IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
SHERWOOD AUBURN LLC,
JOEL PINZON and ROSA MENDEZ,
Appellants. DIVISION ONE
DWYER, J. When a landlord has accepted the financial benefits of
certain federal programs, Congress is authorized pursuant to Spending Clause 1
to impose on that landlord rules, regulations, or restrictions
premised on participation in such a program. The Supremacy
Clause 2 of the Constitution makes such laws paramount to those enacted by
state legislatures. In the federal CARES Act, 3 Congress mandated that landlords
who have accepted certain federal financial benefits must provide to tenants
living in covered housing units a 30-day notice to cure the rental payment
deficiency or vacate the premises before the landlord may commence an eviction
1 U.S. CONST. art. I, § 8, cl. 1. 2 U.S. CONST. art. VI, cl. 2. 3 See Pub. L. No. 116-136, 134 Stat. 281 (2020); see also 15 U.S.C. § 9058. Here, the notice provided to tenants Joel Pinzon and Rosa Mendez by
landlord Sherwood Auburn LLC, did not comply with the federal CARES Act.
The landlord nevertheless filed an unlawful detainer action against the tenants.
Because Sherwood Auburn did not comply with the CARES Act notice
requirement, the superior court was without the authority to issue a writ of
restitution or enter judgment against Pinzon and Mendez. Accordingly, we
Pinzon and Mendez began renting an apartment owned by Sherwood
Auburn in May 2019. They lived in the apartment with their four young children.
Pinzon has worked in construction his whole life. During the COVID-19
pandemic, his workplace closed and he was unable to find work. Pinzon and
Mendez fell behind on their rent.
On December 21, 2021, Sherwood Auburn served on Pinzon and Mendez
a 14-Day Notice to Pay Rent or Vacate the Premises. The notice provided:
You must pay the total amount due to your landlord within fourteen (14) days after service of this notice or you must vacate the premises. Any payment you make to the landlord must first be applied to the total amount due as shown on this notice. Any failure to comply with this notice within fourteen (14) days after service of this notice may result in a judicial proceeding that leads to your eviction from the premises.
(Emphasis added.) On the same day, Sherwood Auburn, an entity with a
YOU ARE HEREBY NOTIFIED, pursuant to the obligations of the CARES Act as passed by the United States Congress, that the Landlord has served a notice to vacate, or a notice to comply or vacate on you pursuant to the laws of the State of Washington, and in accordance with the requirements of emergency orders promulgated by Governor Jay Inslee, and that if a court so orders in any unlawful detainer action, you may be required to vacate the residential unit in not less than 30 days from the date of this notice. (Emphasis added.)
On February 12, 2022, Sherwood Auburn served Pinzon and Mendez with
an eviction summons and complaint for unlawful detainer. The landlord
thereafter filed in the superior court a complaint for unlawful detainer and order to
show cause. Pinzon and Mendez were ordered to appear at a hearing before the
court on March 10, 2022, to show cause why the court should not issue a writ of
restitution restoring to Sherwood Auburn possession of the apartment and enter
judgment against the tenants.
Following the show cause hearing, a superior court commissioner issued
a writ of restitution and entered judgment against Pinzon and Mendez. At the
law and the state law b thus found that, in
compliance with the state
order. On May 6, 2022, a superior court judge denied the motion, thus adopting
the ruling of the commissioner. Pinzon and Mendez appeal. II Pinzon and Mendez assert that, pursuant to the federal CARES Act,
Sherwood Auburn was required to provide a 30-day notice to pay rent or vacate
the premises prior to commencing an unlawful detainer action. Indeed, the plain
language of the CARES Act mandates that a landlord that has received certain
federal financial benefits must provide such a notice to tenants residing in
housing units covered by the Act. Sherwood Auburn nevertheless contends that
the CARES Act simply precludes state trial courts from enforcing eviction actions
on a timeline not in keeping with the CARES Act requirements. This
with the authority pursuant to which Congress enacted the statute. Accordingly,
we agree with Pinzon and Mendez and hold that, pursuant to the CARES Act,
Sherwood Auburn was required to provide a clear 30-day notice to pay rent or
vacate the premises.
