AN ALERT FOR LANDLORDS OF SECTION 8 TENANTS: FEDERAL LAW TRUMPS THE UNLAWFUL DETAINER STATUTE

A recent case decided by the Washington Court of Appeals has restricted the rights of landlords to evict Section 8 residential tenants for minor lease violations. Ordinarily, if a residential tenant violates a provision of the lease other than the payment of rent, the landlord can recover possession of the premises by serving a notice on the tenant directing correction of the violation within ten days. If the tenant fails to correct the violation then the landlord can file an unlawful detainer complaint with the court and ask the court to evict the tenant.

This recent case presented the question whether provisions required by the federal Department of Housing and Urban Development in Section 8 leases can throw a roadblock in front of this process in Washington for a landlord who gave the required notice to a tenant based on a minor but uncorrected lease violation. Of course, in Section 8 leases most of the rent is paid to the landlord by the federal government. The tenant in this case had placed a piece of plywood on the deck of her unit and had failed to remove it after the landlord served the ten day notice.

The Section 8 lease included an addendum with language required by HUD, which bound the landlord not to terminate the tenancy except for repeated serious violations by the tenant of the terms of the lease or other “good cause.” In many unlawful detainer cases for residential tenants, the landlord asks the court to rule summarily, without a trial, that the tenant is wrongfully in possession of the property and should be evicted. In such cases, where a notice to correct the violation has been served and the ten days have passed without correction and the tenant cannot show that the violation was corrected within the ten days, then the court will typically grant the eviction without giving the tenant a trial.

That is what happened in this case. The tenant removed the plywood from the deck four days after the end of the ten day notice period, and this four day delay was the landlord’s stated basis for seeking eviction. The trial court granted the eviction but on appeal the Court of Appeals reversed because the fact that the landlord had received the benefits of the federal rent subsidy program and in addition a federal tax credit program meant that the landlord was bound to the higher requirement of federal law to justify an eviction. This also meant that the tenant was entitled to a trial on whether her conduct amounted to repeated serious violations of the lease or other “good cause” for the termination of the tenancy. The Court of Appeals rejected the landlord’s argument that the unlawful detainer statute in Washington allows eviction where the landlord complies by sending the required notice and the tenant fails to correct the identified violation within the ten days. The court also rejected the landlord’s claim that the Section 8 lease limitation to a landlord’s termination rights only applied at the end of a lease term, noting that the landlord in this case had filed a complaint asking the court to terminate the tenant’s occupancy of the premises.

Plainly requiring a trial before the court may grant an eviction raises the stakes for landlords of Section 8 tenants. The time involved for a trial can be four or more months, even in the District Court which has much shorter time intervals for trial than the Superior Court. A trial can consume a day even for a simple case, compared with a summary hearing which would take a few minutes. And the evidence that will be required to justify an eviction of a Section 8 tenant will clearly be greater than a simple uncorrected minor violation of the terms of the lease. The court did not specify what would satisfy the standard, but landlords must be prepared to wait and accumulate evidence of violations that affect the quiet enjoyment of other tenants or otherwise threaten some harm that is real, if they hope to win such cases in the future.

The preceding is intended as education and may not be construed as legal advice.