of notice unless the tenancy is subsidized based on the tenant's income.

What it means for landlords

This is good for tenants. It gives tenants twice as long to either find a new place to live or find ways to make the increased rental payments.

For landlords, on the other hand, the change may impact income. With merely 30 days of notice, many tenants were likely to hold over for a least a month at the higher rent amount, which gave the tenant extra time to find a new place to move.

Nonetheless, if the landlord is adjusting the rent to reflect the market rate and can rent the unit to another tenant for the new price, then this change will not affect the Landlord much if at all.

Change: 3-day notice to pay or vacate now 14-day notice to pay or vacate

RCW 59.12.030(3) used to allow landlords to give with eviction after providing a nonpaying tenant with just three days of notice. There was no required format or language to this notice, just a few minimal requirements, which meant that 3-day pay or vacate notices could look very different from landlord to landlord and still be legally valid.

Moreover, the 3-day pay or vacate notice was based on, “default in the payment of rent,” but the definition of “rent” was unclear. This led cautious landlords to only request payment of rent (and no late fees or utilities) in their 3-day pay or vacate notices, and then request late fees with a 10-day comply or vacate.

The legislature cleared up the “rent” ambiguity by adding a definition (see RCW 59.18.030(25)). Landlords may ask for rent and utilities (and any other monthly recurring charges) in their 14-day pay or vacate notice, but they cannot ask for nonrecurring costs, such as late fees, damages, or attorney’s fees.

That has now changed. A 14-day notice is required for all tenancies falling under the Residential Landlord-Tenant Act, which is almost all residential tenants in Washington State (see RCW 59.18.040 for applicability of RLTA). The new 14-day notice has a different format than the prior 3-day notice, so merely updating your old forms is not enough to be compliant.

Impacts of this change

We now have some clarification on the definition of “rent” so that landlords know what they can and cannot ask for in the "pay or vacate" notice. In addition, we now have a statutorily-prescribed form for the notice. With a statutory form, Landlords do not have to worry about their form giving enough notice.

The bad news is that the surest form of eviction is now going to take that much longer. There has always been very little gray area with non-payment. Waste, nuisance, gang activity, rule violations, and other bases for eviction all involved gray area that requires the court to exercise discretion. The court may question how much loud music late at night is really a nuisance? How many people constitute a gang? If the court has issues as to material fact then they may set it for trial instead of issuing a writ.

On the other hand, when the question is nonpayment then the court asks, "did the tenant pay?" If not, then they’re out.

As such, landlords would typically bring a late payment notice when there were also behavioral issues. Now landlords will have to use a 3-day notice to vacate (for waste, nuisance, criminal activity, etc.) or 10-day notice to comply or vacate (for rules violations) to evict those problem tenants as quickly as possible.

11 days is the increase before the landlord can re-rent the unit to a paying tenant in the event that nonpayment was the only basis for eviction. This will increase the possible judgment amount for which tenants will be liable, and if the tenant or the Landlord Mitigation Program never pay the landlord back, then the landlord will have to internalize the cost of this delay.

The landlords mitigate the impact of this new law? Probably the simplest way is to require tenants to pay last month’s rent upon move-in. However, this may make it hard to market low to middle-income units to tenants who may not have two month’s rent and a damage deposit ready to go. Moreover, this option may not be available in certain jurisdictions such as Seattle, which has limited tenant move-in fees to 10% of the first month’s rent and allows tenants to pay damage deposits in installments.

Change: Landlords must now provide tenants with a 120-day notice to evict for substantial renovations.

Under the old law, landlords could provide month-to-month tenants with just 20 days of notice to move out if the landlord planned to substantially renovate the building.

However, the Washington legislature has added a new section to RCW 59.18.200 to require landlords to provide tenants with 120 days of notice if they plan to substantially renovate. This is likely due to the widely-publicized Tiki Apartment debacle where a property owner attempted to force an entire apartment building of tenants to move out with just 20 days of notice to perform substantial renovations.

