Washington

Public and Subsidized Housing: What Happens If I Do Not Pay the Rent?

Authored By: Northwest Justice Project LSC Funded
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Introduction

As a tenant who lives in public housing or a federally subsidized apartment complex, you have greater protection against eviction than most other kinds of tenants. But these rights are limited. If you fail to pay your rent, in most cases you can be evicted. This publication briefly goes over how to avoid eviction for nonpayment of rent.

I cannot pay my rent on time. What should I do?

Tell the Housing Authority or your landlord right away. Try to do so before the rent is due and your landlord has served you with an eviction notice.
If you can show that you lost a job or that your income has gone down since your income was last reviewed, the Housing Authority or your landlord may be able to adjust your rent. Your landlord might also be willing to make other payment arrangements. If you and the landlord make other arrangements:

  • Put the arrangements in writing.

  • Make sure you understand them.

    • Note: Do not agree to payments that you cannot afford.

Your landlord may accept part payment or late payment of your rent even though they do not have to. Always try to pay whatever you can.
If your landlord accepts a payment, get a receipt. If your landlord refuses your payment, set aside whatever funds you can to settle the case at a later date.

    • Note: Do not spend your rent money except to move!

If your landlord refuses to accept partial payment, do what you can to pay your rent in full as soon as possible. Contact the Department of Social and Health Services (DSHS) right away to apply for financial assistance. Also try family members, friends and local agencies (example: the Red Cross) for help.

  • Your landlord is one of the few creditors who can harm you if you fail to pay your bills. So generally you should pay your landlord before anyone else.

What can my landlord do if I do not pay my rent when it is due?

Your landlord may evict you for nonpayment of rent. S/he must bring a lawsuit to do so.

Your landlord cannot:
  • Lawfully remove you from your apartment without a court order.

  • Lock you out of your apartment or to shut off your utilities for failing to pay your rent.

  • Take or keep your personal property because you failed to pay your rent.

Does my landlord have to give me notice before starting an eviction lawsuit?

Yes. The landlord must serve you with a written notice to pay rent or move. In most cases, it only has to give you three days' notice. The notice must also give you a chance to pay the rent. And it may have to give you other information.  Read your lease. Make sure that what you got from your landlord provides all the information that your lease says must be in it. If not, you may be able to raise this as a defense and get more time to pay your rent.
The notice does not have to be notarized or delivered by the sheriff. It should be given to you personally at your home. If you are not home, it may be left with someone else there, as long as a second copy is mailed to you. If no one is home, your landlord must leave a copy at your home and mail a copy to you. Your lease may have other service requirements.

If you pay your rent in full within three days of getting this notice, your landlord may not file a lawsuit to evict you based on nonpayment of rent. Where possible, try to pay your rent in front of a witness who can testify in court if your landlord refuses the payment.

Get a receipt for any payment that your landlord accepts. Try to also get a written agreement not to evict you.

    • Note: In limited cases, a landlord may be able to accept overdue rent and still evict you. However, your landlord should tell you that s/he plans to do this.

Read the eviction notice carefully. In some cases your landlord might be required to meet with you to discuss the notice. You may also have the right to a grievance hearing. If so, take this opportunity. Try to settle the dispute.

What happens if I do not pay my rent within three days after being served a pay or vacate notice?

Your landlord may start a lawsuit to evict you by serving you with a Summons and Complaint for "unlawful detainer."  Your landlord can start the lawsuit by serving these papers on you without filing them with the court.

Often, a landlord will delay filing an eviction lawsuit in the hope that you will voluntarily move. Try to pay your rent. Do not move without first discussing your rights with an attorney.

    • Note: If you move, you will lose your federal housing assistance!

Once you are served with a Summons and Complaint for unlawful detainer, you must take immediate steps to avoid an eviction. Our Eviction and Your Defense publication describes what you must do and the forms you will need to avoid an eviction and to defend the lawsuit.

At the least, you must serve a notice of appearance or answer on the landlord (or its lawyer) within the time period set forth in the Summons. You may also have to:

  • Deposit your rent into the court registry

  • File a sworn statement or declaration denying that you owe the rent.

  • Go to a hearing

Read the Summons and Complaint and any other documents served on you very carefully. You must follow the instructions in these documents, or you may be evicted without a court hearing.

What defenses can I raise in court?

  • It is very hard to successfully fight an unlawful detainer action based on nonpayment of rent. The law says you must pay your rent no matter what your financial or personal circumstances. You can be evicted for nonpayment of rent even if:

    You have no money,
    You have children, or
    You are disabled.

To win in court, you must ordinarily show that you do not owe the rent. To do this, you must show that:

  • You paid the rent or

  • The rent that your landlord is demanding is not actually due.

Or you might convince a court that your landlord waived his/her right to evict you for nonpayment of rent, or should be "estopped" from doing so.
Here are briefly some of the arguments or defenses you can raise:

  • Payment or Tender of Rent. If you paid (or tried to pay) the rent within three days of getting the eviction notice, this is a good defense. But you must be able to prove that you paid the rent or "tendered" it in a timely manner. You probably need a receipt or witness.

  • Improper Calculation of Rent. Review your landlord's rent calculations. Make sure they did not overstate your income or understate your deductions in determining your rent.