State v. Ramer, 151
Wn.2d 106, 113, 86 P.3d 132 (2004). Accordingly, we review the ruling of the
superior court, not the ruling of the commissioner. Faciszewski v. Brown, 187
Wn.2d 308, 313 n.2, 386 P.3d 711 (2016). Under RCW 2.24.050, the findings
and orders of a court commissioner not successfully revised become the orders
and findings of the superior court. In re Det. of L.K., 14 Wn. App. 2d 542, 550, 471 P.3d 975 (2020) (quoting Maldonado v. Maldonado, 197 Wn. App. 779, 789,
391 P.3d 546 (2017)).
Ecology v. Campbell & Gwinn, LLC, 146 Wn.2d 1, 9, 43 P.3d 4 (2002). In
interpreting a federal statute, our s intent.
Kitsap County Consol. Hous. Auth. v. Henry-Levingston, 196 Wn. App. 688, 701,
, then [we]
, 146 Wn.2d at 9-10.
-Tenant Act of 1973 (RLTA), chapter
59.18 RCW, provides that a landlord may commence an unlawful detainer action
if a tenant breaches a rental agreement by failing to make timely rental
payments. RCW 59.18.130, .180(2). See Christensen v. Ellsworth, 162 Wn.2d
365, 370, 173 P.3d 228 (2007) created proceeding that provides an expedited method of resolving the right to
Christensen, 162 Wn.2d at 370-71. In so doing, it
FPA , 190 Wn. App. 666, 675,
Hous. Auth. of City of Everett v. Terry, 114 Wn.2d 558, 563-64, 789 P.2d 745 (1990).
or she continues in possession . . . after a default in the payment of rent, and
after notice in writing requiring in the alternative the payment of the rent or the
surrender of the detained premises . . . [and the request] has remained
uncompli see also RCW 59.18.650(2)(a). Thus, pursuant to Washington law, both notice
required before a tenant can be in the status of unlawful detainer. RCW
one opportunity to correct a breach before forfeiture of a lease under the
accelerated restitution Christensen, 162 Wn.2d at
371 (quoting Terry . . . be sufficiently
particular and IBC, LLC v. Heuft, 141
Wn. App. 624, 632, 174 P.3d 95 (2007).
The federal CARES Act, enacted by Congress in response to the
economic disruption resulting from the COVID-19 pandemic, provides protections
for tenants living in housing units owned by landlords that have received the
financial benefits of certain federal programs. 15 U.S.C. § 9058. The statute
applies to housing units
on properties with 15 U.S.C. § 9058(a)(1), (2)(B)(i). In addition to imposing a 120-day moratorium on eviction actions for
nonpayment of rent or other charges, 15 U.S.C. § 9058(b), the CARES Act
established a 30-day notice requirement, which provides that covered dwelling unit . . . may not require the tenant to vacate the covered
dwelling unit before the date that is 30 days after the date on which the lessor
§ 9058(c)(1). 4
Pinzon and Mendez assert that the CARES Act notice provision requires
n unequivocal 30-day notice
to pay rent or vacate the premises before the landlord may commence an
unlawful detainer action. In contrast, Sherwood Auburn contends that the
CARES Act simply prohibits state trial courts from evicting tenants during the 30-
day period following service of a pay or vacate notice required by state law.
Indeed, as Sherwood Auburn clarified at oral argument, its interpretation of the
preferred interpretation of the notice
4 The full text of this provision states: The lessor of a covered dwelling unit (1) may not require the tenant to vacate the covered dwelling unit before the date that is 30 days after the date on which the lessor provides the tenant with a notice to vacate; and (2) may not issue a notice to vacate under paragraph (1) until after expiration of the period described in subsection (b) [the 120-day eviction moratorium]. 15 U.S.C. § 9058(c). 5 Sherwood Auburn clarified its interpretation of the CARES Act notice provision at oral argument. According to Sherwood Auburn, the proper interpretation of the provision would urn asserts that the statute should be understood as providing that the superior court not the lessor may not require the tenant to vacate the covered dwelling unit before the date that is 30 days after the provision would merely preclude the superior court from enforcing a breach of a
lease agreement during the 30-day notice period. It would not preclude the
landlord from commencing an unlawful detainer action during that time.
The plain language of the statute, however, belies such an interpretation.
