Municipal regulation of residential tenancies

April 4, 2022
by

Oskar Rey



Category:

Lodging


It’s no secret that rental housing costs in Washington have risen dramatically in recent years. According to University of Washington Center for Real Estate Research, in the spring of 2009, the average apartment rent in Washington State was $939 and the vacancy rate was 6.3%. By fall 2021, the average rent had risen to $1,547 and the vacancy rate had dropped to 3.6%. Rising housing costs aren’t just an issue in Washington’s largest cities – Kittitas County, for example, also saw an increase in average rent, from $704 in spring 2009 to $1,161 in fall 2021.


The Washington State Legislature, as well as some cities and counties, have chosen to enact tenant protection measures in response to the booming rental market. This blog will examine applicable state provisions on this topic and provide examples of local regulatory efforts through a review of cases involving the City of Seattle in which these regulations have been challenged.


Overview of State Law


State law limits cities and counties in one important respect. In 1981, the legislator preceded the cities (BRF 35.21.830) and counties (RCW 36.01.130) to pass and enforce residential rent control ordinances.


On the other hand, in recent years, the legislator has adopted a number of measures to protect tenants, including:


  • Expulsion for just cause: In 2021, the legislator adopted BRF 59.18.650which requires landlords to specify a reason for refusing to continue a residential tenancy, subject to certain limited exceptions.
  • Management of initial deposits and fees: In 2020, the legislator adopted RCW 59.18.610which provides that a tenant may ask to pay deposits, non-refundable fees and the last month’s rent in installments.
  • A 60-day rent increase notice: In 2019, the legislator modified RCW 59.18.140 to provide 60 days notice of rent increases, and increases may not take effect until the end of the current lease term.
  • A 120-day notice of demolition: In 2019, the legislator modified BRF 59.18.200 to require 120 days notice from tenants in the event of demolition or substantial rehabilitation of premises.
  • Prohibition of discrimination based on income: In 2018, the legislator adopted BRF 59.18.255which prohibits discrimination on the basis of source of income against a tenant who uses a benefit or subsidy to pay his rent.
  • COVID-19 measures: In 2021, the legislator adopted BRF 59.18.620 by BRF 59.18.630, which prohibits late appraisal fees for non-payment of rent due between March 1, 2020 and six months after the expiration of the moratorium on COVID-19 evictions. According to RCW 59.18.630landlords are also required to offer repayment plans to tenants with unpaid rent.


Besides, BRF 59.18.440 allows cities and counties to pass relocation assistance orders for low-income tenants.


Local lease regulations


Some cities have adopted tenant protection measures at the local level. In addition to Seattle, Auburn, Burianand Tacoma have tenant protection rules. Individual landlords or landlord organizations sometimes challenge tenant protection regulations as unconstitutional regulatory catches and violation of due process rights, among others.


In 2019, the Washington Supreme Court clarified the criteria for regulatory levies and due process violations in two cases known as the I am and Yim II. Both yim the cases involved challenges to tenant protection provisions adopted by the city of Seattle. In 2020, the MRSC blogged about the decision written by Roger Wynne, who represented the City of Seattle in yim cases, on the important constitutional issues raised by these cases.


First come rule: Yim v. City of Seattle (Yim I)


The City of Seattle’s “first in” (FIT) rule requires landlords to inform potential tenants of the criteria used to screen potential tenants and the minimum threshold for each criteria. A landlord should note the date and time they receive a complete application from a potential tenant and review the applications in chronological order. The landlord is required to offer the rental unit to the first prospective tenant who meets the selection criteria. The measure aims to tackle potential landlord bias against potential tenants based on factors such as gender, race or disability. It can be found at Seattle City Code 14.08.050and the Seattle Office for Civil Rights has a Ruler FAQ.


