[WSBARP] Supreme Court - Eviction Moratorium - McCrea v Drury

Tue Mar 9 12:19:34 PST 2021

Robert -

I have lots of thoughts. I'm sure I'm being naive when I assume the Supreme
Court will be rational in their assessment that the CDC's order does not
apply in Washington because 1. Washington's own eviction Proclamation is
*more* strict than the CDC"s protection (which is one of the stated
exemptions in the CDC Order itself) and/or 2. the CDC's authority does not
extend to private land contracts. It's an interesting debate - but I don't
think the CDC told people they *had *to wear masks, right? Everything they
did with regard to policing people's behavior were recommendations that
local governments could use as evidence to create policy within their
jurisdictions. That is, except for this Order regarding evictions. But it's
certainly been a really hard slog trying to keep up with all the different
municipalities, counties, state, CDC, and Federal Government all acting on
their own with regard to evictions and governing landlord/tenant contracts.
Reminds me of the old adage "too many cooks spoil the soup." So, I can't
claim I know everything the CDC did this last year and how they
accomplished it. If it is determined the CDC had the requisite authority,
it makes me wonder how far they can stretch that moving forward when we
approach new social problems. I've never been one to really fear or
question the stretch of government authority - but the way this CDC order
has been handled has been an eye-opener for me personally and
professionally. In addition to being an attorney I'm also a housing
provider. One of my goals was to provide affordable housing so I could help
people through difficult transitions in their lives. I virtually only
charge my tenant(s) what it costs me to keep the Property. However, the
reality is that the level of risk and lack of control that I have over the
Property that this situation has brought to light has made it clear that I
can't absorb that level of risk. So, like many of my clients, when it's
possible, there's really only one way to reduce that risk - sell out of
Washington which reduces the accessibility of affordable housing
(especially quality housing). Big landlords who develop large apartment
buildings will survive and probably thrive - but people who don't want to
raise their kids in apartment complexes (or in the New York large low-cost
complex model), will rarely have that opportunity.

Off of the soap box - the reality here is that the fact that owners and
housing providers are having to wait until the summer (which will be 14-16
months after the moratorium began) to come to this conclusion is a
miscarriage of justice and it's not equitable because equity requires an
assessment of both sides' circumstances. At least, it is in Washington when
Washington's own laws don't require any proof of COVID-19 impact and don't
consider the situation of the landowner. In one county I appeared in this
week, even when a Defendant files a CDC Declaration, the Commissioner will
not allow Plaintiff's counsel to question the facts declared by the
Defendant to demonstrate the patently false contents of the Declaration.
In another case I am involved in, the tenants have not paid a single dollar
in over a year and live in a 1.4 million dollar house on Lake Washington.
It's hard to say they've "lost their jobs" when they own their own
businesses. In another case the occupant is a subtenant that the landlord
never knew about or agreed to and this person is constantly posting all
over facebook vacationing in elaborate destinations while, once again, not
paying $1 in rent for over a year. A couple of weeks go I was barely able
to save a client from foreclosure due to the inability to remove the
occupants so that the Property could be sold on the open market.

I probably have 30-40 cases I've dealt with over the past year that involve
clear abuse of the protections. And I'm just one attorney in this field. So
if my experience is any indication of the level of abuse out there - it's
rampant and it will be the tax dollars that subsidize it when all this is
over.

In my humble opinion, the government is foisting it's responsibilities to
resolve the housing crisis onto private landowners without any compensation
(let alone "just" compensation). Moreover, there's no balance of the
equities even when the landlord has a really good reason to terminate the
occupancy to (for example) sell the Property. I'm working on several cases
involving elderly individuals needing to sell their rental properties in
order to pay for their own healthcare or to be able to afford housing of
their own. The justification for this is "well, these defendants still owe
the money so it's not technically a taking."  I understand housing is a
necessity - but so is food. I think what's going on now is analogous to
requiring private restaurants to allow people to come in and refuse to pay
for their meals because of COVID-19 and also require those restaurants to
continue feeding those individuals day after day while the pandemic is
going on because, well, food is a necessity. Obviously restaurants were
heavily impacted by the Pandemic, but at least they could shut their doors,
sell their business, or close up shop to stop their financial bleeding. Not
the same is true for housing providers.

I've been thinking creatively about other ways to challenge the CDC's
authority in Washington and have been wondering why housing providers can't
simply force a non-paying defendant to file for bankruptcy. Wouldn't a
housing provider be a creditor? What would happen if the housing provider
did force a tenant to file for bankruptcy? Wouldn't the trustee have the
authority whether or not to allow the lease to continue or to terminate it?
Wouldn't that create a jurisdictional showdown between the authority of the
CDC and the Bankruptcy court? Anyone have thoughts on that?

Kaitlyn

On Tue, Mar 9, 2021 at 11:06 AM Rob Rowley <rob at rowleylegal.com> wrote:

> Any thoughts on the February 4, 2021 Supreme Court commissioners ruling
> which raised issues with evictions related to terminations based upon
> owner's intent to sell or occupy.  Dealing with the federal CDC eviction
> moratorium being declared unconstitutional by a Texas federal district
> court.  Oral argument on May 13.
>
>
> https://www.landlordsolutionsinc.com/wp-content/uploads/2021/03/WSC-ruling-staying-eviction.pdf
>
> I understand we can still issue notices just not proceed with eviction
> hearings.
>
>
>
>
>
> *Robert R Rowley*
> Attorney & Counselor at Law
>  (509) 252-5074   (509) 994-1143
>  (509) 928-3084   rowleylegal.com <http://www.rowleylegal.com/>
>  rob at rowleylegal.com
> Helping You Protect What Matters Most
> <https://www.facebook.com/rowleylegal>
> <https://www.twitter.com/ROBERTRROWLEY>
>
> *Practice concentrated on business, real estate and general legal matters
> in Washington and Idaho. *
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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*|
www.dimensionlaw.com

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