Is there a ‘loophole’ in WA’s eviction moratorium? An ousted family issues a warning
Michelle McShane was headed through Montana when I reached her by phone.
A day earlier, she had driven away from her family’s rental home in Fife — for the last time — and headed to Kansas, where she has family and hopes for a fresh start.
McShane wasn’t alone; her husband, 2-year-old twins and 2-week old infant, who was born prematurely in mid-August, joined the 35-year-old on the cross-country journey.
It’s a stressful relocation, and one McShane said she never wanted or expected. Her newborn is just out of the neonatal intensive care unit. McShane said worrying about housing is the last thing she needs right now.
The uncertainty began two months ago when she was pregnant, McShane recalled.
In late-June she returned home with her husband from grocery shopping to find a 60-day notice to vacate stuck to their front door.
It upended everything.
At the time, they hadn’t paid rent since March, shortly after Governor Jay Inslee’s stay home order. That’s when McShane’s husband stopped working to help keep his family safe, she said.
The difficult decision put the family among a staggering number of vulnerable Washington renters who have come to rely on the state’s eviction moratorium since it was first put in place.
“As soon as my son was out of the NICU, we packed up our things and left,” McShane said Friday, her exhaustion evident even with the sound of the freeway passing behind her.
“We thought we were protected under the (state’s) eviction moratorium,” McShane explained, “but we weren’t.”
McShane and her family aren’t alone in their surprise or confusion, according to eviction lawyers working in Pierce and King counties.
Many clients they’ve recently counseled have been caught off guard by a provision that allows renters to be forced out if the owner intends to sell or occupy the property, the lawyers told The News Tribune last week.
The provision — which was included in Gov. Jay Inslee’s June 2 extension of the eviction moratorium — requires property owners to provide tenants with 60-day’s notice before issuing an eviction.
A provision allowing for evictions in such circumstances is a standard piece of state-landlord tenant laws during normal times, but in response to the COVID-19 pandemic the governor’s April emergency expansion of the state’s eviction moratorium temporarily prevented it.
Landlord advocacy groups like the Washington Multi-Family Housing Association say the stipulation is important and necessary.
As property owners navigate the COVID-19 pandemic, it provides important financial flexibility, they said.
According Washington Multifamily Housing Association director of government affairs Brett Waller, the provision “enables an owner who may have also lost their job to sell or move into their rental home to support their family’s needs.”
Eviction lawyers like King County Housing Justice Project senior project managing attorney Edmund Witter have a different way to describe the current situation.
Witter fears the provision — which he called a “loophole” — is being abused by some landlords.
Mark Morzol, the managing attorney at the Tacoma-Pierce County Housing Justice Project, shares the concern.
After reviewing several cases that recently crossed his desk, Morzol suspects the provision is being used as an unintended carve-out in the statewide eviction moratorium, allowing unscrupulous landlords to force out tenants who are unable to pay rent during the COVID-19 pandemic.
“What we’re seeing is more cases,” Morzol told The News Tribune last week.
“Now that there’s just that narrow sliver of available evictions, a lot more cases are trying to couch the eviction in those terms,” he added.
‘The owner ... intends to sell’
McShane isn’t quite sure what to think.
She now knows what happened to her family is legal under the state’s emergency moratorium on evictions, but that doesn’t mean it feels right, she said.
When McShane learned there wasn’t much she could do to fight the order to vacate, she said it “really kind of deflated us.”
Erlene Smith, the director of business operations for Affinity property management — which manages McShane’s former rental — said that the 60-day notice her company provided was by the books.
As the notice stated in bold, “The owner of the property intends to sell the home,” Smith reiterated in a statement emailed to The News Tribune.
Smith indicated discussions about selling the home began in June, “at which time we put her in touch with our in-house broker.”
Smith also clarified that, “No steps have been taken toward selling yet because the broker and the home owner agreed to wait until the home is vacant before marketing it.”
“We did not issue the notice to the tenant for non-payment of rent,” Smith said. “We are not taking advantage of the governor’s 60-day notice to vacate provision. We are following the governor’s guidelines. “
Attempts by The News Tribune to reach the owner of McShane’s former rental home — which Pierce County tax records indicate is registered to Sarah Mendoza of Beaverton, Oregon — were unsuccessful.
Confronted with the complexities and the realities of her family’s current plight, all McShane knows is that she thought her family’s housing was safe.
Now, she’s moving to Kansas, with a newborn.
“I was in shock,” McShane said of her reaction to receiving the 60-day notice.
“I kind of had a little meltdown. “
A potential ‘pretense’ for eviction
Witter and Morzol acknowledge the sample size from which to draw definitive conclusions is small.
Given the 60-day lag time, the attorneys said, the impact of the provision are likely just now being felt, which is what frightens them.
They also wonder: For every client they encounter and every notice to vacate that ultimately results in an eviction being filed in court, how many more are going unnoticed?
How many simply result in a tenant moving out because they don’t want to fight the order or waste time they could be spending finding a new place to live?
“My guess is that most tenants ... just voluntarily leave,” Witter said. “You’re taking on a lot of risk if you’re going to challenge the landlord’s motive. It’s my experience that the court is not going to read into the landlord’s motives too much.”
While overall evictions are down year over year given the statewide moratorium, Morzol said his office has recently seen a noticeable increase in the number inquiries related to an owner’s intention to sell or occupy a rental property. It’s one issue people are consistently calling about.
