[WSBARP] Retroactive application of HB 1236 re Notice

Thu Aug 12 22:24:36 PDT 2021

Timothy -

*Dzaman vs. Gowman* (attached). Christopher Cutting analyzed it when it
came down so I'm "borrowing" some of his analysis in the name of efficiency
here. *NJP has been arguing that 1236 is retroactive. *

In Dzaman, the timeline was:

· 6/29/2020 landlord issues 60 day notice without an affidavit;

· 10/1/2020 case proceeds to trial and landlord wins (presumably an oral
decision);

· 10/14/2020 the Governor changes the rules (20-19.4) to create the
affidavit requirement;

· 10/16/2020 the court enters findings, conclusions, and a judgment based
on compliance with 20-19.3

· 10/29/2020 the court issues a writ of restitution

The court's ruling that the writ could not be enforced was based on the
portion of 20-19.4 which prohibited landlords from "enforcing... judicial
eviction orders" unless the affidavit existed. Separately, the court held
that "applying Proclamation 20-19.4 here *does not affect the trial court’s
decision finding Gowman guilty of unlawful detainer or the validity of the
trial court’s October 16 judgment*."

NJP has been arguing that if the law changes before the judgment is
entered, the case stops being valid at that point. This court specifically
addressed that issue and said "applying Proclamation 20-19.4 here *does not
affect the trial court’s decision finding Gowman guilty of unlawful
detainer *or the validity of the trial court’s October 16 judgment.
Proclamation 20-19.4 simply prevents Dzaman from enforcing that judgment by
obtaining a writ of restitution for a certain period of time." That
judgment was issued *after *Proclamation 20-19.4 was issued, meaning this
case is directly contrary to NJP's position.

HOWEVER, I know that some commissioners have been either ignoring this law
and agreeing with HJP or choosing not to interpret the holding the same
way. It's a crap shoot. In your case, I would assume that you have a very
tough case ahead of you if the defendant was not at least granted an
additional 30 days before the complaint was started because you would lose
the "tenant hasn't been prejudiced" argument.

Kaitlyn

On Thu, Aug 12, 2021 at 2:26 PM Timothy Lehr <timothy at stileslaw.com> wrote:

> All,
>
>
>
> I have an upcoming hearing where the issue is one that I’ve been
> interested to see how courts are deciding it. That is, if we don’t reach an
> agreement first.
>
>
>
> LL served a 60 day notice of intent to sell on T before HB 1236 was signed
> into law. Normally I would have advised LL to supplement the notice to
> comply with the new 90 day requirement, but LL didn’t come to see me until
> the 11th hour and a sale is set to close. Anyway, a complaint was filed
> based on T not vacating by the 60 days. The obvious question is whether HB
> 1236 retroactively applies to notices served under good law before it was
> enacted. HB 1236 does not expressly say it applies retroactively, as the
> legislature has does in the past with other statutes (RCW 49.62). I’ve also
> found a line of cases discussing when a statute or amendment to a statute
> applies retroactively.
>
>
>
> I’ve seen letters sent out from the NW Justice Project on behalf of
> tenants plainly stating that 60 day notices are ineffective due to the new
> law, but I’ve never seen an actual argument based in law.
>
>
>
> I’m wondering if anyone has litigated this issue yet and how it turned out
> or heard about how courts are approaching it? I imagine there are numerous
> situations similar to this that have occurred recently.
>
>
>
> Thanks,
>
>
>
> *Timothy C. Lehr*
>
> Attorney at Law
>
>
>
>
>
> p:   360.855.0131
>
> e:   timothy at stileslaw.com
>
> w:  www.stileslaw.com
>
>
>
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-- 
Thank you,

Kaitlyn R. Jackson | Attorney| DIMENSION LAW GROUP PLLC
130 Andover Park East, Suite 300 | Tukwila, WA 98188
t: *206.973.3500 *| f: *206.577.5090*| e: *kaitlyn at dimensionlaw.com*|
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