What it means for landlords

This law is great for tenants because it allows them more time to find a new place to live.

The main negative impact of this law for landlords is that landlords may end up having longer vacancies before a renovation. That’s because tenants will get more warning before the renovation, and may find a new residence well ahead of the scheduled renovation. If the landlord can begin the renovation as soon as the tenant moves out, this shouldn’t be a problem. However, if a landlord is emptying an entire apartment building or otherwise can’t move up the renovation date based on when the tenant moves out, then this change could cause landlords to lose some rent in the interim.

Additionally, there is an ambiguity in the law that may subtly impact the effect of this law depending on how courts interpret it. Before the new language, landlords would usually only be able to evict tenants for renovations if the tenants were at the end of their lease term using a 20-day notice. However, if a tenant had just signed a lease and was not yet month-to-month, then the landlord could not evict until the lease term had run its course (usually a year after signing).

The new law could conceivably be read to mean that, even if the term hasn’t run its course, landlords can still evict tenants to perform substantial renovations with 120 days of notice. Is this the most natural reading of the new language? Perhaps not. But there is a chance that the courts will interpret the law that way. If they did so, this may make it easier in certain situations for landlords to move out an entire building of tenants to perform extensive renovations.

Change: Landlords must now attempt personal service at least three times over not less than two days at different times of day

Under the old version of RCW 58.18.055, landlords just needed to “exercise due diligence” in attempting personal service. “Due diligence” did not have a set definition, so typically a landlord would just try personal service once, and if nobody was home, then the landlord would post and mail the notice.

Under the new law, due diligence requires that a landlord “attempt[] personal service at least three times over not less than two days and at different times of the day.” Presumably, if a landlord fails to exercise this new level of due diligence when serving a prelawsuit unlawful detainer notice, then service is not effective. See Truly v. Heuft, 138 Wn. App. 913 (2007) (holding that strict compliance with “time and manner” requirements in service of summons and complaint is jurisdictional).

What it means for landlords

The likely impacts of this change are fairly straightforward—landlords will likely have to expend more time, or money, or both in serving prelawsuit unlawful detainer notices personally rather than by posting and mailing. As landlords and their attorneys are adapting to this change, tenant attorneys will probably be able to throw some evictions out for inadequate service.

Change: Landlords can now only get a judgment for attorney’s fees in rare circumstances

Under the old version of RCW 59.18.290, landlords could get a judgment in the full amount of “reasonable” attorney’s fees just about any time they succeeded in an unlawful detainer action.

Under the new version of RCW 59.18.290(3), landlords can only get attorney’s fees from the tenant if neither of the following conditions apply:

If the judgment for possession is entered after the tenant failed to appear; or If the total amount of rent awarded in the judgment for rent is equal to or less than two months of the tenant’s monthly contract rent or one thousand two hundred dollars, whichever is greater.

In other words, the only time a landlord can get attorney’s fees is if the landlord wins at the show cause hearing, and the tenant is more than two months delinquent on their rent. So, if a landlord wins a default judgment (usually at least $500+ in attorney’s fees, process server, and filing fees) the court isn’t allowed to award any attorney’s fees to the landlord under the first condition above.

Likewise, if a landlord prosecutes an eviction to completion less than two months after the tenant’s default, then the court cannot award any attorney’s fees for the show cause hearing ($750+ of attorney’s fees, process server, and filing fees).

What it means for landlords

While it sounds bad that landlords can’t obtain a judgment for attorney’s fees in most cases, this honestly may not make much difference practically speaking. That’s because most of the time landlords are not able to recover attorney’s fees even when the landlord has a judgment because either the tenant doesn’t have the money, or the cost of pursuing collection is prohibitive.

However, if you have a way of recovering from the tenant (like a big damage deposit) or from the Landlord Mitigation Program (i.e., your tenant is getting a subsidy) then this law could be very damaging.

Change: Landlords cannot evict for failure to pay fees or other monetary deficiencies other than rent.