Morzol said the Tacoma-Pierce County Housing Justice Project is assisting four clients who have received the 60-day notices to vacate. Three of those cases involve tenants who were unable to pay rent, he noted.
“I’m very concerned (landlords) are using this (provision) as a pretense,” Morzol said. “Then, once the eviction goes through, they’re going to miraculously change their mind and find a new tenant that’s able to pay their rent.”
From King County, Witter shared similar concerns.
In the last two weeks, he said, there had been at least seven cases filed in King County Superior Court that list the owner’s intent to sell or occupy the property as grounds for an eviction.
A heat map maintained by the King County Housing Justice Project shows a total of just 23 eviction cases filed in the month of August, Witter noted.
Like Morzol, Witter said that questions about the provision are now “one of the biggest calls” being received by the King County Housing Project hotline. Normally, sell or occupy evictions make up a small fraction of King County eviction cases, he said, but in the last few weeks it’s been closer to half.
Witter said he’s already seen nearly as many sell or occupy evictions in a month as the King County Housing Justice Project has documented in some years, and as the COVID-19 pandemic stretches on, Witter expects questions and concerns about the provision to grow.
“We’re getting several calls a day just about this issue. It’s pretty consistent,” Witter said. “This is something that is pretty evidently being abused, in my view.”
‘No indication that it’s widespread’
If landlords are abusing the provision, it’s not something the governor’s office has seen evidence of, according to Inslee communications director Tara Lee.
“Our legal counsel has only heard rumors that this potentially could be happening — no indication that this is widespread,” Lee said in a statement emailed to The News Tribune.
So far, the governor’s office hasn’t “discussed the need to clarify (the provisions) language,” Lee added, but that could change if a clear pattern of abuse emerges.
“It is a good suggestion and we will definitely review it,” Lee said when asked about the concerns being expressed by some eviction attorneys.
Lee noted it’s the view of the governor’s office that “if a complaint is filed with the (Attorney General’s Office) and it is determined that the owner acted in bad faith, there would potentially be grounds to take legal action against the owner.”
According to Waller, the Washington Multifamily Housing Association director of government affairs, a lack of “direct support available to housing providers” is resulting in some owners being forced into making “difficult choices of whether to sell their property.”
Providing an out for struggling owners is reasonable, Waller argued.
He also acknowledged the obvious: “individuals who rent just one or a few properties are experiencing hardship amidst COVID-19 when their residents are unable to pay rent.”
Big picture, Waller said keeping renters in their homes should be “the government’s top priority right now.”
“Comprehensive rental assistance for those who need it,” he added, would go a long way toward making that happen.
“Washington needs housing stability and housing access more than ever. Eviction is always a last resort for housing providers who are generally going above and beyond to work with residents and find solutions,” Waller said.
According to Smith, Affinity has “issued a few other 60-day notices to vacate” in addition to the one McShane and her family received. All have been “specifically for the purpose of (the owner planning to sell or occupy the property),” she said, and “most” have gone to tenants who were not behind on their rent.
“From our experience with our properties, it seems owners primarily are either taking advantage of the current seller’s real estate market, experience financial hardship and can no longer afford to keep the home or have decided to reoccupy the home for reasons such as relocating back to Washington from out of state,” Smith added.
A a new federal Centers for Disease temporary halt on evictions potentially further complicates matters. While Witter suggested last week that the new CDC order might close what he views as a loophole, Morzol described it as an unanswered legal question. Both attorneys said it’s an issue the courts might ultimately settle.
Lee, however, noted that the CDC’s order doesn’t apply in any state “with a moratorium on residential evictions that provides the same or greater level of public-health protection.”
In the view of the the governor’s legal team, Inslee’s moratorium is “substantively more protective than the CDC’s and therefore is not superseded by the CDC’s order,” she argued.
Regardless of potential legal wrangling to come, Waller was adamant that the provision allowing owners to evict a tenant if they plan to sell or occupy a property should only be used for its “intended purpose.”
“Everyone is having a hard enough time as it is with everything going on — don’t abuse this provision and make life harder for someone,” Waller warned.
‘We didn’t think they could do that’
The blue two-bedroom home in Fife that McShane rented went for $1,450 a month, she said.
Her family’s trouble started when the COVID-19 shut the state down, and her husband — who is diabetic — stopped working as a roofer for fear of contracting the coronavirus or bringing it home to his family and pregnant wife.
Nearly overnight the family’s income dropped by thousands of dollars every month, and rent, McShane said, was something they could no longer afford.
Her husband’s insulin cost hundreds of dollars every month alone, and they suddenly found themselves scraping by.
It was a dire circumstance that McShane said they tried to explain through email to their property management company, but it didn’t seem to do much good.
Each month, McShane said, they received notices from Allied demanding payment in full until, on June 30, they received a 60-day-order to vacate.
“We didn’t think they could do that, because we were communicating with them,” McShane said.
Morzol said it’s one of many confusing aspects for tenants forced to navigate the state’s emergency moratorium on evictions. Even in normal circumstances, the state’s landlord-tenant law can be overwhelming for tenants, he noted.
Now, in the middle of a pandemic, how eviction judges will view the legitimacy of a landlord’s plan to sell or occupy a rental property remains unclear, as do the remedies that exist for a tenant who is ultimately wronged, he said.
More than anything, McShane said, she’s trying to get the word out to other families who might find themselves in a similar situation.
She doesn’t want others to be caught off guard like she was.
“It was scary, and it still is scary,” McShane said Friday, as she drove across the country.
This story was originally published September 10, 2020 at 5:05 AM.
