COVID Emergency Orders End, Tenant Protections Remain… With More Coming
December 8, 2022
Authors: Ryan Makinster
Publishers:
by Ryan Makinster, Director of Government Affairs for the Washington Multi-Family Housing Association
On October 31st, both the Washington State and Seattle COVID emergency orders ended. However, many of the tenant protections adopted during the pandemic remain in place. At the local level, tenant advocates continue to push for increasingly onerous “protections,” many of which have been successfully adopted, much to the chagrin of the multifamily industry.
While the emergency orders have concluded, housing providers must still abide by several pandemic-related provisions. At the state level, these include the requirement for housing providers to offer payment plans for past rent due and the Eviction Resolution Pilot Program (ERPP).
Separate from ERPP, the requirement to allow payment plans for back rent accrued during the pandemic ends on April 30, 2023. The program mandates housing providers to negotiate a payment plan with tenants who have fallen behind on rent during the declared emergency.
Although associated with the emergency order and Covid protections, the ERPP was adopted independently of the emergency order and has a sunset date of June 30, 2023. Housing providers must go through the ERPP prior to filing an unlawful detainer on residents who have not paid rent. Originally envisioned as a potential alternative to evictions and supported by industry advocates as a good compromise to help address non-payment issues prior to eviction, the program has not met intended goals or benchmarks. In addition to delaying housing providers’ access to the courts in a timely matter for eviction proceedings, the success of the program also seems to be in question. According to housing providers, mediators are accepting negotiated payment plans that the tenant has no way to financially comply with. When the tenant ultimately defaults on the payment plan, they again return to the mediation process to negotiate a new plan, further delaying resolution and increasing the financial liability to housing providers. Many providers note that these tenants will likely never be able to repay the liability.
Seattle’s COVID emergency declaration had two provisions tied to the order. The first requires landlords to cap repayment installments at one-third of the tenant’s rent, offer a “reasonable schedule” for the tenant to pay back what rent they owe, and expand the window of protection until six months after the end of the declaration, April 30, 2023. The second is a prohibition of late fees or other charges associated with non-payment of rent during and for one year after the mayor’s civil emergency period, which puts the end date at October 31, 2023.
In addition to these temporary orders, many were adopted in perpetuity under the guise of pandemic protections and will continue while advocates push for more.
In Good Faith
In 2019, the Washington Multi-Family Housing Association (WMFHA) and others in the industry worked with tenant advocates, the legislature, and others to address concerns regarding notice of rent increases, extending the statutory requirement of rent increases from 30 to 60 days. At the time, it was understood that offering only 30-day notice was causing hardship for some tenants who chose to seek new housing due to the increase. In the spirit of compromise and to help those that would have been impacted, WMFHA and others agreed to the 60-day notice included in the legislation.
Unfortunately, although the industry negotiated the compromise in good faith, tenant advocates who were unable to get their extreme agenda passed at the state level are now pushing much longer notification requirements in local jurisdictions, along with a long list of onerous mandates, restrictions, and requirements.
Rent Control by Another Name
Unable to pass local rent control due to the state preemption contained in RCW 35.21.830, tenant advocates have started pressuring local jurisdictions to enact a laundry list of “tenant protections.” Several jurisdictions have adopted these provisions with little to no industry or stakeholder engagement. The new regulations include extended notice for rent increases, limits on move-in fees, limits on late charges, prohibitions on the use of social security numbers for tenant screening, and more.
Many of these efforts have been championed by A Regional Housing Coalition (ARCH), and some or all of these “protections” have been adopted in Seattle, Unincorporated King County, Kenmore, Redmond, Kirkland, Olympia Issaquah, Port Townsend, and Burien, with other cities currently under consideration.
Although not universally adopted or the same in every jurisdiction, these protections are generally:
Rent Increase Notification (ARCH Proposal)
120 days for an increase over 3%
180 days for an increase over 10%
Move-in Fees (ARCH Proposal)
Capped at one-month rent with the right to pay in installments over six months (or two months for leases shorter than six months)
Late Fees (ARCH Proposal)
Capped at a percentage of monthly rent (usually 1.5%) or a flat rate ($10)
Rent Due Date Allowable Change
Allows tenants to change the due date of rent from a contractually obligated date in the lease to a date more convenient based on when they receive a source of income (usually fixed income or government assistance)
No SSN Required for Tenant Screening
Housing providers may ask for Social Security numbers during the application process but are prohibited from requiring them.
Although uncommon, some cities have taken these provisions further. Burien, for example, allows tenants to break their lease at any time after a rent increase notification and only be liable for rent until the day they relinquish the property. Assuming a six-month rent increase notification, housing providers’ one-year leases have effectively become six-month leases.
The Wrong Answer
It seems antithetical for an organization like ARCH, whose mission is “to preserve and increase the supply of housing for low- and moderate-income households in East King County,” to push legislation that will only serve to increase the cost of business, thereby increasing rent in the long term, while also stifling incentives to add new multifamily units to the marketplace.
Washington state, and more specifically western Washington, has a housing crisis created by lack of supply. Rather than address the root cause of the issue created by past policy decisions, advocates and their elected “allies” are instead pushing policies that will only exacerbate the crisis now and long into the future.
According to a recent study conducted by Up for Growth, Washington has underproduced over 140,000 homes since 2012. In order to keep up with current and future demand, the state has also projected we will need to add almost one million homes by 2050 to address the current deficit, which continues to increase each year.
We cannot address either the housing availability or affordability crises by increasing the cost of doing business and disincentivizing production of the units we so desperately need.
For a spreadsheet of current tenant protections by jurisdiction or more information, please email Ryan Makinster, Director of Government Affairs at WMFHA, ryan@wmfha.org.