A recent Court of Appeals decision requires a 30-day notice to pay rent or vacate for any residential property with a federally-backed loan (FHA, Fannie Mae, Freddie Mac, etc.).
The court was interpreting provisions of the federal CARES Act. Although state law requires only 14 days’ notice to pay rent or vacate, the court held that federal law preempts state law and requires 30 days’ notice if there is a federally-backed loan.
The same statute applies to tenancies where the tenant receives Section 8 benefits. If the tenant being evicted is a Section 8 beneficiary, then a 30-day notice to pay rent or vacate is required. But, what if the tenant being evicted does not receive Section 8 benefits but tenants in other units do receive Section 8?
That question is being litigated in local courts now. Tenant attorneys argue that the entire property is subject to the CARES Act 30-day notice requirement if any tenants in a multi-unit building receive Section 8 vouchers–even if no tenant in the unit in the eviction case receives Section 8 benefits.
The Department of Housing and Urban Development has taken a contrary position and opines that only those units with Section 8 tenants fall under the CARES Act. The opinion of HUD is not binding on courts.
Tenant attorneys point to case law that holds that any ambiguities in eviction laws are construed in favor of tenants. This rule is primarily a state-law rule for interpreting Washington landlord-tenant law, however.
Under both Washington and US Supreme Court precedents, there is a strong presumption against expanding federal preemption of state law. Where the law is ambiguous courts are to construe the law to avoid preemption, not expand it. If Congressional intent in a statute is less than clear, state law should prevail.
This issue may be litigated well into the future and could be the subject of appeals in Washington and–as the CARES Act is a federal statute–in other states and/or federal courts as well.
If you have a federally-backed loan on a rental property or have Section 8 tenants in any units in a rental property you should consult with an attorney before proceeding.