The CARES Act notice provision clearly prohibits the lessor (the beneficiary of
the federal financial assistance) not a state trial court from requiring a tenant
to vacate a covered housing unit prior to expiration of the notice period. The
lessor of a covered dwelling unit may not require the
tenant to vacate the covered dwelling unit before the date that is 30 days after
U.S.C. § 9058(c)(1) (emphasis added). Sprint Spectrum, LP/Sprint PCS v. City of Seattle, 131
Wn. App. 339, 346, 127 P.3d 755 (2006). Here, Congress unambiguously
30-day notice. 6
Moreover, Sherwood Auburn interpretation of the CARES Act notice
provision would render that provision meaningless. See Ballard Square Condo.
date on which the lessor provides the tenant wit Those are not the words that Congress chose. 6 -help methods to Gray v. Pierce County Hous. Auth., 123 Wn. App. 744, 757, 97 P.3d 26 (2004), Sherwood Auburn concludes that it is not the landlord but, instead, the superior court that requires a tenant to vacate. However, the fact that a landlord must follow lawful methods in evicting a tenant i.e., providing proper notice does not mean that it is the superior court that does so. r. Co., 158 Wn.2d 603, 610, 146 P.3d 914 (2006)
The purposes of the notice requirement in an
unlawful detainer action are to both notify the tenant of the alleged default and
allow for a period of time in which the tenant may cure the alleged breach or
vacate the premises. See RCW 59.12.030(3); see also Christensen, 162 Wn.2d
least one opportunity to correct a breach before forfeiture of a lease under the
accelerated restitution Terry, 114 Wn.2d at
569)). Indeed, only after the proper notice is provided and the cure period has
expired can the tenant be said to be unlawfully detaining the premises. See
Indigo Real Est. Servs., Inc. v. Wadsworth, 169 Wn. App. 412, 421, 280 P.3d 506
(2012) nant is in the status of unlawful detainer, the landlord may
the provisions of a lease agreement. Henry-Levingston, 196 Wn. App. at 699
[a] trial court cannot grant relief in an unlawful detainer action
If the CARES Act provision simply prevented the eviction of tenants for 30
days following notice, without providing tenants the ability to cure the breach or
vacate the premises during that period, the notice provision would be rendered
provides for a 14-day pay or vacate notice in residential tenancies, a landlord subject to the CARES Act would nevertheless be permitted to commence an
unlawful detainer action after 14 days. Thus, the CARES Act would provide no
additional protection for tenants.
Sherwood Auburn disputes this conclusion, asserting that, if the landlord
were permitted to commence an unlawful detainer action on the 14th day after
providing notice, tenants would nevertheless benefit from being permitted to
remain in the premises for an additional 16 days before being required to vacate.
This assertion reflects a misunderstanding of unlawful detainer law. Indeed,
service of the pay or vacate notice is the landlord requiring the tenant to quit the
premises. Only when the tenant refuses the demand to vacate the premises (or
to pay the rent deficiency) can the landlord commence an unlawful detainer
action. In other words, it is the landlord not the superior court that requires
the tenant to vacate the premises. The superior court simply enforces that
requirement if the tenant refuses.
In addition s authority to impose the CARES
Act notice requirement. In enacting § 9058, Congress acted pursuant to its
Cummings v. Premier Rehab Keller, PLLC,
___ U.S. ___, 142 S. Ct. 1562, 1568, 212 L. Ed. 2d 552 (2022). 7
7 congress shall have power to lay and collect taxes, duties, imposts and excises, to pay the debts and provide for the common defense and general w U.S. CONST. art. I, § 8, cl. 1. Congress acts pursuant to its spending power, it generates legislation much in
the nature of a contract: in return for federal funds, the [recipients] agree to
S.S. v. Alexander, 143 Wn. App. 75,
94-95, 177 P.3d 724 (2008) (internal quotation marks omitted) (quoting Davis v.
Monroe County Bd. of Educ., 526 U.S. 629, 640, 119 S. Ct. 1661, 143 L. Ed. 2d
Cummings, 142 S. Ct. at 1570 (quoting
Pennhurst State Sch. & Hosp. v. Halderman, 451 U.S. 1, 17, 101 S. Ct. 1531, 67
L. Ed. 2d 694 (1981)). Thus, only landlords that have accepted certain federal
financial benefits are subject to the mandates of § 9058. See 15 U.S.C. §
lthough Sherwood Auburn would
authority to enforce a lease agreement, it is only those landlords that have
accepted certain federal financial benefits on which Congress has the authority to
impose restrictions. 8
Sherwood Auburn further asserts that a conflict between § 9058(c) of the
-day notice requirement, RCW 59.12.030(3),
8 Sherwood Auburn does not address the constitutionality of its preferred interpretation of the notice provision, which would have Congress imposing limitations on the authority of state courts. See U.S. CONST. amend. X Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the strue a statute so as to uphold its Associated Gen. Contractors of Wash. v. State, ___ Wn.2d ___, 518 P.3d 639, 643 (2022). precludes imposition of a 30-day notice requirement. However, the Supremacy
Clause of our federal constitution 9 Armstrong v. Exceptional Child Ctr., Inc., 575 U.S.
