The Fastest (and only) Way to Evict a Free-Riding Tenant
/By: Whitny Norton and Tyler O’Brien
Washington Landlord Tenant Law has grown increasingly complex. The following explanation: (1) only applies to the extremely specific circumstances described below; (2) is a general explanation and does not include details regarding how to comply with very important and required notice requirements. Landlords and property managers should always consult a lawyer before proceeding with any action.
In addition: this path only works in counties which have fully implemented an Eviction Resolution Program (“ERP”) and a Rental Assistance Program (“RAP”). Consult a lawyer or your local housing authority to determine whether an ERP and RAP exist in your county.
I. The Free-Rider Issue
Many people were disadvantaged by the COVID-19 pandemic and understandably required protection from eviction; additionally, many tenants are now working hard to repay the defaulted rent they accrued during the eviction moratorium. At the same time, there are some people who were practically unaffected by COVID-19, did not fall ill, did not lose their job, have not paid rent since January of 2020, and appear to never intend to pay rent again. The eviction moratorium left Landlord’s hamstrung, with no way of evicting these bad-faith tenants. Now that the moratorium is over, many Landlords are asking how they can finally start the eviction process.
Before even considering pursuing eviction, Landlords need to be aware of numerous laws, policies, and governor’s proclamations that control evictions in Washington. These include:
· WA Governor’s Proclamation 20-05– COVID State of Emergency
· WA Governor’s Proclamation 21-09– Eviction Moratorium “Bridge”
· The WA Residential Landlord – Tenant Act (RCW Chapter 59.18)
· Engrossed Substitute House Bill 1236 (“HB 1236”)
· Engrossed Second Substitute Senate Bill 5160 (“SB 5160”)
· Various Orders by the Center for Disease Control
· Washington State Supreme Court Standing Order issued September 9, 2020
· Any Local Standing Orders
II. Evicting a Tenant for Defaulted Rent Accrued February 29, 2020 through July 31, 2021
As a general outline, the process to evicting the free-riding tenant can be broken into four steps:
STEP 1: Offer a Reasonable Payment Plan
For all defaulted rent accrued between February 29, 2020, and, at least, March 30, 2022 (technically the later of the end of the state of emergency or 6 months past the end of the eviction moratorium), Landlords must offer a “reasonable” repayment plan, prior to giving any notice to evict. HB 5160. Reasonable payment plans cannot impose a monthly payment greater than one-third of the monthly rental charges during the period in which the debt was accrued. For example:
· If the tenant was to pay $900/month when they failed to pay, the repayment plan cannot ask them to pay more than $300/month (in addition to their current rent).
Reasonable repayment plans:
· Cannot require payment until 30 days after the plan is offered to the tenant.
· Must cover rent only and not any late fees, attorneys' fees, or other fees.
· Cannot include provisions or be conditioned on: compliance with the rental agreement; payment of costs of litigation; a requirement that the tenant apply for government benefits; or any waiver of a tenant's rights to notice.
1. Wait for the Tenant to Reject or Breach the Repayment Plan
After offering a reasonable repayment plan, the landlord can send the tenant a notice of eviction, subject to the ERP notice requirements (described below), if:
· The tenant fails to accept the plan within 14 days; or
· The tenant fails to pay rent owed under the payment plan.
If the tenant accepts the repayment plan, but later defaults, the landlord may either apply for reimbursement from the landlord mitigation program OR proceed with an eviction (subject to the ERP requirement).
2. Send an Eviction Notice AND an Eviction Resolution Program Notice
Landlords must provide a notice to a tenant informing them of the eviction resolution pilot program (“ERP”) in addition to providing the standard notice required by RCW 59.12.030(3), 14 days prior to filing an unlawful detainer action. If the tenant chooses to engage in ERP the landlord must complete the ERP process before evicting. ERP was created by SB 5160 and is a very detailed process which requires certain notices to be served in an attempt to negotiate a repayment plan through a local Dispute Resolution Center.
Declaration of Service Mailing: At the time of service or mailing of the pay or vacate notice and ERP notice to the tenant, a landlord must also send copies of these notices to the local dispute resolution center serving the area where the property is located.
3. Proceed with Eviction
ERP Certification: A landlord must secure a certification of participation with the eviction resolution program by the appropriate dispute resolution center before an unlawful detainer action for nonpayment of rent may be heard by the court.
III. Your Fastest Route to Eviction May be a ‘Mere’ 28 Days Away
IF a tenant fails to accept a reasonable payment plan after 14 days and then chooses not to engage ERP within 14 days of notice, AND if a Landlord sends ALL notices correctly, then an unlawful detainer action could be commenced after 28 days. If a tenant engages in the ERP process, it could add on an additional 14-28 days.
IV. The MAJOR CAVEAT – Does your county have ERP and RAP?
Unfortunately, most landlords cannot even take advantage of this process, because doing so requires there to be a “fully implemented” ERP and RAP program in their county. Whether an ERP or RAP program has been “fully implemented” is a question that is proving so complicated as to deserve its own blog post.
Can I pursue this path in my county?
What about defaulted rent that is accrued after July 31st?
What fees can I charge tenants for defaulted rent that accrued during COVID?
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