In SB 5600, the legislature added a new section to RCW 59.18 that reads:

Except as provided in RCW 59.18.410, the tenant’s right to possession of the premises may not be conditioned on a tenant’s payment or satisfaction of any monetary amount other than rent. However, this does not foreclose a landlord from pursuing other lawful remedies to collect late payments, legal costs, or other fees, including attorneys’ fees.

In other words, unpaid late fees, damages, and other fees cannot be the sole basis for an eviction.

What it means for landlords

We think there actually could be some fairly important policy implications from this change. Essentially, this clause makes it impossible for landlords to evict based solely on unpaid fines assessed under the lease. This has serious implications depending on how your lease is written.

For example, imagine your lease says, “tenants with dogs are subject to a $500 fee.” What happens when a tenant gets a dog and doesn’t pay the $500 fee? Arguably the landlord can’t evict, since having a dog isn’t strictly against the rules and the fee is a “monetary amount other than rent.”

However, if the lease was worded slightly differently such that having a dog is against the rules unless a fee has been paid, then a landlord should be able to evict based on a violation of the lease using a 10-day comply or vacate notice. For example, imagine the lease said, “tenant is not allowed to have a dog on premises unless tenant first pays a $500 non-refundable fee.” In this case, the landlord could arguably evict using a 10-day notice to comply or vacate because the tenant would be violating the terms of the lease by having a dog, not just by failing to pay a fee.

Would the court appreciate this nuance and allow a landlord to go forward with a 10-day comply or vacate notice in this context? We don’t know. This is one of the many untested questions that Washington’s new eviction laws present.

You probably noticed that the above clause still leaves open the option of, “pursuing other lawful remedies to collect late payments, legal costs, or other fees, including attorneys’ fees.” What does that mean? It means basically that you can sue in small claims or civil court to recoup your fees. The downside is that doing this will be time-consuming or expensive (or both!) and it will likely also harm your relationship with a tenant you’re stuck with.

So, what’s the absolute safest way to avoid the impact of this new law? Probably to take out all the fees in your lease and make them lease violations instead. If you used to have a pet fee, or a parking fee, or a noise violation fee, now you should just make each of those things violations of the lease instead, with no monetary assessment for violating them. For example, write: “no pets whatsoever on the premises,” “no parking outside your space,” and “no loud noise after 10 pm.” If a tenant violates these restrictions, that’s a lease violation, not a “monetary deficiency other than rent,” so you can use a 10-day comply or vacate to evict if the tenant fails to comply.

Change: Tenants liable for unlawful detainer have longer to redeem their tenancy, and only need to pay part of the judgment against them to do so.

For many years, evicted tenants had the right to pay the full judgment to the landlord or court to retain possession of the premises. This right was based on several different RCWs, some of which have now been changed, some of which haven’t. Overall, it is unclear whether, and to what extent, tenants still have a right of redemption, as I will explain. Warning: this gets a little technical and boring.

Under the old version of RCW 59.18.390, tenants who were evicted for any reason other than drug-related activity at the premises could present a bond to the landlord or court for the full judgment amount (usually consisting of rent, fees, court costs, attorney’s fees, and damages) and the tenant could stay (i.e. delay the implementation of) the writ of restitution for as long as the tenant continued furnishing monthly rent on time. Tenants had three days to provide this bond.

RCW 59.12.100 echoed much of the same language included in RCW 59.18.390, but left out the part about the bond does not apply to tenants who had engaged in drug-related activity.

RCW 59.18.380 mentions a similar bonding option to those mentioned in RCW 59.18.390 and RCW 59.12.100, but states that this bonding option only applies in evictions based on nonpayment, not all evictions.

Similarly, the old version of RCW 59.18.410 provided that tenants (or their subtenants, mortgagees, or anyone with an interest in the property) who were evicted for nonpayment could furnish the full judgment amount (usually consisting of rent, fees, court costs, attorney’s fees, and damages) within five days after final judgment, at which point the judgment would be deemed satisfied and the tenant restored to possession of the premises. Paying under this statute doesn’t just stay the writ; it satisfied the judgment and makes the writ go away completely. This seemed to obviate the bonding option included in RCW 59.18.380, RCW 59.18.390, and RCW 59.12.100.