320, 324, 135 S. Ct. 1378, 191 L. Ed. 2d 471 (2015) (quoting U.S. CONST. art. VI,
Armstrong, 575 U.S. at 324. Indeed, state courts are charged with a
passed pursuant to it are as much laws in the States as laws passed by the state
Howlett By & Through Howlett v. Rose, 496 U.S. 356, 367, 110 S.
Ct. 2430, 110 L. Ed. 2d 332 (1990). Accordingly, pursuant to the Supremacy
if the state law conflicts with
federal law due to impossibility of compliance with state and federal law or when
state law acts as an obstacle to the accomplishment of the federal purpose. Progressive Animal Welfare Soc v. Univ. of Wash., 125 Wn.2d 243, 265, 884
P.2d 592 (1994) (quoting ,
122 Wn.2d 299, 326, 858 P.2d 1054 (1993)).
Here, however, in enacting our stnotice requirements for residential
evictions, our legislature wisely envisioned circumstances in which federal
statutes would provide tenants with additional protections. Thus, the RLTA itself
9 The Supremacy Clause provides: This Constitution, and the laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every state shall be bound thereby, any thing in the Constitution or laws of any state to the contrary notwithstanding. U.S. CONST. art. VI, cl. 2. contemplates that federal notice requirements may supplant the 14-day notice to
pay or vacate required by state law. See RCW 59.18.057(3) (providing that the
- not abrogate any additional notice requirements to tenants as required by
additional notice requirements imposed on landlords by federal mandate,
Sherwood Auburn is incorrect that a conflict is created by the imposition of a 30-
day notice requirement.
Indeed, we have previously held that, when a landlord accepts the
financial benefits of a federal program, the federal protections provided to tenants
Indigo, 169 Wn. App. at 423. There, federal law required the landlord,
which had accepted the financial benefits of participation in the federal section 8
program, to prove good cause to terminate a tenancy. Indigo, 169 Wn. App. at
414. Notwithstanding that our state law did not require such proof, we held that
regulations in the state unlawful detainer action. Indigo, 169 Wn. App. at 414.
We reasoned that, until the landlord had proved good cause, the tenant could not
be found to be unlawfully detaining the premises. Indigo, 169 Wn. App. at 414.
Just as the parties to a lease may contract to allow additional time for compliance before a tenant may be found to have unlawfully detained the premises, so may a lease require something more than an immaterial breach of a lease provision to support such a determination. Similarly, where a landlord has accepted the substantial financial benefits that accompany participation in the section 8 program, a higher bar to a finding of wrongful occupation is imposed.
Indigo, 169 Wn. App. at 423 (citation omitted). 10 Thus, we concluded that,
program, Indigo, 169 Wn. App. at 422.
Here, the plain language of the CARES Act notice provision requires that
landlords subject to the act provide a 30-day notice to tenants prior to
commencing an unlawful detainer action. Sherwood Auburn has availed itself of
not wish to comply with the additional requirements imposed by Congress on
landlords that have accepted such benefits. RLTA explicitly provides
that federal law may require greater notice than that required by state law. RCW
59.18.057(3). Indeed, tenant protections provided by federal law, such as the
CARES Act notice requirement, Indigo, 169 Wn. App. at 423. Thus, pursuant
to the plain language of § 9058(c), landlords subject to the CARES Act by virtue
of their acceptance of certain federal financial benefits must provide a 30-day
10 Washington courts have repeatedly held that when a tenant is entitled to more notice than that provided by the unlawful detainer statute, a landlord can commence an unlawful detainer action only after affording the greater notice period. landlord for a notice period longer than the statutory period, he is entitled to the full time stated Cmty. Invs., Ltd. v. Safeway Stores, Inc., 36 Wn. App. 34, 38, 671 P.2d 289 (1983) (holding that unlawful detainer action could not be sustained when landlord filed the action 19 days after providing notice of default when the lease provided a 20-day opportunity to cure). See also Heuft, 141 Wn. App. at 629, 633 (vacating judgment against tenant when landlord provided less than the 10-day notice required by the lease). III
Pinzon and Mendez further assert that the notices provided by Sherwood
Auburn were misleading and contradictory and, thus, that the superior court was
without authority to determine that they were unlawfully detaining the premises.