  • Breach of Warranty of Habitability. In a very few cases, you may be able to argue that you do not owe the rent because your landlord has failed to adequately maintain your apartment and breached the "implied warranty of habitability."  See, Foisy v. Wyman, 83 Wn.2d 22, 515 P.2d 160 (1973). Washington's Residential Landlord-Tenant Act (RLTA), RCW 59.18, also might allow you to make repairs and then deduct the cost of the repairs from your rent. Do not withhold rent without first talking to a lawyer.

  • Procedural Defenses. You might be able to defend against an unlawful detainer action by arguing that the landlord did not follow the right procedure under the law. Example: Your landlord did not serve a proper notice on you before starting the case.

  • Waiver or Estoppel. As a last resort, you might be able to argue that a housing authority or landlord lost the right to insist on timely payment of your rent by letting you pay your rent repeatedly late or making other payment arrangements with you. You may also be able to argue that as a "matter of equity" you should have a reasonable chance to pay your rent late and avoid being evicted. These defenses will usually only work when you can go back to paying your rent in full and pay the back rent in a reasonable period of time. You may also have to pay your landlord's court costs and attorney's fees.

What other options do I have when I have been served with a Summons and Complaint for unlawful detainer?

Many cases can be settled. If you are able to pay your rent reasonably soon, try to settle the case by signing a written settlement agreement with your landlord.

Most landlords will insist that the settlement agreement say they can evict you if you do not make the agreed-upon payments. Your landlord may also ask that you pay some of his/ her court costs and attorney's fees. If you can pay some court costs and attorney's fees, this is better than losing your federal housing subsidy.

  • Do not enter into a settlement agreement that you do not understand or cannot obey. A settlement agreement is a binding contract. The court will usually enforce it no matter what hardship it causes you.

What if I defend the lawsuit and lose?

Your options at this point are very limited. There are three things you can try to do:

  • Reinstate Your Tenancy. The Residential Landlord-Tenant Act, RCW 59.18.410, does give you a way to reinstate or save your tenancy after judgment in an unlawful detainer action based on nonpayment of rent. You must pay the judgment and all court costs into the court within five days of entry of the judgment. You can argue that court costs do not include attorney's fees under RCW 59.18.410.

  • Move for Revision. If the judgment was entered by a court commissioner, you can file a motion for revision and ask a superior court judge to set the decision aside. This will only happen in a very few cases.

  • File an Appeal. Once the judgment is final, you can file an appeal and ask the court to stay (stop) execution of the writ of restitution while the appeal is underway. As a practical matter, you will find it hard to appeal without an attorney. Very few cases can be appealed successfully.

What about filing bankruptcy?

As a last resort, you may be able to file a bankruptcy to delay or prevent your eviction. There are several types of bankruptcies, including a Chapter 7 and 13. Filing any bankruptcy will temporarily delay an eviction.

In order to keep an eviction from ever happening, you may have to file a Chapter 13 case and pay the back rent through regular monthly payments. You will have to show that you can resume paying your rent in full and can make large enough payments towards the back rent to cure your default within a reasonable period of time. The sooner you can cure your default, the more likely a court will approve your Chapter 13 Plan. There are downsides to filing a bankruptcy. But it may be better than losing your federal housing assistance.

If you cannot work out a repayment agreement with your landlord, immediately talk to an attorney about filing a Chapter 13 bankruptcy. If possible, file your bankruptcy before your landlord gets a judgment against you. At the least, you must file your Chapter 13 case within five days of the entry of any judgment, or you will not be allowed to assume your lease.

Once you file a bankruptcy, your landlord cannot do more to evict you without the bankruptcy court's permission. To get permission, your landlord must file a motion for relief from the automatic stay. A bankruptcy court should not lift the stay as long as your Chapter 13 Plan can be confirmed and the landlord suffers no financial loss.

Beware: Laws Change

This publication provides general information concerning your rights and responsibilities. It is not intended as a substitute for specific legal advice. The information in this publication is current as of September 2012. Laws change. Talk with a lawyer. Make sure that the information in this publication is current.

What if I need legal help?

CLEAR is Washington's toll-free, centralized intake, advice and referral service for low-income people seeking free legal assistance with civil legal problems. 

  • Outside King County: Call 1-888-201-1014 weekdays from 9:10 a.m. until 12:25 p.m. CLEAR works with a language line to provide interpreters as needed at no cost to callers. If you are deaf or hard of hearing, please call 1-888-201-1014 using your preferred TTY or Video relay service.

  • King County: Call 211 for information and referral to an appropriate legal services provider Monday through Friday from 8:00 am – 6:00 pm. You may also call (206) 461-3200, or the toll-free number, which may be useful when calling from a pay phone, 1-877-211-WASH (9274). 211 works with a language line to provide interpreters as needed at no cost to callers. Deaf and hearing-impaired callers can call 1-800-833-6384 or 711 to be connected to a relay operator at no cost, who will then connect them with 211. Information on legal service providers in King County may also be accessed through 211's website at www.resourcehouse.com/win211/.

  • Persons 60 and Over: Persons 60 or over may call CLEAR*Sr at 1-888-387-7111, regardless of income.

 

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