There is a lot of confusion on what landlords can and cannot do right now under the current moratorium in Washington to evict a tenant. The simple answer is very little. Whether you have a tenant unable, or refusing, to pay rent, a landlord cannot evict. If the tenant has moved more people into the home without permission, a landlord cannot evict. Under the most recent moratorium (Proclamation 20-19.5), a landlord can only remove a tenant under one of two circumstances.
The first is if the landlord, “(a) attaches an affidavit to the eviction or termination of tenancy notice attesting that the action is necessary to respond to a significant and immediate risk to the health, safety, or property of others created by the resident.” This is vague language that places the burden on the landlord to prove the “significant and immediate risk.” Generally, that will require evidence or testimony from third parties.
The second is if the landlord “provides at least 60 days’ written notice of the property owner’s intent to (i) personally occupy the premises as the owner’s primary residence, or (ii) sell the property. Such a 60-day notice of intent to sell or personally occupy shall be in the form of an affidavit signed under penalty of perjury.” There are no specifics on when the property has to be listed or the listing amount but based on experience with the court, it is expected a “reasonableness” standard would apply. Specifically, what would be a reasonable time for the property to be listed and for how much? The Washington Attorney General’s Office has been following up on these evictions, if they get to the court. Make sure to keep sufficient evidence to support the intention given in the notice (ie. had to do a remodel/make repair, market analysis for price, etc.)
An important factor to understand about the 60-day notice is it is often misunderstood how the 60 days is counted. The Proclamation provides no guidance, so it is best to follow the statutes on a termination of a month-to-month lease. Specifically, RCW 59.18.200 provides, “shall be terminated by written notice …, preceding the end of any of the months or periods of tenancy, given by either party to the other.” In other words, if rent is due on the first of the month, the notice must be provided at least 60 days before the first day of the month (the day of service does not count in calculating 60 days). It is a common mistake to say it is just 60 days and the tenant must vacate.
When this notice is served, it must be served on every tenant who signed the lease by physically handing it to each tenant. If unable to hand it to them, you can use alternative service by providing multiple copies (one for each tenant) to one of the tenants and then you must mail, regular mail, the notice to each tenant in separate envelopes. If unable to get anyone to answer the door, you can post and mail. Under alternative service, you add an extra day. A recommendation is to always serve the notice and mail, even if personally served.
Finally, the current Moratorium is set to expire March 31, 2021. The expectation is it will be continued. If it expires, Federal law will apply regarding evictions. This may change sooner. Recently a case was filed that argues that the Federal law overrides state law thus not allowing a 60-day notice. The question is whether allowing a landlord to terminate to sell or occupy is more than or less than what is allowed by the federal law? If the court decides Federal law controls, this type of termination may not be allowed.
There are many factors to consider when deciding how to proceed when dealing with a tenant. This can be confusing. It is always best to consult with an attorney to decide how to proceed.
Brian J. Hanis
Attorney at Law
Hanis Irvine Prothero, PLLC