Basic Eviction Process in Washington and Idaho
When a tenant fails to pay rent, the landlord cannot simply show up, move stuff out, and change the locks. The landlord must give the tenant a certain amount of time to pay or vacate the premises, with the amount of time varying depending on whether it's in Washington or Idaho, and whether it's a mobile home park. If the tenant doesn't pay, the landlord can file suit and move forward toward removing the tenant fairly quickly.
Can a Landlord Evict Tenants During the Pandemic?
Basically, No (for unpaid rent on residential leases)
Evictions for unpaid rent are effectively tolled in Washington and Idaho based upon both federal law and state law and COVID-19 policy.
Federal: On March 18, the U.S. Department of Housing and Urban Development (“HUD”) issued a 60-day federal moratorium on new and current foreclosures and evictions from single family homes with mortgages insured by the Federal Housing Administration (“FHA backed Mortgages”). If you are a landlord or property manager, you should find out which of your properties, if any, are FHA backed mortgages. The federal moratorium is currently longer than the state moratorium and it is possible a landlord may be free to evict by state law, while being prohibited under federal law.
In addition, as part of the federal CARES Act, passed on March 27, 2020, a 120 day eviction moratorium for evictions based on nonpayment of rent was put into place for all properties with a federally insured mortgage (Fannie Mae, Freddie Mac, FHA, HUD, VA, USDA) and properties participating in a covered housing program, such as the Section 8 voucher program, rural housing voucher program, the Low-Income Housing Tax Credit and properties covered by the Violence Against Women Act. This moratorium prevents evicting, serving notices, and issuing late fees during the moratorium period. A landlord should consult with its attorney before taking any action.
Washington: On March 28, 2020, a moratorium was issued on new and current evictions for failure to pay rent until April 17, 2020, but is anticipated to be extended out further. Whereas, the federal moratorium only applies to properties tied to federally backed mortgages or other federal programs, this state moratorium applies to all residential tenancies. The state moratorium freezes any current eviction case, bars all new evictions, an even prohibits a landlord from serving default for failure to pay notices or 20-day notices to terminate month-to-month tenancies. The only way an eviction can be filed is if the landlord is willing to swear under the penalty of perjury that an eviction is necessary for the health and/or safety of other tenants. The Moratorium does not prevent eviction for other reasons unrelated to failure to pay rent. Cities such as Seattle and Spokane have enacted their own moratoriums, which are not covered here.
Idaho: The Idaho Courts have limited themselves to hearing a very restricted set of cases at this time, namely emergencies. Evictions will rarely count as emergencies unless they are related to the sale or manufacture of controlled substances.
What Should I do if my Tenants Aren't Paying? Can I Charge Late Fees?
Contact your attorney to discuss messaging and legal options.
Under certain circumstances, evictions may occur, but not merely for failure to pay rent. A competent attorney who view herself as not only an Attorney at Law, but a Counselor at Law, will be able give you both legal and practical advice on how to best solve your problem in your specific geographic area.
Federal: Late fees may be prohibited for those certain properties mentioned above.
Washington: There is nothing in the state moratorium preventing a landlord from charging late fees, though certain cities have.
Idaho: There is nothing currently in Idaho preventing a landlord from charging late fees.
Should I Stop Paying My Rent?
Not if you can help it.
A tenant has a contractual obligation to pay rent. A moratorium (actual or practical) only prevents tenants from eviction for now - it is not rent forgiveness. Once the pandemic subsides and/or moratoriums are lifted, landlords can evict if need be and seek rent that went unpaid during the pandemic. If a landlord successfully evicts the tenant, not only will the tenant have to leave, but the court will also make the tenant pay the unpaid rent and costs, including attorney's fees. An eviction is a court judgment that will affect a tenant's credit score and show up on a background check. In fact, if a landlord even has to sue for eviction, that suit may show up on background checks, whether or not the eviction actually took place.
In addition, voluntarily opting not to pay rent may have the unintended consequence of harming those most vulnerable or those who truly cannot fully pay their rent. Many landlords will work with people who are especially vulnerable, but may be unable or unwilling if they perceive many people as taking advantage of the situation.
What Should I do if I Can't Pay My Rent?
Think about calling your landlord.
Depending on the situation, it could be beneficial to contact the landlord to discuss options. Though It is unlikely that many landlords agree to waive rent, some may be able to work with a tenant. There are also several funding and tax deferment options currently available to people and business related to the Coronavirus.
What about Commercial Tenants?
They are technically not protected, but it will be difficult to evict during this time.
Washington: The Washington moratorium only protects residential tenants, however state-wide restrictions only really leave the courts available for certain matters such as emergencies, which evictions typically are not.
Idaho: There is no moratorium right now on residential or commercial evictions in Idaho. But, the courts are limited to hearing a restricted set of cases, namely emergencies, which evictions are typically not.
Can a Landlord or Tenant Invoke the Force Majure (Act of God) Clause?
Unlikely, but possible.
A Force Majure clause in a contract relieves one or both of the parties from having to fulfill the terms of the contract if an “act of God” occurs. In order for this to apply, one should look to the contract itself to see a) if there is a Force Majure clause and b) how Force Majure is defined. Most of these clauses are defined by a natural disaster or something of the like. Unless epidemic, pandemic, or something similar is listed, it's not likely to apply. That said, you should call your attorney to provide an opinion on your specific case.