[WSBARP] King County Ordinance 19118 enacted June 23 - residential and "small commercial" tenants

Thu Jul 2 11:57:08 PDT 2020

Do counties have the authority to rewrite state law for their jurisdictions?  How is it constitutional for a county to add a defense and tell a judge what evidence to weigh?

Rani K. Sampson
Overcast Law Offices | Attorney
23 S Wenatchee Ave #320, Wenatchee WA 98801 | (509) 663-5588 x 6

From: wsbarp-bounces at lists.wsbarppt.com <wsbarp-bounces at lists.wsbarppt.com> On Behalf Of Catherine Clark
Sent: Thursday, July 2, 2020 11:40 AM
To: WSBA Real Property Listserv <wsbarp at lists.wsbarppt.com>
Cc: Tom Lee <rtl at rtleelaw.attorney>
Subject: Re: [WSBARP] King County Ordinance 19118 enacted June 23 - re residential and "small commercial" tenants

I looked at the question early on in all this and found these cases:

Courts are reluctant to find that a compensable taking occurred where the government temporarily  [***44] used or destroyed property in times of emergency. See, e.g., National Bd. of Young Men's Christian Ass'ns v. United States, 395 U.S. 85, 89 S. Ct. 1511, 23 L. Ed. 2d 117 (1969) (no compensable taking where military troops entered three buildings being looted by a mob of rioters in Panama Canal Zone, ejected the rioters, and took shelter inside the buildings when mob began assaulting the soldiers with sniper fire; some of the buildings were eventually damaged or destroyed in fires started by mob throwing Molotov cocktails at the soldiers); United States v. Caltex (Philippines), Inc., 344 U.S. 149, 73 S. Ct. 200, 97 L. Ed. 157, 123 Ct. Cl. 894 (1952) (no compensable taking where United States military destroyed fuel and demolished fuel terminals to keep them from falling into hands of enemy as Japanese troops were entering Manila following attack on Pearl Harbor and subsequent invasion of Philippines during World War II). These cases are not directly on point, because they involved actual destruction or physical invasion of private property during riots or war, rather than mere termination of utilities. However, the basic principle applies: HN21 Where the necessities of war or civil disturbance  [***45] require the destruction or injury of private property, the resulting losses must be borne by the owners of the property, in that the safety of the state in such cases overrides all considerations of private loss. Caltex, 344 U.S. at 154, quoting United States v. Pacific R.R. Co., 120 U.S. 227, 234, 7 S. Ct. 490, 30 L. Ed. 634, 22 Ct. Cl. 484 (1887) (a case involving destruction of bridges owned by  [*490]  railroad company by Northern Army during Civil War to impede the advance of the Confederate Army))

Citoli v. City of Seattle, 115 Wash. App. 459, 489-90, 61 P.3d 1165, 1181 (2002)

And this one

Eggleston v. Pierce Cty., 148 Wash. 2d 760, 64 P.3d 618 (2003) – property owner whose house was used as a drug house by a tenant could not claim damages in eminent domain where Pierce County held the house as evidence.

Catherine “Cat” Clark
Law Office of Catherine C. Clark PLLC
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From: wsbarp-bounces at lists.wsbarppt.com<mailto:wsbarp-bounces at lists.wsbarppt.com> <wsbarp-bounces at lists.wsbarppt.com<mailto:wsbarp-bounces at lists.wsbarppt.com>> On Behalf Of Roger Moss
Sent: Wednesday, July 01, 2020 9:03 PM
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Cc: Tom Lee <rtl at rtleelaw.attorney<mailto:rtl at rtleelaw.attorney>>
Subject: Re: [WSBARP] King County Ordinance 19118 enacted June 23 - re residential and "small commercial" tenants

Kaitlyn, have two drinks. Then remember you warned everyone that haircuts were coming; they’re just getting more expensive.

Finally, and seriously, all this ambiguity supports putting every rent deferment and lease workout negotiation inside a confidential mediation process. Every bloody one.

Roger A. Moss
Pacific Conflict Intervention
415.371.9724<tel:415.371.9724> San Francisco
206.790.1971<tel:206.790.1971> Seattle
www.Pacific-CI.com<http://www.rogeramoss.com/>

Dictated in motion

On Jul 1, 2020, at 8:36 PM, Kaitlyn Jackson <kaitlyn at dimensionlaw.com<mailto:kaitlyn at dimensionlaw.com>> wrote:

The following section really concerns me:

 A residential rental agreement may not be terminated by the landlord under RCW 59.12.030(2),
RCW 59.18.200 or RCW 59.18.220, where the tenant has entered into a repayment plan under sections 3.D.
and 4 of this ordinance until after the tenant has completed the repayment plan, or the tenant refused or failed to comply with, a repayment plan that was reasonable based on the individual financial, health and other
circumstances of the tenant.  This section shall not prohibit a landlord from otherwise terminating a tenancy
subject to this ordinance due to behavior resulting in an imminent threat to health and safety of other persons on the premises.

