Seattle law letting tenants self-certify financial need unconstitutional

Seattle law letting tenants self-certify financial need unconstitutional

On Behalf of | May 5, 2022 | COVID-19 Concerns, Eviction, Landlord/tenant, Residential Leases

New York property owners will remember the important U.S. Supreme Court case that shut down enforcement of the provision of our pandemic eviction moratorium law, the COVID-19 Emergency Eviction and Foreclosure Prevention Act of 2020 (CEEFPA), that allowed a tenant to avoid eviction by self-certifying their qualifying financial hardship.

Now, a Washington state appeals court has blocked a similar provision in a Seattle ordinance, based on the U.S. Supreme Court’s order in the New York case.

“No man can be a judge in his own case”

In Chrysafis v. Marks, the high court granted the residential-landlord plaintiffs’ request to preliminarily enjoin enforcement of this part (Part A) of the New York law. The court held that the self-certification provision was an unconstitutional violation of a landlord’s due process rights because there was no way for them to challenge the accuracy of the tenant’s declaration of financial hardship, such as at a hearing.

Without the ability to contest the alleged financial hardship, a landlord could suffer financial losses because they were unable to contest the tenant’s allegations. Of course, without the possibility of a legal challenge, the tenant could purposefully or mistakenly misrepresent their own financial eligibility for a stay of eviction to the property owner’s detriment.

The court referenced its “longstanding teaching” that “no man can be a judge in his own case” and comply with due process requirements, which usually requires a hearing for the opposing party.

Same issue, different state

A Seattle ordinance also allowed a tenant to self-certify their financial hardship and inability to pay rent as a condition to qualify for a six-month extension of a COVID-19 eviction ban, counted from the end of the civil emergency. Like New York’s law, there was no way for a property owner to legally contest the accuracy of the certification.

On June 21, the Court of Appeals of Washington in Rental Housing Association v. City of Seattle held that in light of Chrysafis, the Seattle self-certification allowance also violated the landlords’ due process rights. It reasoned that the New York law at least required that the tenant make their declaration “under penalty of perjury” and even that was not enough property owner protection for the U.S. Supreme Court.

The Washington court noted that the city had not made any argument that an “additional procedural protection would be unduly burdensome.” Considering the “erroneous deprivation that would cause [landlords] an undue burden” by comparison, the court found the ordinance’s eviction ban extension unconstitutional.

Going forward

We at Borah, Goldstein are available to answer questions about all pandemic-related legal matters impacting landlords, property owners and property managers.

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