Parallel to Governor Inslee’s housing stability bridge program and Mayor Durkan’s extension of Seattle’s eviction moratorium, the Seattle City Council passed a series of protections for renters. Among them is an ordinance that allows tenants to avoid eviction due to pandemic related hardship.

The actual provision will be in the city code at, brace yourself, Seattle Municipal Code 22.206.160.C.9 parts a. through d. As the extensive number suggests, it is buried deep in the ordinance. Here’s the trail of breadcrumbs that one would need to follow to get to the provision:

Title 22: Building and Construction Codes
Chapter 206: Habitable Buildings
{Subchapter VI-Duties of Owners and Tenants}
Section 160: Duties of Owners
Subsection C: Just Cause Eviction
Part 9: The thing we’re talking about.

If your landlord is throwing you out, you’re probably not looking for the third nested provision under “habitable buildings” on a kludgy website run by something called Municode. Reasonable folks would probably search for “Seattle eviction help” or “Rental assistance Washington.” The ordinance, however, is anything but reasonable. The Council’s rental protection doesn’t turn up in these searches.

I was digging around in the ordinance to find the right place to put an idea. Landlords shouldn’t be able to get in the door of the courthouse if they have not exhausted all avenues for being reimbursed for back rent. We don’t let other land use issues get into court until every administrative appeal has been exhausted. There are billions of dollars in recovery money waiting to be tapped by landlords. It should be the landlord’s duty to get reimbursed before kicking someone out during a pandemic. The court should be the last option.

This article was supposed to be a defense of that idea. But even before we get to that, we have to address the fact that Seattle’s municipal code is a godforsaken mess. The eviction ban is a good illustration. It’s unnecessarily mealymouthed, buried, and puts the onus on the wrong folks.

So we’re going to take a brief look at Seattle’s current adopted provisions for preventing eviction. Here we have to say that nothing in this article constitutes legal advice. If you are facing eviction, there are resources to help. Please contact King County’s Eviction Prevention web page and United Way’s site for Rent Help.  

Peculiar language and organization

Now, on May 4, 2020, the Seattle City Council adopted Ordinance 126075. In short, it allows renters to stop an eviction for pandemic related hardship. The bill creating the ordinance was 21 pages, including a dozen Whereas statements and legislative findings of fact numbered A to Z and back to AA. Together these laid out the history of pandemic emergency orders and background references that justified the city adding this provision to the ordinance:

22.206.160 Duties of owners[…]
C. Just cause eviction[…]
9.
a. Subject to the requirements of subsection 22.206.160.C.9.b, it is a defense to eviction if the eviction would result in the tenant having to vacate the housing unit within six months after the termination of the Mayor’s eviction moratorium, and if the reason for terminating the tenancy is:
    1) The tenant fails to comply with a 14-day notice to pay rent or vacate pursuant to RCW 59.12.030(3) for rent due during, or within six months after the termination of, the Mayor’s residential eviction moratorium; or
    2) The tenant habitually fails to pay rent resulting in four or more pay-or-vacate notices in a 12-month period.For purposes of this subsection 22.206.160.C.9, “termination of the Mayor’s residential eviction moratorium” means termination of subsection 1.C (creating a defense to a pending eviction action) of the moratorium on residential evictions ordered by the Mayor’s civil emergency order, as amended by the Council in Resolution 31938 on March 16, 2020.

b. The tenant may invoke the defense provided in subsection 22.206.160.C.9.a only if the tenant has submitted a declaration or self-certification asserting the tenant has suffered a financial hardship and is therefore unable to pay rent.

c. If a landlord issues a notice to terminate a tenancy due to a reason listed in subsections 22.206.160.C.9.a.1-2, and if the landlord issues that notice within six months after the termination of the Mayor’s residential eviction moratorium, the notice must contain the following statement: “If you cannot pay rent, during or within 6 months after the end of the Mayor’s moratorium on evictions, your inability to pay is a defense to eviction that you may raise in court.” It is a defense to eviction if the notice does not contain that statement.

d. An award of attorneys’ fees and statutory court costs to a landlord arising from an eviction proceeding arising from a notice to terminate a tenancy due to a reason listed in subsections 22.206.160.C.9.a.1-2 is prohibited unless otherwise allowed by law.

Let’s spend a minute untangling this. The first part (9.a.) is a gatekeeper explaining when the new rule applies to someone. Specifically, this rule applies if it’s 6 months after the Mayor’s eviction moratorium terminates AND the eviction is because the tenant hasn’t paid rent or has been given a pay-or-vacate notice four times in the last year.

