here is an email I intend to send to several Washington law reform groups. In a nutshell, Governor Inslee's eviction moratorium comes with two exceptions, the owner's intent to sell, or owner's intent to personally occupy. While his requirement that they state such intent under penalty of perjury sounds nice, a review of the realities indicates the threat of being charged with perjury is so indescribably improbable that the whole purpose of making such a declaration "under penalty of perjury" has no actual teeth.
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I was wondering whether your agency ever brought up the question of how absurd it would be for a dishonest landlord to fear the "penalty of perjury" required as part of the two exceptions the eviction moratorium in Inslee's March 18 order. In short, declaring an "intent" under oath is so utterly ephemeral and subjective that it would be literally or practically impossible to falsify sufficiently as to give any cop probable cause to arrest, or to give any prosecutor sufficient grounds to charge any landlord with the crime of perjury.
Inslee's March 18 order allows two exceptions to the eviction moratorium; landlord intent to sell, or landlord intent to personally occupy:
Landlords, property owners, and property managers are prohibited from serving or enforcing, or threatening to serve or enforce, any notice requiring a resident to vacate any dwelling or parcel of land occupied as a dwelling, including but not limited to an eviction notice, notice to pay or vacate, notice of unlawful detainer, notice of termination of rental, or notice to comply or vacate. This prohibition applies to tenancies or other housing arrangements that have expired or that will expire during the effective period of this Proclamation. This prohibition does not apply to emergency shelters where length of stay is conditioned upon a resident’s participation in, and compliance with, a supportive services program. Emergency shelters should make every effort to work with shelter clients to find alternate housing solutions. This prohibition applies unless the landlord, property owner, or property manager (a) attaches an affidavit to the eviction or termination of tenancy notice attesting that the action is necessary to respond to a significant and immediate risk to the health, safety, or property of others created by the resident; or (b) provides at least 60 days’ written notice of the property owner’s intent to (i) personally occupy the premises as the owner’s primary residence, or (ii) sell the property. Such a 60-day notice of intent to sell or personally occupy shall be in the form of an affidavit signed under penalty of perjury, and does not dispense landlords, property owners, or property managers from their notice obligations prior to entering the property, or from wearing face coverings, social distancing, and complying with all other COVID19 safety measures upon entry, together with their guests and agents. Any eviction or termination of tenancy notice served under one of the above exceptions must independently comply with all applicable requirements under Washington law, and nothing in this paragraph waives those requirements.
See here
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First, declaring an "intent" under penalty of perjury is practically pointless since the factual truth of the "intent" is so subjective as to be impossible to falsify to the degree necessary to meet the "beyond a reasonable doubt" standard in a criminal trial. In other words, if a landlord had no intent to sell, but stated he did under penalty of perjury anyway, there is no rational basis for such dishonest person to have the least bit of fear that his lie might ever be discovered and him prosecuted, still less than any 12-person jury would be unanimous about what was really going on in his mind at the second he signed his statement under penalty of perjury!
Second, the statute of limitations for perjury is 3 years for felony, 2 years for gross misdemeanor and 1 year for misdemeanor. RCW 9A.72.020 ff, RCW 9A.04.080(1)(i, j, k). Many sales of homes take longer than this, so if the dishonest landlord simply declined all offers for the next three years, he or she will have ensured that the statute of limitations now bars any possible criminal prosecution.
Third, any dishonest landlord would know that because of the Corona Virus, court cases have been severely backlogged, thus making very unlikely the prospect of some prosecutor deciding to put more pressure on this already backlogged system by charging somebody with the crime of perjury, a crime far less serious than, say, rape or murder. So the "under penalty of perjury" matter simply doesn't carry the sobering inducement to truth and threat of jail that it used to. I declare under penalty of perjury that I intend to eat a taco next Tuesday. LOL
Fourth, perjury has no relation to somebody changing their mind later, it is only concerned with whether the declarant knew the declared fact was false at the time they signed it under penalty of perjury. It would be literally impossible to prove, beyond a reasonable doubt as a criminal trial would require, that the landlord, at the time of signing, did not have an intent to sell. Even if the prosecutor could produce another court document the landlord signed earlier the same day saying "i have no intent to sell the premises", the landlord could simply trifle that within the 5 hours between the time he signed those two documents that day, he changed his mind. It is laughable to think that any reasonable 12 person jury would be unanimous in deciding what his true mental state was at the time he signed the "intent to sell" Declaration. The threat of a perjury conviction is nothing short of laughable, thus justifying the question of why Governor Inslee required landlords wishing to evict tenants to state an intent to sell under penalty of perjury. I declare under penalty of perjury that I intend to sell my dvd player. LOL, how the fuck would THAT ever be falsified "beyond a reasonable doubt"?
