Update: On April 16, 2020, Washington Governor Jay Inslee issued Proclamation 20-19.1 to expand and extend statewide prohibitions regarding residential and commercial tenancy lease enforcement and eviction. The following rules are in effect statewide until June 4, 2020.

Prohibited: Dwelling Tenancy Eviction, Pre-Eviction Activity, Termination, Late Fees, or Imposition of Any Rent Where Occupancy Prevented by COVID-19

Procl. 20-19.1 expands the scope of the prior eviction moratorium to include "any dwelling or parcel of land occupied as a dwelling" (Dwelling) which, according to the Governor's press release, is intended to include not only traditional residences but also transient housing in hotels and motels, "Airbnb" or similar vacation units, RVs, lots/parcels with separately owned motor homes, transitional housing, public lands, camping grounds and seasonal/college housing.

With respect to Dwellings, Procl. 20-19.1 prohibits:

  1. Evictions, pre-eviction activity, eviction notices and terminations. Law enforcement is still prohibited from enforcing eviction writs. The new rule continues to exempt actions involving tenants who create a significant and immediate risk to the health or safety of others.

  2. Imposition of late fees after February 29, 2020.

  3. Charging any rent or other charges "for any period during which the resident's access to, or occupancy of, such dwelling was prevented as a result of the COVID-19 outbreak."

Post 2/29/2020 Rent on Dwelling Tenancies Is Unenforceable -- Unless Landlord Offers a "Reasonable" Repayment Plan That Is Refused or Tenant Fails to Comply With an Accepted Plan

Unpaid rents or other charges "where such non-payment was as a result of the COVID-19 outbreak and occurred on or after February 29, 2020" will not be treated as enforceable debts or collectible obligations, whether by eviction, collection, billing, invoicing, setoff against security deposits or reporting to a credit bureau.

The only exception is where the landlord demonstrates by a preponderance of the evidence to a court that that a 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." The effect of this restriction after the State of Emergency expires is unclear.

Prohibited: Rent Increases on Dwellings and Certain COVID-19 Impacted Commercial Tenancies

  1. Rents for Dwelling tenancies cannot be increased.

  2. Rents for commercial property tenancies cannot be increased if the commercial tenant has been materially impacted by COVID-19 (i.e., either the commercial tenant is personally impacted or its business was declared non-essential and lost staff or customers.)

Update March 22: On March 22, 2020, Oregon Governor Kate Brown issued an executive order that effectively suspends for 90 days all residential evictions based on nonpayment of rent statewide. The order prohibits law enforcement officers from serving notices, orders, or writs relating to the termination of a residential tenancy for nonpayment of rent. Because the sheriff’s office serves eviction summonses and writs of restitution, no residential eviction for nonpayment of rent can proceed during the moratorium. A copy of the order is available here.

Separately, on March 18, 2020, the U.S. Department of Housing and Urban Development announced that the Federal Housing Administration was imposing a moratorium on all foreclosures and evictions for single-family homeowners with FHA-insured mortgages. The moratorium went into effect immediately and lasts for 60 days. A copy of HUD’s announcement is available here.

In the wake of the COVID-19 pandemic, state and local governments throughout the country have enacted emergency measures imposing moratoria on evictions. The following is a summary of emergency orders and proclamations issued this past week in Washington and Oregon affecting evictions and lease terminations.

Washington State Eviction Moratorium Proclamation

On March 18, 2020, Governor Inslee issued Proclamation 20-19 imposing a 30-day statewide eviction moratorium prohibiting residential landlords from issuing any eviction notice based upon non-payment of rent or termination of a tenancy unless the landlord attaches an affidavit attesting that the action is necessary to ensure the health and safety of the tenant or other individuals.

Law enforcement is also prohibited from serving or enforcing orders for non-payment but may continue to enforce eviction orders for waste, nuisance or commission of a crime on the premises.

Additional information on Washington State’s eviction moratorium can be found here.

King County Suspension of Evictions

In a March 17, 2020, letter to King County Presiding Superior Court Judge James Rogers, King County Sheriff Mitzi Johanknecht announced that her office is “temporarily suspending the service and enforcement of evictions until further notice.” The language of the Sheriff’s letter appears to include residential and commercial evictions.

The Sheriff cited concern for the health of commissioned personnel, the promotion of social distancing, and allocation resource priorities as reasons. Sheriff Johanknecht said the policy will remain in effect “until we are confident the threat of COVID-19 has dissipated and we have sufficient resources to resume civil evictions.”

Access to the judicial system will also be a limiting factor in evictions. On March 17, 2020, King County Presiding Judge James Rogers previously stayed enforcement of unlawful detainer cases until March 30, 2020. However, as of the date of this writing, the King County Superior Court has also restricted any “non-emergency” hearings until after April 24, 2020, and cancelled all trials through June 8, 2020.

Additional information on King County’s eviction moratorium can be found here.