This gatekeeper is important because the city allows an eviction for 16 different things. A landlord is allowed to kick out a tenant for nonpayment of rent, as well as emergency orders, going condo, tenant’s criminal activity, or putting the landlord’s own relative in the unit. All these other options have special rules that are located earlier in the ordinance. But 14 of them don’t apply in the pandemic relief because of this gatekeeper. Pandemic relief is only for non-payment of rent.

So, if the landlord is throwing out the tenant over a rent issue, that fulfills part 9.a. Now to the actual rule, which is that the tenant may “invoke the defense” of pandemic hardship.

What?

This provision does not keep tenants out of court. It allows the landlord to file any eviction. The case proceeds in the courts to the point that the tenant and landlord show up. If the eviction is about non-payment of rent, then the tenant can do one of two things. They can “submit a declaration or self-certification” saying they’re suffering hardship (9.b.). Or they can show the court that the landlord didn’t include a specific statement about pandemic hardship in their notice to terminate the tenancy (9.c.).

Forms for declarations are available online through the Washington Courts. Essentially they’re court headers above blank sheets that a tenant can explain themselves and what hardship they’re facing. They’re not available through the either the city’s court website or the city’s rental assistance website. Someone facing eviction has to find the state’s version. 

The last clause prohibits attorneys fees and court costs going to a landlord under this section. There is no mention of the cost of lost work, child care, or transportation for the tenant, as it is just the tenant’s time defending their ability to live in a place.

Backwards and buried

There is a geology aspect to an ordinance, with layers of new material aggregating on top of the basic, somewhat clear original. That’s what’s very much happening in this part of the city code. In the time since May 2020 when this ordinance was passed, the City Council has added three further defenses against eviction, including stopping evictions during the declared pandemic emergency, stopping evictions during the school year, and permitting a tenant to rescind an agreement to terminate tenancy. 

As these strata pile up, they reduce the clarity of the code. Such opaqueness is where we run into gaps and unintended consequences. It’s not difficult to see the gaps in this ordinance. It clearly gives landlords 14 other reasons to evict someone besides being owed rent. Tenants have to show up in court and know that they have the right to assert pandemic hardship. It puts the onus in the wrong place.

So it begs the question: what are we trying to do here? It is obvious that the city council wants to provide extensive protections for Seattle’s renters. But the actual mechanisms lock out people who don’t know where to find them. The city code needs clarity, particularly when it comes to something as important as renter protections. Adding another round of, essentially, exceptions to exemptions diminishes that clarity. It’s time to step back and look at the entire section more broadly. It needs to be revised as a whole, being specific to what circumstances and what times landlords may get into the courthouse. 

That specificity and clarity should apply to many other parts of the city’s behemoth municipal code as well. There’s 1,400 pages of the zoning ordinance alone. And that’s only one title out of 25. 

Just like the geologic record, our ordinance tells a particular story about the city. It shows how our values have gotten updated over the years. But it’s not a story that should have to be read every time someone is trying to figure out whether they’re getting kicked out of their home. If our city’s priorities really include transparency and equity, it’s been buried deep in the city’s code.

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Ray Dubicki is a stay-at-home dad and parent-on-call for taking care of general school and neighborhood tasks around Ballard. This lets him see how urbanism works (or doesn’t) during the hours most people are locked in their office. He is an attorney and urbanist by training, with soup-to-nuts planning experience from code enforcement to university development to writing zoning ordinances. He enjoys using PowerPoint, but only because it’s no longer a weekly obligation.

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Lisa Herbold

SDCI let me know today that they will complete their annual update to the essential Renter’s handbook around the first of the year. 

Jules James

Hallelujah! You are singing an essential song: The Landlord-Tenant law is so convoluted, amended and caveated that few tenants can understand their rights. Nor can the judges. Or the landlords. It is contract law now blind to common sense. Lets survive the pandemic evictions, then benefit from all those government-funded eviction lawyers to start over. Resolve L-T disputes with cash-for-keys. Recognize the motives of new owners and developers differ from established landlords. Encourage buildings that are owner-operated sized. Re-write rental housing law to encourage community.

Lisa Herbold

Thanks for writing this Ray. I wanted to share this resource. Renter’s Handbook (formerly Information for Tenants) – English (seattle.gov) It is helpful, but as you say it hasn’t been updated to reflect new laws. There is a law that requires landlords to distribute this summary at time of tenancy, because we can’t as you say count on the municpal code being an adequate resource for renters to learn their rights; so it’s pretty important that it get updated! I intend to SDCI to do so.