In Washington, when nonpayment of rent is alleged, a tenant is liable for
unlawful detainer only after the landlord provides notice of the alleged default and
the requisite period to cure that default has expired. RCW 59.12.030(3). The
Cmty. Invs., Ltd. v.
Safeway Stores, Inc., 36 Wn. App. 34, 37-38, 671 P.2d 289 (1983). Moreover,
. . . be sufficiently particular and certain so as not to deceive or
Heuft, 141 Wn. App. at 632.
A landlord that commences an unlawful detainer action after providing
inadequately clear Hous. Auth. of City of Seattle v. Bin, 163 Wn. App. 367, 374, 260 P.3d 900
(2011). This is because, until the notice requirements are met, the tenant cannot
be said to be unlawfully detaining the premises. RCW 59.12.030(3); see also
Indigo, 169 Wn. App. at 421. Thus, when notice is deficient, the landlord cannot
prove a cause of action for unlawful detainer. Terry, 114 Wn.2d at 563-64 . an unlawful detainer action when a landlord has failed to comply with the relevant
Henry-Levingston, 196 Wn. App. at 699. When a landlord
files an unlawful detainer action after providing inadequate notice, which includes
failing to clearly set forth the requisite period to cure the alleged default, the
action must be dismissed. See, e.g., Heuft, 141 Wn. App. at 633 (vacating the
judgment entered in an unlawful detainer action because the landlord failed to
provide the cure period provided by the lease); Cmty. Invs., Ltd., 36 Wn. App. at
37-38 the landlord did not provide the required 20 days to cure the default).
Here, Sherwood Auburn served Pinzon and Mendez with two notices a
14-day pay or vacate notice pursuant to RCW 59.12.030(3), and an additional
- Pinzon and Mendez These notices did not
unequivocally inform Pinzon and Mendez that, pursuant to the CARES Act, they
had 30 days from the date of notice to cure the alleged nonpayment of rent or to
Heuft, 141 Wn. App. at 632. Thus, when the notice
provided does not accurately convey the correct time period to cure or vacate,
the notice is not sufficient. Heuft, 141 Wn. App. at 633 (landlord provided a three-day pay or vacate notice when lease provided for 10 days); Cmty. Invs.,
Ltd., 36 Wn. App. at 37-38 (landlord provided two conflicting notices, one
providing for 10 days to pay or vacate, and the other providing for the 20 days
required by the lease). Here, the conflicting notices provided by Sherwood
Auburn were misleading and equivocal and failed to adequately, precisely, and
correctly inform the tenants of the rights to which they were entitled. 11
Because Pinzon and Mendez were not afforded clear and accurate notice,
the superior court was without the authority to issue a writ of restitution or enter
judgment against them. 12 Accordingly, we remand for dismissal of the unlawful detainer action. 13
11 Sherwood Auburn incorrectly asserts that it was not required to provide any notice pursuant to the CARES Act, but argues that i Br. at 20. Indeed, Sherwood Auburn discloses in its briefing, superfluous notices and/or information to tenants in eviction notices, or otherwise, for no other reason than to keep eviction at 18. roviding superfluous information and notices to tenants he landlord tells us, Br. of at 19. may undermine the 12 When notice is inadequate in an unlawful detainer action, Washington courts have at See, e.g., Heuft procedures is jurisdictional, w Terry, 114 Wn.2d subject matter jurisdiction is authority In re Marriage of McDermott, 175 Wn. App. 467, 480, 307 P.3d 717 (2013) (internal quotation marks omitted) (quoting Marley v. Dep t of Labor & Indus., 125 Wn.2d 533, 539, 886 P.2d 189 (1994)). Indeed, the unlawful detainer statute itself provides that is that a party who files an [unlawful detainer] action after improper notice may not maintain such
action or avail itself of the Bin, 163 Wn. App. at 374. 13 Sherwood Auburn requests 59.18.410 and RCW 59.18.290. Because Sherwood Auburn is not the prevailing party, it is not entitled to such an award. Reversed and remanded.