Eviction Predictions: A Roadmap for Landlord-Tenant Law in Washington

Eviction notice on door

The past year saw a major overhaul to Washington’s Residential Landlord-Tenant Act (RLTA) and unlawful detainer statutes. Under gubernatorial emergency powers exercised in response to the coronavirus public health crisis, a statewide residential eviction moratorium remains in effect until Aug. 1. Several localities extended eviction protections past August; the City of Seattle’s eviction moratorium effectively prohibits evictions until January 2021.

When respective eviction moratoriums expire, many landlord-tenant (LL/T) practitioners and superior court judges and commissioners have expressed concern about an onslaught of unlawful detainer cases expected to come flooding onto court dockets. Although gubernatorial proclamations encourage tenants to pay rent and cooperate with their landlords, they specifically prevent evictions for nonpayment of rent. If a landlord and tenant with arrears incurred during the COVID-19 moratorium cannot maintain a reasonable payment plan, or refuses to engage with their landlord, a landlord’s only practical remedy will be to file an eviction.

Past experience informs us that the predicted eviction onslaught will more likely be a steady inundation of evictions on the civil dockets. Nonetheless, LL/T practitioners and the courts will be navigating a rapidly evolving area of law.

One of the biggest challenges to LL/T practice will be the continued introduction of additional procedural hearings alongside judicial emphasis on informal settlement conferences. Depending on each jurisdiction’s unlawful detainer caseloads and available dispute-resolution resources (legal aid, informal mediation services, etc.), LL/T practitioners will see additional procedural hurdles prior to the statutorily proscribed show-cause hearing.

To that effect, LL/T practitioners will likely see court commissioners hawkishly guarding their dockets from time-consuming show-cause hearings. As enshrined through decades of LL/T practice, show-cause hearings are the procedural mechanism to resolve all but the thorniest factual disputes (which are usually destined for either an expedited bench trial within 30 days or an out-of-court settlement). In order to expeditiously manage their civil dockets, court commissioners will increasingly need to modify their respective dockets to weed out fact-intensive unlawful detainers. These fact-intensive show-causes will be punted to a later show-cause hearing or set for a bench trial.

In other words, courts will have to push through as many straightforward cases as quickly as possible and push out complex cases until there is simply the time available to handle them.

The court commissioners will build upon preexisting informal practices to determine what scrutiny they will apply to each unlawful detainer. Therefore, landlord and legal aid attorneys will need to be prepared to brief the court on new state and federal eviction defenses (i.e., defenses created by gubernatorial proclamation); greater use of evidentiary rules and procedures; and, for landlord attorneys, manage client expectations, especially in light of the fact the eviction process is no longer a truly expedited procedure.

An inevitable increase in unlawful detainer bench trials will mean increased interest in judicial efficiency. Oftentimes, an unlawful detainer trial encompasses multiple issues of fact and procedural issues mushed together in the court commissioner’s trial order. Each party is burdened with time-consuming trial preparation for what is usually a one-day bench trial.

To ease the burden on practitioners and the court, I would recommend that LL/T practitioners consider either stipulating or motioning the court to narrow the issues for trial. More often than not, the parties are not fighting simply about whether the tenant is entitled to possession of the premises. Much like the informal hallway negotiations and settlements in lieu of time-consuming show-cause hearings, discerning practitioners should comprehend what issues really need to be litigated at trial, and accordingly limit the trial’s scope.

Furthermore, court commissioners will be increasingly skeptical of unlawful detainers where one or both parties are not taking good-faith efforts to resolve their disputes prior to show-cause. Landlord and legal aid attorneys alike would be well served to avoid dogmatism and untenable positions.

LL/T practitioners will encounter an evolving practice area once the moratoriums are lifted. Early communication between landlords and tenants can—and does—resolve many disputes that would otherwise spiral into evictions. To that end, cooperation between the courts, legal aid, and landlord attorneys will be critical for managing the impact of lifting an unprecedented eviction moratorium.