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Bob Ferguson

AGO 2019 No. 7 - Dec 30 2019
Attorney General

LANDLORD AND TENANT—MILITARY—Termination Of A Lease By A Service Member

1. Service members may generally terminate a residential lease following retirement or separation orders, if certain conditions are met. It is less clear whether service members may terminate a lease after receiving orders to move into government quarters.

2. Termination of a residential lease by a service member generally becomes effective upon at least 20 days’ notice to the landlord.

December 30, 2019

Major General Bret Daugherty
The Adjutant General
State of Washington
Military Department
Camp Murray, WA   98430-5000

 

Cite As:

AGO 2019 No. 7

Dear Major General Daugherty:

            By letter previously acknowledged, you requested our opinion on two questions concerning the ability of service members to terminate a residential lease to comply with military orders. Since you requested our opinion, the legislature passed Engrossed Substitute H.B. 1138 (Laws of 2019, 66th Leg., Reg. Sess., ch. 23) amending the relevant provisions of the Residential Landlord Tenant Act, which went into effect July 28, 2019. In light of these amendments we have revisited and reanalyzed your questions, which we have paraphrased as follows:

1. Under RCW 59.18.220, as amended by ESHB 1138, may a service member terminate a residential lease to comply with retirement orders, separation (from active duty) orders, or orders requiring the service member to move into government quarters?

2. Under RCW 59.18.220, as amended by ESHB 1138, what is the effective date of the lease termination?

BRIEF ANSWERS

            1. Service members may generally terminate a residential lease to comply with retirement or separation orders if the service member’s home of record before entering the military was thirty-five miles or more from the location of the rental premises. It is significantly less clear whether a service member can terminate a lease after receiving retirement or separation orders if

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their pre-service home of record is within thirty-five miles of the rental property, or if they receive orders to move into government quarters.

            2. In general, termination is likely effective on the date specified in the notice, so long as the tenant provides a minimum of twenty days’ notice prior to termination.

FACTUAL BACKGROUND

            In 2003, Congress and the Washington State Legislature concurrently passed legislation to allow members of the armed forces (service members) to terminate residential leases with greater flexibility. In Washington, the legislature passed the Armed Forces–Tenancy Termination Bill, which amended provisions of the Residential Landlord Tenant Act. Substitute S.B. 5044 (Laws of 2003, 58th Leg., Reg. Sess., ch. 7).[1] As passed by the legislature in 2003, RCW 59.18.220(2)(b) provided:

            Any tenant who is a member of the armed forces, including the national guard and armed forces reserves, or that tenant’s spouse or dependent, may terminate a tenancy for a specified time if the tenant receives reassignment or deployment orders. The tenant shall provide notice of the reassignment or deployment order to the landlord no later than seven days after receipt.

The term “reassignment or deployment orders” was undefined and the date of termination was not specified in statute. As you state in your letter, this lack of clarity resulted in landlord tenant disputes, which hindered service members’ ability to mobilize or return to civilian life and exacerbated an already stressful time in service members’ lives.

            During the 2019 legislative session, the legislature enacted ESHB 1138, which sought to clarify the provisions of RCW 59.18.220(2). In the first sentence of subsection (2), ESHB 1138 replaced the term “reassignment” with the term “permanent change of station.” ESHB 1138 § 3(2). The bill defined “permanent change of station” to mean:

(a) Transfer to a unit located at another port or duty station; (b) change in a unit’s home port or permanent duty station; (c) call to active duty for a period not less than ninety days; (d) separation; or (e) retirement.

ESHB 1138 § 1(33) (emphases added), codified at RCW 59.18.030(19).

