Covid-19 Crisis Management
The Covid-19 crisis has affected everyone, this office included. Landlords and tenants are confused and understandably worried about how the crisis affects their rights. Many landlords and tenants have reached out asking what their rights are and what, if anything, should be done differently during the Covid-19 crisis. There are no easy answers to these questions as the situation is fluid, unprecedented, and does not have a projected end date.
There is no existing law or experience to draw from to guide us. This leaves landlords, tenants, advocates, lawyers and the courts guessing.
The following is a non-extensive list of common questions with practical analysis and suggestions on how the Covid-19 crisis affects landlord-tenant relationships. This is primarily intended to discuss residential situations. Some of the same analysis may apply to commercial relationships as well. This memo is not intended to convey legal advice, but to assist parties to navigate this difficult situation. If you still have questions or wish to discuss further, you are welcome to reach out to the attorneys here.
Do I still have to pay rent? If I am a landlord may I still collect rent?
Yes. Rent is still due. Notwithstanding various requests, orders and suggestions regarding evictions, the fact is that leases are still in full force and effect. The landlord still has to respond to maintenance requests. The tenant still has to observe the requirements of the lease, including the requirement to pay rent.
The Governor has encouraged landlords and tenants to negotiate payment plans if tenants simply do not have the funds to pay. Some jurisdictions will require that landlords demonstrate they offered a payment plan to tenants before evicting a tenant for non-payment of rent.
May landlords still send a notice to pay or vacate?
No. On March 19, 2020, Governor Inslee issued a proclamation prohibiting residential landlords from serving a notice of default for non-payment of rent until April 17, 2020. Criminal penalties may apply if a landlord or a landlord’s agent willfully violates this order. On April 16, the Governor extended the effect of the proclamation to June 4, 2020, On June 2, the Governor extended the effect of the proclamation to August 1, 2020. The full text of the proclamations and what behavior is prohibited are here:
This does not mean landlords may not document the fact rent is unpaid. The rent is still due. The right of landlords to demand the rent and enforce their rights as property owners is temporarily suspended throughout the State of Washington.
Are landlords required to forgive rent during the crisis?
Landlords are not required to change the requirement that rent be timely paid. The Governor and local jurisdictions are strongly encouraging landlords to offer payment plans to tenants who are unable to pay rent. There are a lot of people who are unable to work as a result of the Covid-19 crisis either because of illness, self-quarantine, layoffs, or business closures. It is recommended that the landlord and the tenant communicate about the situation to work out a payment plan. This may be a requirement for landlords seeking to evict tenants for non-payment of rent when that right is restored.
The landlord may, for example, contact tenants before rent is due, or any time thereafter, and inquire if a payment plan is desired due to the Covid-19 crisis. If the tenant will acknowledge the rent is late and lay out a plan for when the rent will be paid going forward, it will help all parties: the tenant will have some relief from the impending bills and the landlord will know when it will be able to expect the income and budget accordingly. The key in any such discussion is to get a final understanding in writing. Even an e-mail or text message may be sufficient.
It is important that the landlord not "threaten" to evict a tenant for failing to pay rent or work on a payment plan. The landlord is entitled and encouraged by the Governor's proclamation to open a discussion. If the parties cannot come to an agreement the landlord may make record of the attempt but may not punish or threaten to punish the tenant when the state of emergency is over.
May a landlord demand to see proof that late rent is due to Covid-19?
No. While a landlord may ask and a tenant may volunteer this is the reason rent is late, federal health regulations protect individuals from sharing medical records. A landlord who refuses to give a tenant a payment plan due to a suspicion the tenant is malingering is courting a lawsuit, possibly by the Attorney General.
Too, discrimination and ADA regulations continue to apply. A tenant who is sick from Covid-19 or something else may be entitled to a reasonable accommodation. A landlord who elects not to give a protected class of tenants a payment plan may be subject to a housing complaint.
May a tenant refuse to allow an inspection due to fears from Covid-19?
There are situations where a tenant may be able to prohibit the landlord from entering. A tenant who is self-quarantining should clearly and indicate this is the reason for not allowing access. If it would potentially endanger the landlord and anyone else who enters the property, it is reasonable for the tenant to request the entry be rescheduled.
Whether entry goes forward or not, it is strongly recommended that every precaution be made to protect the safety of all parties involved. Parties who enter should wear face masks and use hand-sanitizer upon entry and exiting the premises. Care should be taken to avoid close contact during entry.
May a landlord decline to make repairs due to fears from Covid-19?
No. The landlord has an ongoing duty to keep the premises safe and habitable. If a tenant has a plumbing emergency the landlord still must make arrangements for a professional to address the issue and get it fixed as soon as possible. The same rules apply as in normal circumstances. Both parties have to act reasonably and in good faith while dealing with repairs.
May a landlord evict a tenant who refuses to pay rent?
No. The Governor’s proclamation prohibits landlords from initiating an eviction action against residential tenants for failure to pay rent until August 1, 2020.
In some jurisdictions in Washington—Seattle being the largest—public officials have issued proclamations or emergency orders staying evictions for nonpayment of rent. As of this update, the other cities with eviction moratoriums are Burien, Everett and Kenmore.
The Mayor of Seattle signed an emergency order prohibiting evictions of small businesses and nonprofit companies until June 4, 2020.
The Supreme Court and the Governor have the authority to take these emergency measures. There is a question as to whether municipalities may take these steps, but those questions are moot since they reflect the language of the Governor's proclamations. Landlords who want to challenge the legality of a city emergency order will not only have to worry about that issue but additionally will contend with public opinion and potential backlash. It is likely better in the long run for landlords to proceed carefully and exhaust options to settle with their tenants than to challenge the city.
Can I evict tenants for something other than non-payment of rent?
Yes, as of this writing—but the right to do so is limited to situations where there is a life-threatening emergency. What constitutes an emergency is going to be the subject of judicial scrutiny. It is not considered an emergency that the landlord is unable to pay its mortgage.
Are the courts even open?
Yes, but with restrictions. The Washington State Supreme Court has continued all non-emergency civil matters until April 24, 2020. Some matters may proceed with telephonic hearings. Evictions usually require hearings in person.
Further, each county has imposed rules regarding access to the courthouse. Check with your attorney and the court website before heading to the courthouse.
Will the sheriff enforce an eviction order?
The Governor’s proclamation prohibits local law enforcement from enforcing eviction orders issued solely for non-payment of rent. Evictions for other reason may continue.
Some county sheriffs have imposed additional rules and requirements to protect the health and safety of their deputies. For example, King County Sheriff announced her department would not enforce writs of restitution. The given reason for this announcement is officer safety as there are fears of deputies contracting and spreading the virus. It is not clear that a law enforcement officer may choose which court orders he or she wishes to follow. A writ of restitution issued by the court after an eviction case is a court order requiring the sheriff to restore possession of real property to the owner. If a county sheriff is declining to comply with a lawful court order he or she could be contempt of court. It may be possible to require the sheriff to comply by suing the sheriff. That would take time and be an expensive and unpopular gambit. The chances of success in the short run would be, at best, very low.
This office has obtained several writs of restitution in residential unlawful detainer actions during the Covid-19 crisis. The writs were duly enforced by the county sheriff. It is not impossible to evict a tenant, but it requires special circumstances and a lot more patience than in normal times.
This office will continue to monitor the effects of the Covid-19 crisis and work on our cases to the best of our ability. This summary will continue to be updated as further events and changes are known.
If you have questions you may contact our office. We remain hopeful that that the crisis will abate soon. Stay safe.