a) when they will be placing the property on the market, so a dishonest landlord with no intent to sell could state an intent to sell under penalty of perjury anyway, then defend his never selling in the next three years (the time the statute of limitations for felony and misdemeanor perjury runs out) with the argument that the order never required him to place the property on the market at any time.
b) what price they will be asking. So a dishonest landlord with no intent to sell could state an intent to sell under penalty of perjury anyway, then defend his never selling in the next 3 years (statute of limitations) with the argument that the order didn't prohibit him from declining fair offers from potential buyers with whom he had a personality conflict.
c) if they end up not selling, why they never ended up selling. In which case the landlord could refute a charge of perjury by saying that he was not required by the Order to explain why he might decline any fair offers.
b) WHEREAS an intent to sell, when declared under penalty of perjury. is nearly impossible to falsify enough to meet the "beyond a reasonable doubt" standard in a criminal trial, given that it is by definition an intent and thus 100% mental and thus virtually unfalsifiable, and
c) WHEREAS society has not yet figured out the secret of mindreading, the only way the Courts can avoid concluding that Governor Inslee’s two exceptions allowing evictions lead to absurd, strained or unlikely results is to construe the Order as also requiring that the following conditions be met by any landlord declaration under penalty of perjury their intent to sell.
d) The Affidavit showing intent to sell must state that the property will be advertised for sale to the public within 30 days after the tenants are moved out, unless the Declarant intends to remodel or demolish before selling. If there is intent to demolish, demolition must be completed within 30 days after the owner declares the intent to sell.
e) Where the owner intends to remodel before selling, the Affidavit showing intent to sell must state that the remodel will begin within 30 days after the tenants are moved out, and will be completed and ready for sale not more than 4 months later. Inability to complete the work or obtain funding for such work shall not be a defense to a failure to complete the alleged remodel within 5 months of the day the tenants were moved out.
f) When the property is placed up for sale, the owner is prohibited from taking it off the market for any reason until it is actually sold. Intent to make improvements and thus boost the fair market value shall not be a defense. Any such improvements must take place between the time the tenants are vacated/evicted and the end of the above-cited 4 month period.
g) The Affidavit showing intent to sell must state the methods of advertising intended to be used, including but not limited to the services of any realtor.
h) The owner must hire an independent third-party property appaiser to appraise the property, and the appraised amount must be stated in the Affidavit along with the appraiser’s name, address, phone number and license number.
i) The price stated in any advertisement of the property shall remain the same until the property is sold.
j) Inability to pay advertising and/or remodel costs shall not be a defense to a charge of perjury. Inability to access existing funding to pay for advertising and/or remodel costs shall not be a defense to violations of this paragraph.
k) If the property is not sold within 2 years of the date it is placed for sale, there shall be a rebuttable assumption that the declared intent to sell constituted the crime of perjury.
Fifth, Inslee's Order doesn't require the landlord to declare under penalty of perjury other facts that would be critically necessary to give teeth to the threat of a jail for perjury conviction that is supposed to impose itself on the Declarant's mind as a sobering reality. Inslee's order neither expresses nor implies that landlords or owners who declare intent to sell under penalty of perjury, have to state:
a) when they will be placing the property on the market, so a dishonest landlord with no intent to sell could state an intent to sell under penalty of perjury anyway, then defend his never selling in the next three years (the time the statute of limitations for felony and misdemeanor perjury runs out) with the argument that the order never required him to place the property on the market at any time.
