JUST CAUSE / MANDATORY LEASE RENEWAL

Restricting a housing providers ability to control the use of their property and address problems effectively.

Status: Ruling Issued, Just Cause was Preempted Under State Law
Case Court: Court of Appeals
ABOUT

In October 2019, the City of Burien passed BMC 5.63, enacting deposit installment plans and just cause in addition to other regulations. At the time of its passage, neither deposit installment plans nor just cause were in the Residential Landlord tenant Act. RHAWA LDF filed suit against these provisions on the basis that they were preempted under state law.


WHY IT'S PROBLEMATIC?

While both just cause and move in fee installment plans are state law now, the root problems still remain. As we outlined in our intial complaint many of these regulations "appear to benefit tenants generally, but which are likely to make affordable housing less available to those who need it most." We are now seeing the State Legislature and multiple cities take up these specific provisions and our stance has not changed. Increasing financial, regulatory and admisitrative burden on housing providers will continue to push them out of the market.


CASE TIMELINE

CASE ATTORNEYS

STEPHENS & KLINGE LLP

Status: Awaiting Ruling
Case Court: Court of Appeals
ABOUT

In July 2019, Federal Way City Council voted to put Initiative 19-001 on the ballot. This was after RHAWA had already contacted the City Attorney to inform them that the initiative hadn't followed the proper procedures. The initiative was adopted on November 6, 2019. RHAWA filed its complaint against the initiative on December 6, 2019.


WHY IT'S PROBLEMATIC?

There are two primary problems with the initiative that RHAWA raised. The first is that when the initiative was passed, there was no state just cause and the initiative was preempted under state law. As there is now a state just cause, the ongoing appeal is limited to the requirement that ordinances must contain no more than one subject and that one subject must be expressed in its title. Initiative 19-001 does not express one subject in its title.


CASE TIMELINE

CASE ATTORNEYS

STEPHENS & KLINGE LLP

Status: Ruling Issued, 6-Month Post-Moratorium Ban & Interest Ban Overturned
Case Court: Court of Appeals
ABOUT

Passed unanimously by Seattle City Council in May 2020, the ordinance bans evictions for an additional 6 months beyond the end of the Mayor's COVID moratorium on evictions by making a tenant's inability to pay rent a defense to eviction. It is an additional defense to eviction if this statement is not included in the Notice.


WHY IT'S PROBLEMATIC?

With no end in sight to emergency orders banning evictions, private landlords are now faced with a minimum of one year passing before they can again require rent to be paid. This burden, without meaningful support or subsidy provided by government for market-rate housing, makes it untenable for thousands of landlords in Seattle and across Washington State to survive this crisis.


CASE TIMELINE

CASE ATTORNEYS

Byrnes Keller Cromwell, LLP


RENT CONTROL

Rent control has been proven to reduce the housing stock in areas where it has been enacted. Housing providers must be able to match the rising costs of providing housing. 

Status: Amicus Brief
Case Court: Supreme Court of the United States
ABOUT

This Seattle ordinance bans the use of online “rent bidding” platforms in the city. Two sites, Rentberry and Biddwell, were specifically focused on as possibly impacting the rental market in a way that was theorized could hurt rental affordability. Less than 10 properties in the entire city used the two sites at the time the law was passed, and all the units were luxury apartments concentrated in new construction downtown.

In a ruling upholding the law, a judge deemed that the plaintiff landlord lacked standing to sue as they were not trying to rent their unit at that time. The judge also determined that the First Amendment did not protect the platform as it was deemed to be commerce, and not speech.


WHY IT'S PROBLEMATIC?

Rentberry is a program designed to help facilitate the process of finding a rental and managing to ongoing relationship with rent payment, maintenance requests, etc. The ruling in this case could set a dangerous precedent for other organizations providing similar services. There are already a select few rental marketing and management programs available to housing providers.


INCREASING COSTS

Making it more difficult and expensive to be a housing provider only serves to lower the number of affordable units during this already record-breaking housing crisis. 

Status: Amicus Brief
ABOUT

This case involves King County charging “rent” for the use of public rights-of-way, claiming it has jurisdiction to enact charges for private utilities to deliver service (in some cases the land is actually private).


WHY IT'S PROBLEMATIC?

The fee imposes an additional tax on customers of certain utilities, measured by average value of land abutting the rights-of-way used by the affected utilities. This fee is applied to both public and private land and has a disparate impact on lower income residents. This is an inherently regressive fee that raised the cost of providing affordable housing in King County.

Status: Ruling Issued, Overturned
Case Court: Washington Supreme Court
ABOUT

Mukilteo’s Rental Housing Per Unit Fee Program, ordinance passed in 1997, overturned by the State Supreme Court in 1999. It assessed an additonal fee for licensing a business that provided rental housing. In addition to the $61.00 license fee, housing providers would have to pay $80.60 per dwelling unit that was rented or offered for rent.


WHY IT'S PROBLEMATIC?

It was a targeted property tax for rental housing providers. It did not apply to any other business nor for owner-occupied properties. With the risks and costs that rental housing providers already take on, a targeted tax would cripple many small hosuing providers.

The Court agreed saying: "Both Jensen, 185 Wash. 209, 53 P.2d 607, and Apartment Operators Ass'n of Seattle, Inc. v. Schumacher, 56 Wash. 2d 46351 P.2d 124 (1960), concerned a tax on rental income rather than a tax on the property itself. We held the distinction was without a difference as "the mere right to own and hold property cannot be made the subject of an excise tax, because to tax by reason of ownership of property is to tax the property itself." Jensen, 185 Wash. at 218, 53 P.2d 607 (citations omitted).

