Changes to Washington Landlord Tenant Law - SB 5160

Washington State is making several changes to the law as a result of the passing of Senate Bill 5160 (“SB 5160”). These changes went into effect upon its passing on April 22, 2021. Many of the changes, however, do not affect operations until Governor Inslee’s moratorium expires on June 30, 2021. SB 5160 is designed as an off-ramp for the moratoria, creating transitional rules that ease the limitations on landlord rights but also creating new restrictions. The bill creates new tenant protections, provides legal representation for indigent tenants in eviction cases, establishes an eviction resolution pilot program for nonpayment of rent cases statewide, and creates rental assistance programs.

This legislative update below highlights the major changes to landlord-tenant law in SB 5160 but is not a substitute for a full review of the bill.

1. Tenant Protections

For any rent, fees, or other charges assessed to a tenant that became due between March 1, 2020, and December 31, 2021, the following rules apply:

• A landlord is prohibited from:
  • imposing late fees on the debt;
  • reporting the delinquency or an unlawful detainer based upon the debt to a prospective landlord; and
  • inquiring about, considering, or requiring disclosure of a tenant’s or prospective tenant’s medical records or history, unless it is necessary to evaluate a reasonable accommodation or modification request.
• A prospective landlord is prohibited from:
  • taking adverse action based on a prospective tenant’s nonpayment;
  • denying, discouraging application for, or otherwise making unavailable a rental based on a tenant’s or prospective tenant’s medical history, including their prior or current exposure or infection to the COVID-19 virus; 
  • inquiring about, considering, or requiring disclosure of a tenant’s or prospective tenant’s medical records or history, unless it is necessary to evaluate a reasonable accommodation or modification request; 

Violations of these rules expose landlords to civil liability of up to two and one-half times the monthly rent, court costs, and reasonable attorneys’ fees.

2. Repayment Plans

For any unpaid rent accrued between March 1, 2020, and the later of December 31, 2021 or the end of the public health emergency, landlords are required to offer repayment plans as follows:

• A landlord must offer the tenant a reasonable schedule for repayment of the unpaid rent that does not exceed monthly payment equal to one-third of the monthly rental charges during the period of accrued debt (1/3 of the monthly rental charges is the maximum but the plan must still be “reasonable” (which is not defined)).  
• If a tenant fails to accept the offer of the reasonable repayment plan within 14 days of the offer, landlord may proceed with an unlawful detainer action, subject to requirements of the new Eviction Resolution Pilot Program (addressed below).
• If the tenant defaults on any rent owed under a repayment plan, the landlord may apply for reimbursement from the landlord mitigation program or proceed with an unlawful detainer action, subject to requirements of the Eviction Resolution Pilot Program.
• The court must consider the tenant’s circumstances, including decreased income or increased expenses due to COVID-19, and the repayment plan terms offered during any unlawful detainer proceeding.
• Repayment plans:
  • must commence no less than 30 days after the repayment plan is offered;
  • cover rent only; they may not include late fees, attorneys’ fees, or any other fees and charges;
  • shall allow for payments from any source of income or from pledges by nonprofit organizations, churches, religious institutions, or governmental entities; and
  • May only address repayment of rent; they may not include other provisions or conditions or waivers.
  • It is a defense to an eviction that the landlord did not offer a repayment plan as described above.

It is noteworthy that the protected period of debt is tied to the later of the eviction moratorium or the public health emergency. Consequently, if either are extended beyond June 30, 2021, then the protected period of debt will also be extended.

3. Eviction Resolution Program

The Eviction Resolution Pilot Program (ERP) was mandated and now applies to all counties in the state of Washington. In accordance with the program, new notices must be sent before filing an unlawful detainer action and mediation may be required.

Prior to filing an unlawful detainer action for nonpayment of rent, landlord must provide notice to the tenant informing them of the ERP along with a 14-day termination notice for nonpayment. The landlord must retain proof of service or mailing of the additional notice.

The ERP notice must include the following information:

• Contact information for the local dispute resolution center;
• Contact information for the county's housing justice project or, if none, a statewide organization providing housing advocacy services for low-income residents;
• The following statement: "The Washington state office of the attorney general has this notice in multiple languages on its website. You will also find information there on how to find a lawyer or advocate at low or no cost and any available resources to help you pay your rent. Alternatively, you may find additional information to help you at http://www.washingtonlawhelp.org";
• The name and contact information of the landlord, the landlord's attorney, if any, and the tenant; and
• The following statement: "Failure to respond to this notice within 14 days may result in the filing of a summons and complaint for an unlawful detainer action with the court.”

At the time of service or mailing of the pay or vacate notice and ERP notice, a landlord must also send copies of these notices to the local dispute resolution center serving the area where the property is located.

Before an unlawful detainer action for nonpayment of rent may be heard by the court, a landlord must secure a certification of participation with the ERP program by the dispute resolution center.

The ERP requirements will expire on July 1, 2023 unless renewed.

4. Landlord Mitigation Fund

The Landlord Mitigation Fund was re-enacted and amended to address the debt incurred during the eviction moratoria. Subject to availability, the fund is set up to reimburse landlords for certain improvements, damages, unpaid rent and unpaid utilities. A new provision allows for claims related to unpaid rent accrued from March 1, 2020 through December 31, 2021 in the amount of:

• Up to $15,000 for tenants who are low-income, limited resourced, or experiencing hardship, voluntarily vacated, or abandoned the tenancy.
• Up to $15,000 in remaining unpaid rent if tenant defaults on a repayment plan (discussed above), provided the tenancy has not been terminated at the time of reimbursement.

Landlords are ineligible for reimbursement through the Fund if the tenant vacated the tenancy because of an unlawful detainer action for nonpayment. Further, a landlord in receipt of reimbursement is prohibited from taking legal action against the tenant for damages or any remaining unpaid rent accrued between March 1, 2020, and six months following the expiration of the eviction moratorium attributable to the same tenancy; or pursuing collection, or authorizing another entity to pursue collection on the landlord's behalf, of a judgment against the tenant for damages or any remaining unpaid rent accrued between March 1, 2020, and six months following the expiration of the eviction moratorium attributable to the same tenancy. 

5. Right to Counsel

Subject to availability, the court must appoint an attorney for an indigent tenant in an unlawful detainer proceeding. Notice of the right to counsel and contact information must be provided to the tenant on the eviction summons.

6. 14- Day Notice to Pay or Vacate

The 14-day Notice to Pay or Vacate has been updated. Once issuing this type of notice is allowed, and prior to the issuing of the notice, landlords should be sure that their forms have been updated to comply with the requirements of SB 5160.

Until the ERP Program expires (July 1, 2023), landlords will be required to begin sending a copy of any 14-day notice to the dispute resolution center located within or serving the county in which the dwelling unit is located. Failure to send a copy of the 14-day notice will be a defense to an eviction.

7. Summons for Unlawful Detainer

The unlawful detainer mandatory summons format has been updated. The old version should no longer be used. As previously mentioned, the updated summons includes information on the right to counsel and additional resources for tenants.

8. Other Tenant Protections in Unlawful Detainer Actions

SB 5160 also places limits on certain agreements between landlords and tenants. In an unlawful detainer case, there can be no agreement waiving the tenant’s rights to apply payments in the lawful order or to condition occupancy on a payment of items other than rent or other statutory judgment limits. It also prohibits the waiver of rights guaranteed to tenants under the Landlord-Tenant Act.

This article is not intended as legal advice. Please obtain advice of an attorney for any policy change or decisions regarding residential and commercial Landlord-Tenant matters.