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Impact of E2SSB 5160 upon the Washington Residential Landlord Tenant Act

Posted by Quinn Posner | Jun 10, 2021 | 0 Comments

As most of you are no doubt aware, Governor Inslee signed Engrossed Second Substitute Senate Bill 5160 (E2SSB 5160) on April 22, 2021. This new law makes substantial changes to Washington landlord/tenant as detailed below and ends the moratorium on June 30, 2021. Below you will find the major changes that impact your daily activities as landlords, but in no way describe every single change. Please consult your attorney for more specifics and how they may apply to your tenancies.

Essentially, E2SSB 5160 adds a host of tenant protections. Sadly, the legislature did not see fit to be as kind to landlords. These changes are:

  • For tenants that failed to pay rent that became due between March 1, 2020, and six months following the expiration of the moratorium, a landlord may not engage in the following:
    • Charge late fees
    • Report the nonpayment to a prospective landlord;
    • May not report any filing of an unlawful detainer;
    • May not take adverse action for new tenant applications for nonpayment of rent.
  • Landlords may not consider a tenant's medical status, including COVID, on a permanent basis;
  • Landlords may not ask about medical conditions aside from what is permitted in a reasonable accommodation request; and
  • Violation of the above subjects the landlord to substantial financial penalties.

E2SSB 5160 also changes the course of the nonpayment unlawful detainer process by requiring repayment plans and extends the Eviction Resolution Program. This process is very specific and requires specific forms.

  • For rent accrued and unpaid between March 1, 2020, and six months following the end of the moratorium (currently scheduled for the end of 2021), a landlord must offer the tenant a reasonable repayment plan with monthly payments that do not exceed 1/3 of the normal monthly rent, does not require the first payment for a period of at least 30 days after the plan was offered, is for rent only (no late fees, attorney fees, etc), allows for payments from any source of income, and does not contain certain conditional provisions;
  • The landlord also must proceed Eviction Resolution Program prior to the filing of any unlawful detainer. If the tenant accepts the repayment plan, but later defaults, the landlord may either apply for reimbursement from the landlord mitigation program OR proceed to the unlawful detainer subject to the Eviction Resolution Program, but not both. The ERP contained within E2SSB 5160 is a very detailed process which requires certain notices be served in an attempt to negotiate a repayment plan with the assistance of the local Dispute Resolution Center. These notices must adhere to a specific timeline. At the time the ERP notice is served, a landlord may also serve the 14 day notice to pay or vacate. It is anticipated that the ERP process will take a minimum of 14-28 days. As you can see, the ERP, in combination with the repayment plan requirement, adds additional time before a summons and complaint for unlawful detainer may be filed. Keep in mind that the repayment plan component is not required after six months elapses from the expiration of the moratorium. At that stage, a landlord will only be required to satisfy the ERP.

There have been a few changes to the Landlord Mitigation Fund as well:

  • The fund has been increased to $15,000.00 for rents owed between March 1, 2020 and six months after the expiration of the moratorium;
  • As noted above, if a tenant defaults on a repayment plan and termination of tenancy has not occurred, a landlord may apply to the Landlord Mitigation Fund for up to $15,000.00 in unpaid rents from the same period; If the landlord issues a 14 day notice to pay or vacate, and the tenant vacates, the landlord is not eligible for reimbursement from the fund; and
  • If the landlord accepts the funds, it may not collect any remaining balance.

Right to Counsel:

  • E2SSB 5160 provides for court appointed counsel for indigent tenants facing eviction.

14 Day Notice to Pay or Vacate:

  • Please be aware that this required language for the 14 Day Notice to Pay of Vacate has been amended. It is imperative that you discontinue your current forms and come into compliance with the new language;
  • When a 14 Day Notice to Pay or Vacate is served, a copy of the notice must be provided to the local Dispute Resolution Center (DRC) which is encouraged to contact the local housing justice project. It is a defense to an eviction if the landlord does provide a copy of the notice to the local DRC.

As noted, these are the major changes to your day to day activities as a landlord. There are additional changes to RCW 59.18 and we recommend familiarizing yourself with these requirements by reading the final bill which can be found here by scrolling down and clicking Session Law under Available Documents: https://app.leg.wa.gov/billsummary?BillNumber=5160&Year=2021&Initiative=false

We at NW Landlord Solutions continue to work tirelessly to inform you of many of the changes that have taken place during this last legislative session. That includes an analysis of HB 1236 which will be coming soon. As always, we remain available to you for any needs you may have as clients and friends of NW Landlord Solutions.

This above analysis in no way forms a tenant-client relationship between the reader and NW Landlord Solutions.

About the Author

Quinn Posner

Location: Vancouver, Washington Phone: 360-524-4767 Fax: 360.326.1913 As a former Clark County Deputy Prosecuting Attorney and in-house insurance defense attorney for a large international insurance company, litigation is my passion. That is why I have chosen personal injury and eviction law to focus my practice on.

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