            In the second sentence of the subsection, the bill also added the following language addressing how the service member may terminate the lease:

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Before terminating the tenancy, the tenant, or that tenant’s spouse or dependent, shall provide written notice of twenty days or more to the landlord, which notice shall include a copy of the official military orders or a signed letter from the service member’s commanding officer confirming any of the following criteria are met:

            (a) The service member is required, pursuant to a permanent change of station orders [sic], to move thirty-five miles or more from the location of the rental premises;

            (b) The service member is prematurely or involuntarily discharged or released from active duty;

            (c) The service member is released from active duty after having leased the rental premises while on active duty status and the rental premises is thirty-five miles or more from the service member’s home of record prior to entering active duty;

            (d) After entering into a rental agreement, the commanding officer directs the service member to move into government provided housing;

            (e) The service member receives temporary duty orders, temporary change of station orders, or active duty orders to an area thirty-five miles or more from the location of the rental premises, provided such orders are for a period not less than ninety days; or

            (f) The service member has leased the property, but prior to taking possession of the rental premises, receives change of station orders to an area that is thirty-five miles or more from the location of the rental premises.

ESHB 1138 § 3(2).

            As discussed below, these six criteria seem to both narrow and broaden the circumstances under which a service member may terminate a residential lease, providing further clarification but also potential confusion.

While these criteria generally require written notice from a service member before terminating a lease on the specified grounds, Washington law also includes an exception to that requirement. “Any tenant who is a member of the armed forces, including the national guard and armed forces reserves, or that tenant’s spouse or dependent, may terminate a rental agreement with less than twenty days’ written notice if the tenant receives permanent change of station or deployment orders that do not allow a twenty-day written notice.” RCW 59.18.200(1)(b).

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ANALYSIS

1. Under RCW 59.18.220, as amended by ESHB 1138, may a service member terminate a residential lease to comply with retirement orders, separation (from active duty) orders, or orders requiring the service member to move into government quarters?

            Under RCW 59.18.220, as recently revised, it is now clear that a service member may terminate a residential lease when issued retirement or separation orders if the service member’s home of record before entering the military was thirty-five miles or more from the location of the rental premises. It is significantly less clear whether a service member may terminate a residential lease when issued retirement or separation orders and the service member’s home of record before entering the military was within thirty-five miles of the location of the rental premises. It is similarly unclear whether a service member may terminate a residential lease to comply with orders requiring the service member to move into government quarters if the service member is directed to do so after entering into the lease agreement.

            As discussed above, ESHB 1138 amends RCW 59.18.220 to allow service members to terminate a lease upon receipt of “permanent change of station” (PCS) or deployment orders, which are defined to include retirement and separation orders. ESHB 1138 §§ 1(33), 3(2). This language seemingly clearly states when and how a service member may terminate a lease. However, the amended statute also includes new conditions to effectuate the lease termination, which include: (1) written notice of twenty days or more (unless the orders make that impossible, RCW 59.18.200(1)(b)), and (2) a copy of the military orders or a signed letter from the commanding officer confirming that one of the six criteria are met. ESHB 1138 § 3(2), codified at RCW 59.18.220(2). These criteria seem to both narrow and broaden the circumstances under which a service member may actually terminate a lease beyond receipt of “permanent change of station or deployment orders.” ESHB 1138 § 3(2).

            As an example of the narrowing, criteria (a) states that the PCS order must also require the service member “to move thirty-five miles or more from the location of the rental premises[.]” ESHB 1138 § 3(2)(a). By contrast, as an example of the broadening, criteria (d)-(f) state that a service member may terminate a lease upon receipt of an order that is not a PCS or deployment order. Specifically, based on the criteria, a service member may terminate a lease by providing military orders or a letter from their commanding officer confirming that “[a]fter entering into a rental agreement, the commanding officer [has] direct[ed] the service member to move into government provided housing[.]” ESHB 1138 § 3(2)(d). Likewise, based on the criteria, a service member could also terminate a tenancy upon receipt of “temporary duty orders” to an area thirty-five miles or more from the rental premises if the order is for a period of not less than ninety days. ESHB 1138 § 3(2)(e). Further, if the service member has entered the lease and not yet taken possession, but receives “change of station orders” to a location more than thirty-five miles away, the service member may terminate the lease. ESHB 1138 § 3(2)(f). Neither “temporary duty orders” nor “change of station orders” are defined by the amended statute.