Now, the legislature has deleted the above-mentioned section of RCW 59.18.390, but not the similar sections in RCW 59.12.100 or RCW 59.12.380. Therefore, tenants still seem to have the old option of furnishing a bond for the full judgment within three days to stay the writ of restitution.

More importantly, the legislature also drastically rewrote RCW 59.18.410. RCW 59.18.410(2) now provides that a tenant evicted for nonpayment can satisfy the whole judgment by paying the following to the landlord within five court days of the judgment: rent, up to $75 of fees under the lease, court costs, and attorney’s fees (if awarded). Notice that the tenant does not have to pay other damages or fees under the lease exceeding $75 to satisfy the judgment.

What it means for landlords

RCW 59.18.410’s new $75 cap on fees presents two glaring vulnerabilities for landlords. First, late fees alone are often well more than $75. Add fees for a bounced check, parking fines, or other fees, and a landlord could be out hundreds of dollars due to this $75 cap.

Second, this change further disincentivizes landlords from using nonpayment as the sole reason for eviction in situations where tenants have physically damaged the premises. Before passing the new laws, landlords would commonly pursue an eviction solely based on nonpayment (because it was the fastest and easiest), and then ask the court for an award of money damages for damage to property. However, if a landlord were to use nonpayment as the sole reason for eviction without alleging waste, nuisance, or a lease violation, then the tenant could simply pay back rent, up to $75 of fees under the lease, court costs, and attorney’s fees (if awarded) and the landlord will forever lose the right to recover for the property damage.

Is this likely to affect the average landlord’s bottom line? Probably not. Most of the time, tenants who are evicted for nonpayment don’t have the means to pay their delinquent rent, court costs, or attorney’s fees as required under RCW 59.18.410, so it’s unlikely that many tenants will even exercise this option.

Moreover, if a month-to-month tenant were to exercise this option, the landlord could ostensibly still evict that tenant based on a 20-day notice to terminate under RCW 59.18.200 in many cases, so that may further limit the realistic application of this extended right of redemption.

So, what is the best way to mitigate the impact of this law? As a matter of best practice, landlords and their attorneys should always list every basis for unlawful detainer that’s applicable rather than just for nonpayment, as was common practice before this change in the law. This should prevent landlords from losing the right to recover for property damage and other fees that constitute a violation of the lease because the tenant will have been evicted for something other than nonpayment, and therefore won’t be able to exercise the right of redemption that RCW 59.18.410(2) now provides.

Finally, RCW 59.12.100 and RCW 59.12.380’s three-day bonding options do seem to survive this new legislation (if only due to the legislature forgetting to amend them). However, it’s hard to imagine a scenario where a tenant would choose to pursue this option instead of the option presented by RCW 59.18.410. It was rare to see tenants bond the judgment amount before—you probably won’t ever see it now.

Change: The court can stay (i.e. delay the implementation of) a writ of restitution for up to 90 days if the writ was issued for nonpayment.

Under the old law, the court did not have the discretion to stay the writ of restitution for any reason.

However, under RCW 59.18.410(3), the court now has broad discretion to stay the writ of restitution if the eviction was based on nonpayment of rent. The new provision lists various factors for the court to consider in making its determination about whether to stay the writ. The gist of these factors is that, if this was the tenant’s first time, or there were extenuating circumstances that caused the delinquency in rent, the court should consider staying the writ of restitution for up to 90 days.

The only real caveat to the court’s power to stay the writ is that the tenant must furnish a full month’s rent within five court days of the judgment date: “Within any payment plan ordered by the court, the court shall require the tenant to pay to the landlord or the court one month’s rent within five court days of issuance of the order.”