Seattle Civil Emergency Order – Moratorium on Small Business Evictions

On March 17, 2020, the City of Seattle issued an Emergency Order imposing an immediate moratorium on evictions and lease terminations of tenancies of any:

  • “Small business,” defined as any business entity, including a sole proprietorship, corporation, partnership, or other legal entity that is owned and operated independently from all other businesses, and that has fifty or fewer employees per establishment or premises; or
  • “Nonprofit corporation.”

The moratorium is effective until the earlier of the termination of the Mayor’s March 3, 2020, Proclamation of Civil Emergency or 60 days from entry of the Order (i.e., May 16, 2020).

During the moratorium:

  • An owner of property shall not evict or terminate the lease or right to possession of any small business or nonprofit tenant.
  • An owner of property cannot charge the small business or nonprofit tenant late fees, interest or other charges due to late payment of rent.
  • An owner of property “shall endeavor to enter into a payment plan, or other workout agreement to assist a distressed small business or nonprofit in rent relief, including but not limited to the deferred payment of rent, discount to rent, or other strategies to address the economic disruption caused by the COVID-19 civil emergency.”
  • A small business or nonprofit tenant may assert as a defense to any eviction for non-payment of rent that it would occur during the moratorium. Courts are also authorized to continue pending evictions to be heard after the moratorium.

Additional information on Seattle’s eviction moratorium on commercial evictions can be found here.

Seattle Civil Emergency Order -- Residential Eviction Moratorium

On March 16, 2020, the City of Seattle issued an Emergency Order (modifying an earlier order by Seattle Mayor Jenny Durkan) imposing an immediate moratorium on residential evictions. The moratorium is in effect until the earlier of the termination of the civil emergency declared in the Mayor’s March 3, 2020, Proclamation of Civil Emergency or 60 days from the effective date of the Order (i.e., May 15, 2020).

During the moratorium, a residential landlord shall not initiate evictions, issue notices of termination or otherwise act on a termination notice, including any action or notice relating to a rental agreement that has expired or will expire during the effective date of the Order. An exception exists where the termination or eviction is based upon actions of a tenant that constitute an imminent threat to the health or safety of tenant’s neighbors, the landlord, or others.

It is a defense to an eviction action that the eviction “will occur during the moratorium” except in cases involving a tenant’s imminent threat to the health and safety of others. In addition, no late fees or other charges due to late payment can be charged during the moratorium.

Additional information on Seattle’s Emergency Order on residential evictions can be found here.

Oregon Eviction Moratorium 

On March 16, 2020, Oregon Supreme Court Chief Justice Martha Walters issued an emergency declaration that effectively paused all eviction proceedings statewide.

Text of the emergency declaration on evictions can be found here.

When an eviction action is filed, the trial court automatically schedules a “first appearance” where the parties attempt to resolve their dispute. If the matter is not resolved, the court schedules a trial. The Chief Justice’s order postpones all first appearances and states that they will be rescheduled at a later time, effectively preventing any eviction actions from proceeding beyond the initial filing.

The order also postpones all trials (for cases where the first appearance has already occurred).

For cases where the first appearance has already occurred, the order allows the landlord to file a motion requiring the tenant to pay rent into court until the trial occurs. The order is effective from March 19, 2020, through March 27, 2020, but states that it might be extended by further order. 

At this time, we believe it will likely be extended. Accordingly, while a landlord can still file an eviction action, for at least the next week (and likely longer), a landlord will not be able to get a court to rule on the eviction action and will not be able to actually evict a tenant.

Multnomah County Eviction Moratorium

On March 17, 2020, Multnomah County issued an executive rule that suspends all eviction hearings until April 30, 2020.

Text of Multnomah County’s executive rule on eviction hearings can be found here.

The rule also imposes a temporary moratorium on all nonpayment of rent residential evictions in which the tenant’s failure to pay rent is due to wage loss from the pandemic. The moratorium is currently in effect until April 30, 2020, but can be extended longer.

In order to rely on the moratorium, a tenant must:

  1. Prove “substantial loss of income, through documentation or other objectively verifiable means” caused by the COVID-19 pandemic and the associated government restrictions; and
  2. Notify his or her landlord on or before the rent due date that the tenant is unable to pay rent due to substantial loss of income as a result of the COVID-19 pandemic. 

A tenant that falls within the moratorium is still responsible for rent payments but is not required to make them until six months after the order expires (i.e., October 30, 2020), and a landlord cannot charge late fees based on the delayed payments.

In short, while no eviction actions will proceed through the court system in Multnomah County until at least April 30, 2020, a landlord can still file an eviction action unless it is based on a residential eviction where the tenant has failed to pay rent because of a COVID-19-related loss of income.

The facts, laws, and regulations regarding COVID-19 are developing rapidly. Since the date of publication, there may be new or additional information not referenced in this advisory. Please consult with your legal counsel for guidance.

DWT will continue to provide up-to-date insights and virtual events regarding COVID-19 concerns. Our most recent insights, as well as information about recorded and upcoming virtual events, are available at www.dwt.com/COVID-19.

This article was originally featured as a real estate advisory on DWT.com on March 20, 2020. Our editors have chosen to feature this article here for its coinciding subject matter.