CARES Act and Notice Forms Revisions

Several RHAWA forms have been revised as of 12/13/2022 based on the outcome of Sherwood Auburn v. Pinzon, a case related to a tenant receiving two notices to pay or vacate with conflicting dates: A standard 14-day notice and a separate 30-day notice. The 30-day notice was given in compliance of the CARES Act which requires a minimum of 30 days’ notice to terminate tenancy in any properties that benefit from federal programs such as rental assistance and/or federally insured mortgage loans.

• Notice to Quit (One form for 3-Day or 30-Day notice)
• Notice to Comply or Vacate (One form for 10-Day or 30-Day notice)
• Notice to Pay Rent or Vacate Premises (Two form versions: 14-Day and 30-Day)
• Notice to End Tenancy (Note added to 20-day causes)

For more details, refer to the opinion summary below provided by: 
Kaitlyn Jackson, Senior Associate Attorney – Dimension Law Group, PLLC.

New published opinion released December 5, 2022:  https://www.courts.wa.gov/opinions/pdf/841190.pdf  Sherwood Auburn v. Pinzon, applies to all residential and manufactured/mobile home tenancies under RCW Chapters 59.18. and 59.20 et seq which are covered by the CARES Act.

In sum, the Court of Appeals Division 1 ruled the following:

1. The CARES Act requires 30 days before taking any action against a tenant, including starting a lawsuit with an unfiled complaint,
2. The CARES Act trumps the RLTA under the Supremacy Clause of the U.S. Constitution; and
3. Providing a tenant with separate notice deadlines (such as a 14 day notice to pay rent or vacate which is supplemented by a separate 30 day CARES Act notice), is too confusing for the tenant to understand and therefore the landlord loses the right to enforce the notice(s).

So, all 14-day notices to pay or vacate issued against a tenant are effectively now 30-day notices if the property is a "covered property" under the protections of the CARES Act. What's more, is that it can logically be concluded that the court's reasoning extends to 10-day notices to comply or vacate and 3-day notices to quit the premises (becoming "30 day notice to comply or vacate" or possibly "10 day notice to comply or 30 day notice to vacate" and "30 day notice to quit.") 

It's noteworthy that the Sherwood Plaza opinion threw the eviction case out not because the notice failed to include the CARES Act language but because the 14-day notice was supplemented with the standard 30-day CARES Act language, resulting in multiple deadlines which was too confusing for the tenant to understand.  In short, the landlord loses the right to enforce the notice if the deadlines with which to comply can confuse the tenant.

So, what do we do now? 

1. Determine whether the tenant is occupying a Property which  is a "covered property."  How to do this? This is, of course, another murky issue. But the basic lay of the land is as follows:
   "covered properties" include those that:
   • participates in a “covered housing program” as defined by the Violence Against Women Act (VAWA);
   • participates in the “rural housing voucher program under section 542 of the Housing Act of 1949”;
   • has a federally backed mortgage loan (Fannie Mae or Freddie Mac); or
   • has a federally backed multifamily mortgage loan. 

There are also a few different databases that are not comprehensive but may be helpful. Here's one example: https://nlihc.org/cares-act Landlords can Look up if Fannie Mae or Freddie Mac own their mortgage on these sites: 

• Check Who Owns My Mortgage
• Freddie Mac Loan Lookup
2. If the CARES Act applies, then we need to decide whether it makes sense to re-serve the any outstanding notice which is being used to justify terminating the tenancy. 
   
   Advice/Next Steps for Covered Properties by the CARES Act:

• New notices for properties/tenants protected by the CARES Act should be served to give the tenant at least 30 days before the tenancy is terminated. This means that all 14-day notices to pay or vacate become 30-day Notice to Pay or Vacate. This likely extends to 3-day notices to quit and 10 day notices to comply or vacate. They likely need to be re-drafted as a "30-day notice to quit" and a "30-day notice to Comply or Vacate." We are considering that more as this opinion is explored
• Current notices which have yet to expire should be re-served to give the tenant. 
• Lawsuits based on notices which do not comply should be carefully considered. Some might be delayed while a new notice to terminate is served and expires so that the summons and complaint can be amended and re-served. Others may make sense to continue forward with the intention of seeking out the likelihood of settlement. But each case needs to be carefully considered. 

At a minimum, it makes sense to re-serve anything where a summons and complaint has not been filed with the court. Moving forward, all CARES Act properties must issue notices to comply with this opinion - aligning all deadlines for compliance to fall on or after the 30th-day until the CARES Act expires. All outstanding notices should be re-issue to comply. 

Please note that, while this is a Division 1 opinion, we believe tenant advocates and courts outside of Division 1’s direct jurisdiction will be using this case as persuasive authority.

Kaitlyn Jackson, Senior Associate Attorney – Dimension Law Group, PLLC

Formal legal advice and review is recommended prior to selection and use of this information. RHAWA does not represent your selection or execution of this information as appropriate for your specific circumstance. The material contained and represented herein, although obtained from reliable sources, is not considered legal advice or to be used as a substitution for legal counsel.