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In the Washington state (outside of King county), assuming there is an existing month-to-month lease agreement, is there anything in the real estate law to prevent a landlord from imposing a recurring fee that amounts to 60% of the rent? Suppose the fee is for the purpose of continuing the agreement and it is given 30 days prior to the date when the fee is to be instituted.

Is there anything in the law which would force the view that this fee is a form of rent increase rather than a fee?

If it were a fee and it did not become a form of rent increase, would it create a separate liability unrelated to rent? Would imposing such a fee be an effective way to get around the laws and regulations surrounding rent?

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    I'm wondering when this would come up. I don't know Washington law, but usually in jurisdictions with rent control, the landlord must renew the lease unless they can evict for cause. In such a case the fee would simply be meaningless as the lease would renew whether you paid the fee or not. And if there is no rent control then the landlord can simply raise the rent, no need to call it a fee.
    – Nate Eldredge
    Oct 4, 2021 at 3:57
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    @NateEldredge that's why I excluded King county. To my knowledge, there is rent control in the city of Seattle (which is in King county), but not outside of it. Also, if a fee is not paid, but it is acceded to, then would it not create a separate liability? So a person not paying the fee, for many years, could be sued to recover it, could they not?
    – grovkin
    Oct 4, 2021 at 3:59
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    If there is rent control, then the landlord had nothing to offer in exchange for the fee, so why would the tenant have agreed to pay it? If there is no rent control, then again, why would the landlord not simply raise the rent?
    – Nate Eldredge
    Oct 4, 2021 at 4:44
  • @NateEldredge let's say a landlord "institutes" a fee unilaterally (after years of tenants being on a month-to-month rent) without seeking any consent from the tenants. And the tenants do not protest the fee, but they also do not pay it.
    – grovkin
    Oct 4, 2021 at 5:01
  • @NateEldredge wouldn't the tenants' continued payment of rent (without protesting the fee) amount to acceding to the fee?
    – grovkin
    Oct 4, 2021 at 5:11

1 Answer 1

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Under RCW 59.18.030(29),

"Rent" or "rental amount" means recurring and periodic charges identified in the rental agreement for the use and occupancy of the premises, which may include charges for utilities. Except as provided in RCW 59.18.283(3), these terms do not include nonrecurring charges for costs incurred due to late payment, damages, deposits, legal costs, or other fees, including attorneys' fees.

Per RCW 59.18.283(2)

Except as provided in RCW 59.18.410, the tenant's right to possession of the premises may not be conditioned on a tenant's payment or satisfaction of any monetary amount other than rent.

In other words, additional regular fees are disallowed. All recurring fees must be "rent" (but things like late fees, damages, attorney's fees which arise only occasionally are allowed). If a lease were to specify $2,000 as the rent and $1,000 as the "___fee", as a recurring charge it would still be considered to be $3,000 rent. One cannot get around the 60 day notice requirement of RCW 59.18.140(3a) (which says "a landlord shall provide a minimum of sixty days' prior written notice of an increase in the amount of rent to each affected tenant, and any increase in the amount of rent may not become effective prior to the completion of the term of the rental agreement") by calling it a "continuation fee". One does not need to get around rent control because per RCW 35.21.830,

The imposition of controls on rent is of statewide significance and is preempted by the state. No city or town of any class may enact, maintain, or enforce ordinances or other provisions which regulate the amount of rent to be charged for single-family or multiple-unit residential rental structures or sites other than properties in public ownership, under public management, or properties providing low-income rental housing under joint public-private agreements for the financing or provision of such low-income rental housing.

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  • Isn't a 60-day notice a Seattle requirement? I thought it was 30 days outside of Seattle. I am basing this on www.commerce.wa.gov (page 8).
    – grovkin
    Oct 4, 2021 at 5:15
  • I am having trouble reconciling the 2 statements here. On the one hand, "additional regular fees are disallowed." On the other hand, "'Rent' or 'rental amount' means recurring and periodic charges identified in the rental agreement for the use and occupancy of the premises, " Does that mean that a fee for the (let's call it for clarity) consideration of being on a month-to-month rent is disallowed because it's not explicitly made part of the rent? Or does it become a de facto part of the rent because it's a charge?
    – grovkin
    Oct 4, 2021 at 5:25
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    @grovkin under the law as quoted here, the enforceability of the recurring continuation fee depends on whether it is "identified in the rental agreement."
    – phoog
    Oct 6, 2021 at 5:46
  • I just looked it up, and RCW 59.18.283(2) goes on to say "However, this does not foreclose a landlord from pursuing other lawful remedies to collect late payments, legal costs, or other fees, including attorneys' fees." So it seems to me that other fees may be imposed, but collection of those fees cannot be pursued by conditioning access to the premises on the payment of those fees. Am I wrong in my reading here?
    – grovkin
    Oct 27, 2021 at 6:48
  • That refers to legal judgments ordered by the court or arbitrator, which could include contractual late fees (which are allowed). It does not allow a landlord to exclude a tenant who hasn't paid court-ordered attorney fees (the landlord would have to petition to enforce the order, which the courts would do). The sentence means "even though you can only charge rent, you can still take legal action to collect other legally-allowed fees". And a "continuation fee" is not legally allowed, unlike late fees or attorney fees.
    – user6726
    Oct 27, 2021 at 15:18

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