On Friday, the Rental Housing Association and a number of landlords filed suit in King County Superior Court to challenge the City of Seattle’s two eviction-ban ordinances and its ordinance requiring that tenants be offered an installment plan and up to a year to repay back-rent.
This is the second legal challenge against eviction bans that has been filed this month here in Seattle, but there are some important differences between the two. Unlike the first one, which was filed in federal court, this case was filed in the state court system and only alleges violations of state laws and the Washington State Constitution — thus preventing the City of Seattle from having the case removed to federal court and consolidated with the first case. Also, the two cases challenge different legislative and executive actions: the first challenges state and local emergency executive orders banning evictions, as well as the city’s rent-installment-plan ordinance; while the new case challenges no emergency orders, but focuses instead on three ordinances passed by the City Council:
- the “winter evictions” ban passed in early February (before COVID). The Mayor returned it unsigned, calling it “flawed” and predicting it would lead to a protracted legal battle;
- the Council’s extension of the Mayor’s eviction ban for six months past the end of the COVID-19 emergency;
- the rent-installment-plan requirement.
While the case in federal court treads fairly familiar territory in the violations of federal and state law that it alleges (due process, taking without just compensation, impairment of contracts), the new case explores some additional charges specific to state law and the Washington State Constitution (in addition to including most of the ones in the first case). Those include:
Pre-empting state laws. Sometimes state law explicitly prohibits local governments from writing its own laws covering specific topics (e.g. rent control). In other cases, the pre-emption is implicit, and partial: a local government may enact additional protections or restrictions beyond what state law provides, but it may not weaken the protections or restrictions codified in the state law. In this case, the rules for evictions — called “unlawful detainer” in the law — are in state law, along with rules for rental contracts and their enforcement. Those laws provide rights and protections for both landlords and tenants. The lawsuit argues that the city’s eviction bans — both the winter evictions ban and the 6-month extension post-COVID — attempt to rewrite state law and remove protections for landlords’ rights. It further argues that the requirement to offer installment plans conflicts with the rules for repayment of rent and charging interest in state law.
The complaint argues that the City of Seattle intentionally wrote its ordinance to weasel around this problem by offering new forms of “defense” against an eviction proceeding in court, rather than simply banning eviction. But, they argue, that creates all sorts of nonsensical outcomes. For instance, the city’s eviction ban allows “non-payment of rent” to be a defense against eviction; however, state law lists “non-payment of rent” as a just cause for eviction. How can it simultaneously be both a cause and a defense for eviction?
Separation of powers. The lawsuit argues that the eviction bans and installment-plan ordinance try to arrogate for the City Council certain powers that state law gave to the judiciary branch. Specifically, it tries to ordain the outcomes of certain eviction hearings, usurping the state-granted discretion given to judges — and recently enhanced in by the state legislature in legislation that the City Council lobbied hard for — a well as the power of judges to determine appropriate installment plans for repayment of back-rent as they see fit. Similarly, state law grants judges discretion on when to award attorneys’ fees and court costs to a prevailing party, but the City Council’s ordinances prohibit the awarding of attorneys’ fees and court costs for certain eviction proceedings.
Equal protection, and privileges and immunities. Article I section 12 of the Washington State Constitution reads:
No law shall be passed granting to any citizen, class of citizens, or corporation other than municipal, privileges or immunities which upon the
same terms shall not equally belong to all citizens, or corporations.
The complaint alleges that the City Council granted a certain group of people, residential tenants, a special privilege and immunity from state eviction law and procedures without “reasonable ground” after the COVID-19 emergency is terminated. The ordinances also grant tenants the privilege to avoid interest payments on overdue rent obligations, they argue.
Taking of property for private use. The Washington State Constitution (Article I, section 16) forbids the government from taking private property for private uses (in this case, tenants who are allowed to continue inhabiting a property without paying rent and in violation of their rental agreement). The city will undoubtedly counter that its action serves a public good: to prevent a massive wave of evictions and a potentially dramatic increase in the homeless population.
Tailoring the case to state law is an interesting piece of “forum-shopping,” not because the plaintiffs have a better chance in state court than in federal court, but simply because they can fight a battle against the eviction bans on two fronts simultaneously without the two being combined into a single case. Also, it’s worth noting that this case doesn’t challenge any of the restrictions on evictions tied to the COVID-19 emergency, not only because that’s largely a losing battle (there is substantial case history giving governments expansive powers to protect public health and safety during emergencies), but also because it prevents the cases from becoming moot when the emergency declarations end, it could establish a more long-lasting case precedent, and it limits the relevance of simultaneous cases currently being heard in other states and in federal court.
According to the complaint, the plaintiffs intend to ask the court to declare that the three ordinances are invalid and unenforceable, as well as for preliminary and permanent injunctions blocking their enforcement.
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Thank you for this incisive article about this legal challenge to the rent moratorium. Something I have not yet read about is that the original proclamation regarding the rent moratorium, due to rising unemployment after job losses related to the coronarvirus, is that the moratorium was stated to be of a temporary nature. But as the months have progressed, and many who were temporarily unemployed have gone back to work, how is it that the extensions for the rent moratorium keep getting ‘added on’. At some point the ‘temporary’ designation appears to be arbitrary with no real definite end in sight.
Further, does this establishment of rent moratorium bode ill for the future for owners of rental real estate. What if for example another significant virus comes to the U.S. say in 5 years, will there be yet another extended period of time when tenants are told they do not have to pay rent? I’ve also read that many ‘mom and pop landlords’ have or are considering selling their rental properties.
As the author notes, this decreases the number of rental units available, with supply and demand, it is likely that over time, this means that rents will likely go up, which is disadvantageous to renters. The government whether local, state wide or federal should not have this right to arbitrarily impose moratoriums whenever ‘they see fit’. It is injurious to those who own rental real estate.
Just to clarify: it’s not a rent moratorium; it’s an eviction moratorium. Technically the tenants are continuing to accumulate back-rent. But that raises two questions: first, the likelihood that a tenant in arrears will ever be able to repay the full amount; and second, whether it’s the case that after a certain amount of time without receiving rent the financial burden on landlords (who have their own expenses to pay) equates to its own irreparable harm. From the perspective of the landlord’s cash-flow issues, owing rent is very different thing from paying rent.
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