b) what price they will be asking. So a dishonest landlord with no intent to sell could state an intent to sell under penalty of perjury anyway, then defend his never selling in the next 3 years (statute of limitations) with the argument that the order didn't prohibit him from declining fair offers from potential buyers with whom he had a personality conflict.
c) if they end up not selling, why they never ended up selling. In which case the landlord could refute a charge of perjury by saying that he was not required by the Order to explain why he might decline any fair offers.
d) how the house to be sold will be advertised. Hence, a dishonest landlord with no intent to sell could state an intent to sell under penalty of perjury anyway, then defend his never selling within the next three years (the time the statute of limitations runs out) by saying any implication in the Order that intent to sell result in advertisement of the property for sale, was fulfilled when he took out a single ad in the Jerkwater Gazette for a single day. The landlord could also fulfill any implied advertising requirement by making a sale offer to a friend by email, a friend whom he knows probably won't purchase. The Order's implication of a required sale advertisement wouldn't require more effort than this, an effort that any dishonest landlord would gladly fulfill.
Since the plain wording of Inslee's order carries the force of statutory law, and Courts are forbidden from deriving Legislative intent from plain wording if doing so would lead to an absurd, strained or unlikely result ("This court will avoid an absurd result even if it must disregard unambiguous statutory language to do so." Roake v. Delman, 408 P. 3d 658, 668 (2018)), then the Court could use the excuse of "judicial construction" to read back into Inslee's wording the critical facts necessary to make the threat of perjury real, but that would involve an awful lot of added verbiage. here's what I propose, as minimally sufficient to cause property owners who invoke the "intent to sell" exception, to regard the threat of a perjury conviction as something other than laughable:
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a) WHEREAS, the COVID pandemic has increased the likelihood of certain types of landl
ords being willing to commit perjury to get rid of tenants;a) WHEREAS, the COVID pandemic has increased the likelihood of certain types of landl
b) WHEREAS an intent to sell, when declared under penalty of perjury. is nearly impossible to falsify enough to meet the "beyond a reasonable doubt" standard in a criminal trial, given that it is by definition an intent and thus 100% mental and thus virtually unfalsifiable, and
c) WHEREAS society has not yet figured out the secret of mindreading, the only way the Courts can avoid concluding that Governor Inslee’s two exceptions allowing evictions lead to absurd, strained or unlikely results is to construe the Order as also requiring that the following conditions be met by any landlord declaration under penalty of perjury their intent to sell.
d) The Affidavit showing intent to sell must state that the property will be advertised for sale to the public within 30 days after the tenants are moved out, unless the Declarant intends to remodel or demolish before selling. If there is intent to demolish, demolition must be completed within 30 days after the owner declares the intent to sell.
e) Where the owner intends to remodel before selling, the Affidavit showing intent to sell must state that the remodel will begin within 30 days after the tenants are moved out, and will be completed and ready for sale not more than 4 months later. Inability to complete the work or obtain funding for such work shall not be a defense to a failure to complete the alleged remodel within 5 months of the day the tenants were moved out.
f) When the property is placed up for sale, the owner is prohibited from taking it off the market for any reason until it is actually sold. Intent to make improvements and thus boost the fair market value shall not be a defense. Any such improvements must take place between the time the tenants are vacated/evicted and the end of the above-cited 4 month period.
g) The Affidavit showing intent to sell must state the methods of advertising intended to be used, including but not limited to the services of any realtor.
h) The owner must hire an independent third-party property appaiser to appraise the property, and the appraised amount must be stated in the Affidavit along with the appraiser’s name, address, phone number and license number.
i) The price stated in any advertisement of the property shall remain the same until the property is sold.
j) Inability to pay advertising and/or remodel costs shall not be a defense to a charge of perjury. Inability to access existing funding to pay for advertising and/or remodel costs shall not be a defense to violations of this paragraph.
k) If the property is not sold within 2 years of the date it is placed for sale, there shall be a rebuttable assumption that the declared intent to sell constituted the crime of perjury.
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Here's hoping Inslee will incorporate these changes and declare them retroactive...or that the Courts will recognize this wording must be read back into his Order so that the plain wording doesn't force them to arrive at an absurd result.
Barry