The owners challenged the FIT rule in I am, claiming it violated their constitutional rights. They argued that the FIT rule was invalid on its face and should be struck down. The Supreme Court upheld the FIT rule, noting that while there is room for substantial debate as to whether it will pass, it passed a “rational basis” review by the court.


Criminal background check: Yim v. City of Seattle (Yim II)


The City of Seattle, as part of its response to its “housing affordability crisis,” passed an ordinance that prohibits landlords and tenant screening services from requiring disclosure or taking adverse action against a potential tenant based on arrest records or criminal history. Before passing the ordinance, the city considered that criminal background checks disproportionately impact racial minorities and that criminal history is sometimes used as a pretext for racial discrimination. The decree can be viewed at CMS 14.09.025.


Yim II was a Federal Court case in which the Federal Court asked the Washington Supreme Court to clarify the appropriate standard of review for substantive due process claims under Washington law. Washington Supreme Court clarified that the standard of review was the same as the federal standard. The Federal District Court later confirmed the constitutionality of the order in an unreported decision. This decision was appealed to the US Court of Appeals for the Ninth Circuit.


Eviction restrictions and more: Rental Housing Association v. City of Seattle


the Rental Housing Association (RHA) The case, decided by the Washington Court of Appeals on March 21, 2022, involved a challenge to several Seattle orders:


  • The eviction ban in winter: CMS 22.205.080 provides that this is a defense to certain evictions if the eviction would require the tenant to vacate the premises anytime between December 1 and March 1. This provision was adopted in February 2020, before the onset of the COVID-19 pandemic emergency. The Washington Court of Appeals ruled that a winter eviction ban is not preempted by state law and does not violate the constitutional rights of homeowners.
  • The COVID-19 Eviction Ban: In March 2020, Mayor Durkan passed an eviction ordinance that prohibits evictions for non-payment of rent during the civil emergency declared by Mayor Durkan on March 3, 2020, if the tenant submits a statement claiming that the tenant has suffered financial hardship due to the pandemic. The mayor’s eviction moratorium expired on February 28, 2022, and it was unchallenged in the case. However, the Seattle City Council passed CMS 22.205.090, which extends the eviction ban for an additional six months after termination, as “the economic impacts of the COVID-19 emergency are likely to last much longer than the civil emergency itself.” The appeals court ruled that the six-month extension was not anticipated by state law. However, the appeals court found that it violated the procedural rights of landlords because, unlike the mayor’s eviction moratorium, it did not offer landlords the opportunity to challenge the self-certification of financial hardship. of a tenant during the civil emergency.
  • A payment plan ordinance: The city of Seattle also passed an uncodified ordinance payment plan order in May 2020. This happened before the adoption in 2021 of BRF 59.18.630 by the state legislature. The order included a provision that prohibits accrual of interest on rent due during or within one year of the declaration of emergency. The Court of Appeal said that BRF 59.18.630 did not preempt the order on Seattle’s payment plan. It upheld the order generally but struck down a provision that prohibited accrual of interest on rent due during or within a year of the end of the state of civil emergency. RCW 19.52.010 provides that a creditor (such as a landlord) is entitled to interest where the debtor fails to pay the specified amount and the order conflicts with this law.


Conclusion


Whether to adopt tenant protection measures at the local level is a political choice. Although rent control is preempted, cities and counties have the latitude to enact other tenant protection measures that provide additional protections and do not directly conflict with state law. Since such actions may involve the owner’s constitutional rights, they should be carefully considered by legal counsel.


MRSC is a private, nonprofit organization serving local governments in Washington State. Eligible Washington State government agencies can use our free, one-on-one Ask MRSC service to get answers to legal, policy, or financial questions.

About Oskar Rey

Oskar Rey has practiced municipal law since 1995 and served as assistant attorney for the town of Kirkland from 2005 to 2016, where he worked on a wide range of municipal matters, including land use, public records and public works. Oskar is a lifelong resident of Washington and graduated from the University of Washington Law School in 1992.

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Melissa C. Keyes