Landlords, Say Hello to Tenants’ COVID Friend: Payment Plans

Update: On July 23, 2020, Governor Inslee extended the residential eviction moratorium until October 15, 2020.

On June 2, 2020, Governor Inslee extended the residential eviction moratorium until August 1, 2020. The City of Seattle has extended its eviction moratorium until December 4, 2020.

Notwithstanding additional local protections (cue Seattle), *non-emergency evictions* are not practical until late Fall 2020, at the earliest, due to notice requirements of the unlawful detainer act. Furthermore, it is a grey area as to what arrears, if any, incurred during the period of COVID-19 could be basis of an unlawful detainer down the road. Such arrears would need to have been first offered in a payment plan, as discussed below.

On *October 15, 2020, Governor Inslee’s statewide moratorium on residential evictions will expire. 

While the proclamation remains in effect, it prohibits “landlords, property owners, and property managers … from treating any unpaid rent or other charges related to a dwelling or parcel of land occupied as a dwelling as an enforceable debt or obligation that is owing or collectable, where such non-payment was as a result of the COVID-19 outbreak and occurred on or after February 29, 2020, the date when a State of Emergency was proclaimed in all counties in Washington State.”

The emergency proclamation suspends most evictions and debt collection for arrears throughout the proclamation’s duration, from February 29, 2020 through *October 15, 2020.  A notable exception, however:  

*This prohibition does not apply to a landlord, property owner, or a property manager who demonstrates by a preponderance of the evidence to a court that the resident was offered, and refused or failed to comply with, a repayment plan that was reasonable based on the individual financial health and other circumstances of that resident.

PROCLAMATION BY THE GOVERNOR AMENDING PROCLAMATIONS 20-05 AND 20-19, 20-19.1 Evictions

There is growing debate in stakeholder circles (tenant’s rights advocates, legal aid, property management, and landlord attorneys) about the implications of payment plans when the eviction moratorium is lifted on *October 15, 2020. Keep in mind the moratorium is not equivalent to rent forgiveness: rather, until later in summer, the moratorium stays the legal consequences for nonpayment of rent.

When *October 15, 2020 arrives, the general consensus of stakeholders is that payment plans should be offered to tenants in arrears who were impacted by COVID-19 before initiating eviction proceedings. In theory this sounds reasonable; however, with regards to practically implementing payment plans in lieu of eviction, key questions remain unanswered, such as:

What does a “reasonable” payment plan look like?

What if a tenant refuses to negotiate a payment plan in good-faith and/or refuses to cooperate with a landlord?

How is a “reasonable” payment plan proven in court, if the tenant fails to comply with the payment plan?

A reasonable payment plan provides clear, specific terms identifying the amount of arrears; the time period the arrears were incurred; and when the arrears are to be repaid, at identified times through identified means. A payment plan is signed and dated by both the tenant and landlord (or the landlord’s agent, such as a property manager).

But what if a tenant is cagey, illusive, or cannot be pinned down to finalize a payment plan? My recommendation to numerous clients still stands: document, document, document.

But what if a tenant is cagey, illusive, or cannot be pinned down to finalize a payment plan? My recommendation to numerous clients still stands: document, document, document. Document your efforts to contact your tenants; document your efforts to propose payment plans; document your tenant’s cagey behavior, non-answers, or downright refusals. Consult your attorney to draft affidavits, in case you need to initiate an unlawful detainer (eviction).

Nonetheless: How is a “reasonable” payment plan proven in court, if the tenant fails to comply with the payment pan? With regards to payment plans stemming from COVID-19 arrears, the short answer is: we are unsure. 

Eventually the courts will see a rush of unlawful detainers, most out of necessity. At this juncture, landlords should brace for prolonged litigation. The days of expedited unlawful detainers are long gone. 2019 legislative reforms, gubernatorial proclamations and urban, populist sentiments put landlords in a tight spot: enforcing their longstanding property rights against politically convenient opposition. 

Do not try the DIY approach: the courts tolerate pro se landlords less and less. Consult your experienced landlord attorney to guide you.

The author is an authority in landlord-tenant law. Tom played both sides of the field, beginning as a Rule 9 with Housing Justice Project and later a landlord attorney with Cutting Law Office, PC. Tom has conducted presentations and CLEs on landlord-tenant law.

If you have any questions concerning this article, COVID-19, or inquires about obtaining my legal services, feel free to contact me at rtl@rtleelaw.attorney. Please remember the above-article does not constitute legal advice, nor does it create an attorney-client relationship.

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