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            The narrowing and broadening in the statute create significant ambiguity and make it difficult to provide across-the-board answers to your questions. In particular, the statute is ambiguous as to what would happen where the first sentence appears to be satisfied but the second does not, and vice versa, specifically: (1) where a service member receives orders that would qualify as a “permanent change of station or deployment,” but do not appear to meet any of the six notice criteria in RCW 59.18.220(2); and (2) where a service member receives orders that appear to meet one of the six notice criteria in RCW 59.18.220(2), but do not appear to qualify as a “permanent change of station or deployment.” We therefore start with parts of your question we think have clear answers before moving to areas where the answers are less clear.

            Under the statutes as amended, it seems very clear that a retirement or separation order now allows a service member to terminate a lease early if “the rental premises is thirty-five miles or more from the service member’s home of record prior to entering active duty[.]” RCW 59.18.220(2)(c). In that circumstance, the service member has clearly experienced a “permanent change of station,” because the statutes define “permanent change of station” to include “retirement” and “separation.” RCW 59.18.030(19). The service member is also able to give the type of notice contemplated by the statute, because the service member has been “released from active duty after having leased the rental premises while on active duty status and the rental premises is thirty-five miles or more from the service member’s home of record prior to entering active duty[.]” RCW 59.18.220(2)(c). This much seems straightforward.

            Unfortunately, the statutory language makes it nearly impossible to address other circumstances contemplated by your question with any certainty. Specifically, if a service member receives retirement or separation orders and the service member’s home of record before entering the military was within thirty-five miles of the location of the rental premises, it is unclear what the statute allows. In that circumstance, the service member has experienced a “permanent change of station” under the statutory definition, RCW 59.18.030(19), but cannot give the type of notice contemplated by RCW 59.18.220(2), because their circumstances do not meet any of the criteria listed. Similarly, if a service member is ordered “to move into government provided housing” but not deployed or transferred to a different base, then they appear not to have experienced a “permanent change of station or deployment,” but they could give notice that meets one of the listed criteria. RCW 59.18.220(2). This discrepancy would benefit from legislative clarification. In the meantime, we will do our best to address how a court might analyze these situations.

            One way that a court might resolve this ambiguity is by finding that the first sentence of RCW 59.18.220(2) as amended by ESHB 1138 is intended to be a generic rule, while the second sentence sets forth the actual circumstances under which a service member may terminate a lease. This resolution would be based on the idea that when interpreting conflicting statutes, “[a] specific statute will supersede a general one when both apply.” Kustura v. Dep’t of Labor & Indus., 169 Wn.2d 81, 88, 233 P.3d 853 (2010) (quoting Waste Mgmt. of Seattle, Inc. v. Utils. & Transp. Comm’n, 123 Wn.2d 621, 630, 869 P.2d 1034 (1994)). This rule of construction has been applied when an inconsistency is within the same statute. RadLAX Gateway Hotel, LLC v. Amalgamated Bank, 566 U.S. 639, 646, 132 S. Ct. 2065, 182 L. Ed. 2d 967 (2012) (applying the general/specific rule to harmonize two conflicting subsections within the same statute). Here, the first sentence of

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the amended statute generally states that a service member who receives PCS or deployment orders may terminate a lease. But the second sentence generally sets forth with specificity how to terminate a lease: with a minimum of twenty days’ notice and a copy of the orders that comply with certain criteria. The criteria set forth the circumstances for termination of the lease with far greater specificity than the first sentence. Thus, a court could find that the more specific second sentence will supersede the more general first sentence.

            This interpretation arguably also best gives meaning to the language of the amended statute. “The legislature is presumed not to include unnecessary language when it enacts legislation.” McGinnis v. State, 152 Wn.2d 639, 645, 99 P.3d 1240 (2004). Here, the bulk of the statutory language added by ESHB 1138 consists of the six criteria. An interpretation that would allow for termination with any PCS order, even if none of these criteria were met, would render the bulk of the amended statute meaningless. Thus, reading the first sentence as general and the second as the specific, operative section arguably best gives meaning to the amended statute as a whole.

