The COVID-19 pandemic continues its spread across the United States. As the number of Americans dying from the virus continues to increase, the economic impacts of the virus continue to take a toll on the economy. Small businesses have been particularly hard-hit.  While the federal response to COVID-19 has left many small businesses in the lurch, in Washington, state and local government measures have attempted to help small businesses survive the pandemic by preventing evictions due to nonpayment of rent.

On July 31, 2020, Seattle Mayor Jenny Durkan signed an Executive Order extending the ban on evictions for commercial tenants in the City of Seattle for nonpayment of rent through December 31, 2020. As I wrote in this June blog post discussing the mayor’s earlier extension of the moratorium on commercial evictions through August 1, these emergency orders banning evictions during the pandemic are a rare instance of residential tenant protections being applied to commercial tenants.  Commercial leases do not generally include the same protections for tenants as residential leases. In addition, under the terms of the rent moratorium, commercial tenants cannot simply skip rent payments during the eviction moratorium and resume payments after it ends, absent an agreement with the landlord to that effect. Business tenants who cannot make all or a portion of their rent payments during the moratorium still must pay back the missed rent, enter into a payment plan, or otherwise attempt to negotiate an agreement with the landlord regarding payment of any missed rent under a commercial lease.

The basis of this prohibition on evictions is Mayor Durkan’s March 16, 2020 Emergency Order prohibiting eviction of commercial tenants for non-payment of rent, targeted to benefit small businesses and nonprofit organizations, in response to the economic impacts of COVID-19. Washington Governor Jay Inslee has enacted similar statewide prohibitions on evictions for nonpayment of rent for commercial and residential tenants, most recently extended through October 15, 2020.

What happens if a Washington landlord attempts to evict tenants for nonpayment of rent while these emergency orders prohibiting such evictions are in effect? Last week, Washington’s Attorney General filed a lawsuit against an Idaho property management company for allegedly proceeding with evictions for nonpayment of rent by residential tenants in Spokane County, in violation of Governor Inslee’s proclamations prohibiting such evictions. While the evictions in the lawsuit involved low-income residential tenants, the Complaint filed by the state can be read as a roadmap of what not to do for both residential and commercial landlords under the current prohibitions on evictions for nonpayment of rent.

Have a question regarding your commercial lease and COVID-19 relief measures? We’ll happy to help!

This post is for informational purposes and does not contain or convey legal advice. The information herein should not be used or relied upon in regard to any particular facts or circumstances without first consulting with an attorney.

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