What it means for landlords

It’s hard to see where this new provision fits in. As described above, RCW 59.18.410(2) allows tenants evicted for nonpayment to redeem their tenancy by paying rent, up to $75 of fees under the lease, court costs, and attorney’s fees (if awarded) all within five court days of the judgment. As we also covered above, RCW 59.18.290(3) makes it difficult for landlords to get a judgment for attorney’s fees, so most of the time all a tenant will have to pay to redeem their tenancy under RCW 59.18.410(2) is delinquent rent, $75 in fees, and court costs (probably $200 or so).

In contrast, RCW 59.18.410(3) allows a judge the discretion to stay the writ of restitution for up to 90 days, but only if the tenant pays a full month’s rent within five court days of the judgment. If the tenant only owes a month of rent anyway, there’s only a ~$275 difference between the cost of a stay of the writ under RCW 59.18.410(3) (which is like being on probation) and complete redemption of the tenancy under RCW 59.18.410(2) (which is like being exonerated).

For this reason, it seems like the only time it would be economically smart for a tenant to ask for a stay of the writ of restitution is if they owe multiple months of rent and attorney’s fees. But in that situation, the factors the court is supposed to consider in granting a stay of the writ are less likely to apply (i.e., the tenant’s “payment history” would be bad, and the tenant’s “ability to timely pay the judgment” would be even more in question). So, this is a bit of a catch-22.

Overall, we don’t expect to see courts stay the writ of restitution under RCW 59.18.410(3) very often. When they do, it will probably be in unusual situations.

Change: New summons form

The new Summons form has been reworked to make it more detailed and straightforward for tenants.

What it means for landlords

There are two big impacts that may occur. First, lots of landlord-tenant attorneys are probably going to make the mistake of using the old summons instead of the new summons, not realizing that the law has changed. This will likely provide the Tenant with a defense to eviction and the case will likely be dismissed under Truly v. Heuft, 138 Wn. App. 913 (2007), and the attorney will need to serve the summons and complaint again. This will certainly cost their client additional time and possibly money.


Second, tenants will probably respond to the summons and complaint at a higher rate than they did before because tenants now have clearer instructions. This will likely mean more show cause hearings (rather than default victories), which is likely to cost landlords more money per eviction, on average.

What's my take?

The new law is pro-tenant for the most part.

This has some positives. Now there is a clear definition of rent and the summons has been updated to be more clear for tenants. Furthermore, the 120-day notice for substantial rehabilitation and 60-day notice for rent increases seem reasonable for most landlords. However, they cost a little additional money. The balance is between fairness and costs.

Tenants will no longer be responsible for attorney’s fees in most cases, even if found liable for unlawful detainer; tenants now have multiple chances to regain their tenancy and stay the writ of restitution even if they do not pay their rent; and tenants will no longer have to pay fees (late fees, pet fees, etc.) even if they agreed to pay them in their lease, without further civil court proceedings.

Landlords are typically not motivated to evict tenants. For example, it often costs landlords $750+ in attorney’s fees and court costs to evict. They also lose at least a month of rent while they market and look for a new tenant. If the rental needs work done after the tenancy, that may cost the landlord anywhere between a few thousand for paint and carpets, to tens of thousands for a kitchen remodel, trim-work, and other improvements. In sum, an eviction will usually cost the landlord somewhere between $1,200-4,000, and a lot of time. Landlords don’t just do it for the exercise.

However, the legislature has mandated a 120-day notice to tenants where their landlords evicted them to renovate their buildings and charge more rent to higher-end tenants. This is the only exception we have seen.

The new laws could have some unintended consequences for tenants with the added pressure on Landlords. But there were some positives,

Nonetheless the new laws may force landlords to take on costs incurred unfairly when dealing with irresponsible or insolvent tenants.

  • Facebook Social Icon
  • Twitter Social Icon
  • LinkedIn Social Icon

2005 SE 192ND AVE, SUITE 200 

CAMAS, WA 98607

 

© 2020 by The Cliff Coulter Law Firm PLLC | All rights reserved. Use of www.CliffCoulter.com is subject to our Disclaimer Terms of Service | Privacy Policy