            That said, a strong argument could be made that treating the notice criteria as the key determinants of eligibility puts the cart before the horse. The statute says quite clearly that “[a]ny tenant who is a member of the armed forces . . . may terminate a tenancy for a specified time if the tenant receives permanent change of station or deployment orders,” RCW 59.18.220(2), and it specifically defines what counts as a “permanent change of station,” RCW 59.18.030(19). It would be very odd for the legislature to then modify who is eligible in specifying how the service member must notify their landlord. It would be especially odd because no written notice is required at all if the service member’s orders “do not allow a twenty-day written notice.” RCW 59.18.200(1)(b).

            We cannot say with any certainty how a court would resolve this ambiguity. That said, in general, RCW 59.18 is “strictly construed in favor of the tenant.” Randy Reynolds & Assocs., Inc. v. Harmon, 193 Wn.2d 143, 156, 437 P.3d 677 (2019) (citing Hous. Auth. of City of Seattle v. Silva, 94 Wn. App. 731, 734, 972 P.2d 952 (1999)). Our best guess is therefore that, in general, courts will excuse service member tenants from a lease in situations where they either: (1) have received an order that qualifies as a “permanent change of station or deployment,” RCW 59.18.220(2); or (2) meet one of the six listed criteria in RCW 59.18.220(2).

            We regret that we cannot give more certain guidance about some of the circumstances you ask about.

2.         Under RCW 59.18.220, as amended by ESHB 1138, what is the effective date of the lease termination?

            ESHB 1138 amended the provisions of RCW 59.18.220(2) to clarify how a service member may terminate a lease. The relevant provision prior to amendment by ESHB 1138 allowed a member of the armed forces to terminate a tenancy upon receipt of reassignment or deployment orders and only required that “[t]he tenant shall provide notice of the reassignment or deployment order to the landlord no later than seven days after receipt.” Former RCW 59.18.220(2). Because

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the termination and notice language did not relate to one another, the statute was understandably confusing to service member tenants and landlords trying to determine when the termination took effect.

            ESHB 1138 amends the statute to state: “((The tenant shall provide notice of the reassignment or deployment order to the landlord no later than seven days after receipt)) Before terminating the tenancy, the tenant . . . shall provide written notice of twenty days or more to the landlord . . . [.]” ESHB 1138 § 3(2). The act goes on to set forth what information must be included in that notice. (The law also contains an exemption from the twenty-day written notice requirement “if the tenant receives permanent change of station or deployment orders that do not allow a twenty-day written notice.” RCW 59.18.200(1)(b)).

            In general, the legislature likely intended for the termination to be effective on the date stated in the notice so long as that date is at least twenty days after the notice is provided to the landlord. See, e.g., State v. Garcia, 179 Wn.2d 828, 836, 318 P.3d 266 (2014) (“The legislature is presumed to intend the plain meaning of its language.” (quoting State v. Gibson, 16 Wn. App. 119, 127, 553 P.2d 131 (1976))). This conclusion is further bolstered by looking at the practical effect of the word “termination” in the prior subsection of the statute, RCW 59.18.220(1), which sets forth the general standard for when leases for specified time are terminated. That statute provides that “the tenancy shall be deemed terminated at the end of such specified time.” RCW 59.18.220(1). In this context, the termination is effective immediately once the term of the lease is up. Here, the practical effect of the language is that if twenty days’ notice is provided, the lease is terminated on the date specified by the tenant after that twenty-day period. This construction best gives effect to the plain meaning of the language of the statute and properly balances notice to the landlord while giving the service member flexibility in choosing their date of termination to best allow them to comply with military orders. Importantly, the statute also contains an exemption from the twenty-day written notice requirement “if the tenant receives permanent change of station or deployment orders that do not allow a twenty-day written notice.” RCW 59.18.200(1)(b). In that circumstance, it seems the legislature wanted the tenant to be able to terminate a lease on whatever date they specified after receiving such orders.

            We trust that the foregoing will be useful to you.

ROBERT W. FERGUSON
Attorney General

R. JULY SIMPSON
Assistant Attorney General

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[1] The Armed Forces–Tenancy Termination Bill also amended the Manufactured/Mobile Home Landlord-Tenant Act, RCW 59.20.090.