To the same effect is Schumacher where we held "a tax upon rents from real estate is a tax upon the real estate itself and an invalid property tax. Schumacher, 56 Wash. 2d at 47, 351 P.2d 124. Once again, and obviously, a tax on the property itself that which we have here is the ultimate evil which was only approximated in Schumacher."

Status: Amicus Brief
ABOUT

RHAWA joined a coalition supporting an amicus opposing Seattle’s income tax law due to its direct impact on the property of our membership. Under the law, money derived from a sale of property was deemed as income and subject to the city’s tax. 

RHAWA was the only amicus brief for the petitioners in this case and was given time to speak during the oral arguements.


WHY IT'S PROBLEMATIC?

Washington already has one of the highest Real Estate Excise Taxes in the country. Additionally, as the court ruled, a graduate income tax is in violation of the State's uniformity clause. Real Estate is one of the only generational wealth building assets and is one of, if not the safest, forms of investment. Additional taxes hamstring the ability of lower income households to build wealth.


TENANT SCREENING

Tenant screening is key to ensuring that housing providers rent to people who will take care of the unit, pay rent on time, follow the rules of the lease and not disturb the neighbors. 

Status: Awaiting ruling from 9th Circuit
ABOUT

Passed unanimously by Seattle City Council in August 2017, and enforced since February 2018, the ordinance effectively bans landlords from accessing and considering an applicants’ criminal records history and information as a part of the tenant screening process at properties in the city.

RHAWA and Pacific Legal Foundation have partnered to challenge this ordinance, with RHAWA serving as plaintiff against the city in the case. The challenge is based upon our assertions that it violates the due process and free speech provisions of the Washington and U.S. Constitutions.

RHAWA’s advocacy team spent months on this issue attempting to find compromise and that the city roundly ignored the concerns of our membership. Recidivism data indicates that re-entry to society is difficult and requires an actual supportive services system that landlords are not equipped to provide.


WHY IT'S PROBLEMATIC?

An individual’s criminal history does provide context on whether they will be a model tenant or a danger to the property. This is particularly true if the person has a long criminal history based on untreated behavioral conditions. Private housing providers are not equipped to provide the necessary services to assist tenants with an on-going crisis or complex mental health issues. In addition, tenants who have been convicted of criminal acts, and have paid their debt to society are protected from having crimes used against them in housing decisions. RCW 19.182.040 creates a “seven year look-back restriction” on screening companies. This is yet another way that an unecessary regulation strips away the tools that housing providers need to provide housing.


CASE TIMELINE

CASE ATTORNEYS
Pacific Legal Foundation
Status: Amicus Brief
Case Court: Court of Appeals
ABOUT
Seattle Move-in Fees Ordinance, passed in 2016. The law was challenged by RHAWA as an illegal government taking without compensation, as well as it being a violation of the state’s pre-emption of local municipalities enacting rent control policies. Unfortunately, RHAWA lost its challenge in King County Superior Court in September 2018. The decision was made by our Legal Defense Committee to not appeal.

WHY IT'S PROBLEMATIC?

Move-in fee caps and installment plans are now common in many cities and even state law. That still has not changed RHAWA's position that capping move-in fees limits a housing providers flexibility and harms the rental housing market. Housing providers can no longer utilize a deposit to mitigate their risk for under qualified or fringe tenants. By removing tools that housing providers can use to mitigate their risk, rental criteria across the board get more strignent pushing many lower income tenants out of the market.


CASE TIMELINE

CASE ATTORNEYS

EGLICK & WHITED, PLLC

Status: Amicus Brief
Case Court: Supreme Court of the United States
ABOUT

In support of RHAWA members serving as plaintiffs in this case, RHAWA's LDF submitted an amicus brief supporting the overturn of Seattle's "First in Time" ordinance. The law required landlords to rent to the first qualified applicant and precluded landlords from using any rational judgment in the screening process outside of minimum stated screening criteria. This included an inability to lower criteria for underqualified applicants who may have been moving past some prior issue.

Seattle First in Time Ordinance, passed in 2017. Originally found illegal by King County Superior Court, but was appealed to the State Supreme Court and ruled to be Constitutional in November 2019.


WHY IT'S PROBLEMATIC?

Housing providers and tenants alike have been running into many issues with First in Time. It prevents housing providers from making virtually any choice regarding their rental property. Additonally it introduces another administrative burden by making it neessary for housing providers complete one screening at a time. This leaves tenants on weeks long waiting lists, unsure whether they will even be considered. First in Time also favors tenants who have fewer responsibilities and penalizes tenants that only have a scant few minutes to send applications.


Help Defend Property Rights in Washington State

Serving as the last line of defense to defend your rights as a private property owner, our LDF exists to uphold your rights against state and local laws which violate our state and federal constitutions. Your support empowers our ability to continue to defend your property rights. Contributions fund legal research and attorney costs. Contributions to the LDF are considered ordinary business expenses. Check with your accountant to determine deductions. Membership dues do not fund the LDF - contributions are voluntary

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HISTORY OF SUCCESS

RHAWA's Legal Defense Fund has a long history of successful lawsuits defending property rights for our members.

  • McCready / Margola (Seattle’s Mandatory Inspection / Rental Housing Fee program), ordinance passed in 1989; lawsuit settled in 1996.
  • A tax was imposed on gross rent, RHAWA litigated this unfair tax on rental property.
  • In 1960, the court ruled that: "a tax upon rents from real estate is a tax upon the real estate itself and an invalid property tax. Schumacher, 56 Wash. 2d at 47, 351 P.2d 124."