Based on Proclamation 20-19.1 and 20-19.2, unpaid rent is not collectable unless the landlord offers a reasonable payment plan based on the individual circumstances of the tenant. So, in order to even take the tenant to small claims court or report credit agencies, the landlord must first offer a payment plan. But, according to this King County Ordinance, if the landlord offers the payment plan and the tenant accepts it, the landlord is forced to keep that tenant throughout the term of the plan. Based on what I'm seeing, courts are looking at 6-12 months as reasonable. Something like this feels like a catch-22.

Therefore, those landlords who want to terminate the tenancies with the tenant once the moratoria are lifted may need to terminate the tenancy for no cause per 59.12.030(2) (assuming they are not in a city that requires "just cause") and THEN after the tenant is gone either by agreement or court action, send a letter offering a reasonable payment plan for the unpaid rent debt, and if the previous tenant won't play ball, then the unpaid rent from the tenancy becomes collectable through normal civil processes.

If the property is located in a city that has adopted a "just cause" ordinance (Seattle, Burien, Federal Way to name a few), then this is much more complicated because the landlord would have to use a 14 day notice to pay rent or vacate and offer a payment plan - then if the tenant takes it, the Landlord must keep them until the payment plan has been satisfied. In this context, I would make sure part of the payment plan requires the signing of a term lease for that repayment period so you get out of the month-to-month status which is so cumbersome on the landlord in this "just cause" jdx.

I need a drink. ;)

Kaitlyn Jackson

On Wed, Jul 1, 2020 at 7:22 PM Craig Gourley <craig at glgmail.com<mailto:craig at glgmail.com>> wrote:
A case in another state the judge ruled that it is not a taking because it does not forgive rent , just delays collection. Apparently collectabilty is just a pesky detail to be ignored.
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From: wsbarp-bounces at lists.wsbarppt.com<mailto:wsbarp-bounces at lists.wsbarppt.com> <wsbarp-bounces at lists.wsbarppt.com<mailto:wsbarp-bounces at lists.wsbarppt.com>> on behalf of nestor at pplsweb.com<mailto:nestor at pplsweb.com> <nestor at pplsweb.com<mailto:nestor at pplsweb.com>>
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To: 'WSBA Real Property Listserv' <wsbarp at lists.wsbarppt.com<mailto:wsbarp at lists.wsbarppt.com>>
Subject: Re: [WSBARP] King County Ordinance 19118 enacted June 23 - re residential and "small commercial" tenants

I am not trying to start trouble, but isn’t this a “taking” by the government without just compensation? Can this be enforced by the courts?

I understand the public policy issue, but as far as I know the county has not put a moratorium on charging or collecting property taxes and for other county services.

Food for thought.

Nestor Gorfinkel

From: wsbarp-bounces at lists.wsbarppt.com<mailto:wsbarp-bounces at lists.wsbarppt.com> <wsbarp-bounces at lists.wsbarppt.com<mailto:wsbarp-bounces at lists.wsbarppt.com>> On Behalf Of Eric Nelsen
Sent: Wednesday, July 1, 2020 5:25 PM
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Subject: [WSBARP] King County Ordinance 19118 enacted June 23 - re residential and "small commercial" tenants

I haven't seen any talk about this so I thought I would send it around—this is for unincorporated King County, based on King County ordinance passed on June 23. It's basically a prohibition on evicting based on failure to pay rent, effective as to payments missed between March 2020 and March 2021, for residential and "small commercial" tenants as defined in the ordinance. The terms seem a little squishy and lots of ambiguities I think. It has a repayment plan provision, again kind of squishy and arguable.

I think I've attached the ordinance as passed but I am not totally positive. If I got it wrong, apologies.

Here's the news release from the County<https://www.kingcounty.gov/council/news/2020/June/6-23-CB-tenant-protections-release.aspx>, which unhelpfully did not include a link to the actual ordinance.

Sincerely,

Eric

Eric C. Nelsen

Sayre Law Offices, PLLC

1417 31st Ave South

Seattle WA 98144-3909

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eric at sayrelawoffices.com<mailto:eric at sayrelawoffices.com>

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--
Thank you,

Kaitlyn R. Jackson | Attorney| DIMENSION LAW GROUP PLLC
130 Andover Park East, Suite 300 | Tukwila, WA 98188
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