Under Washington's amended landlord-tenant statute, when can a service member terminate a residential lease, and what is the effective date of that termination?

Plain-English summary

Major General Bret Daugherty, the Adjutant General of the Washington Military Department, asked the AG to make sense of the 2019 amendments to Washington's service-member lease-termination statute. Engrossed Substitute House Bill 1138 had rewritten RCW 59.18.220(2), which had been chronically unclear since the Legislature first enacted it in 2003. The 2019 rewrite introduced a defined term ("permanent change of station") and a list of six specific notice criteria, but the two new pieces did not line up cleanly. The questions were (1) when service members may terminate a lease under retirement, separation, or government-quarters orders, and (2) what the effective date of termination is.

The clear cases. A retirement or separation order qualified for early termination if the rental was 35 miles or more from the service member's pre-active-duty home of record (RCW 59.18.220(2)(c)). That fit both halves of the new statute: the order qualified as a "permanent change of station" (because PCS includes retirement and separation under the new RCW 59.18.030(19)), and the service member could give the kind of notice the statute contemplates.

The unclear cases. Two categories sat in the gap between the two halves of the rewritten statute:

1. Retirement or separation when the pre-service home of record was within 35 miles of the rental. The first sentence of RCW 59.18.220(2) said any PCS triggered the right to terminate, and PCS included retirement and separation. But the second sentence required the service member to give notice fitting one of six criteria, and none of the six clearly covered this scenario.

2. Orders to move into government quarters issued after the lease was signed. This fit one of the six criteria (RCW 59.18.220(2)(d)) but did not fit the PCS definition because the service member was not transferring or separating.

The AG laid out two competing readings courts might adopt and declined to predict outcomes with confidence. The "specific over general" canon (Kustura; RadLAX) suggests courts could treat the second-sentence criteria as the operative test, supplanting the first sentence's broader trigger. The "no surplusage" canon (McGinnis) cuts the other way: if the criteria are exclusive, the careful PCS definition is doing no work. The AG's best guess was that courts would construe RCW 59.18 strictly in favor of tenants (Randy Reynolds & Assocs.), letting service members terminate when either prong is satisfied.

Effective date. The new statute requires "written notice of twenty days or more to the landlord," with the orders or a commanding officer's letter attached. Termination is effective on the date the tenant specifies in the notice, so long as that date is at least 20 days after the notice was provided. There is an exception in RCW 59.18.200(1)(b) for orders that don't allow 20 days' notice, in which case the tenant may terminate on the date specified.

Currency note

This opinion was issued in 2019. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Common questions

Q: What is "permanent change of station"?
A: As defined by ESHB 1138 in RCW 59.18.030(19): transfer to a unit at another port or duty station, change in a unit's home port or permanent duty station, call to active duty for at least 90 days, separation, or retirement. The 2003 version used the term "reassignment," which had been undefined and a frequent source of disputes.

Q: What are the six notice criteria in RCW 59.18.220(2)?
A: They are six different fact patterns under which a service member can attach orders or a commanding officer letter to support early termination: (a) PCS orders requiring a 35+ mile move, (b) premature or involuntary discharge or release from active duty, (c) post-active-duty release where the rental is 35+ miles from the pre-service home of record, (d) commanding officer directs the service member to move into government housing after the lease was signed, (e) temporary duty / temporary change of station / active duty orders 35+ miles from the rental for 90+ days, (f) post-lease pre-occupancy change of station orders 35+ miles from the rental.

Q: What was the gap the AG identified?
A: Two scenarios where the broad PCS definition and the narrow notice criteria do not match. Retirement or separation with a pre-service home of record within 35 miles of the rental fits the PCS definition but not any of the six criteria. Government-quarters orders issued after the lease fit criterion (d) but do not fit the PCS definition because the service member is not transferring or separating.

Q: Which reading did the AG predict courts would adopt?
A: The AG declined to give a confident answer because Washington courts had not addressed the new statutory language. The opinion offered two interpretations and noted that the strict-construction-for-tenants rule from Randy Reynolds & Assocs. v. Harmon would tend to let service members terminate if either prong was satisfied. That is the AG's "best guess," not a holding.

Q: When does the lease actually end?
A: Generally, on the date the tenant specifies in the notice, provided that date is 20 or more days after the notice is delivered. The exception in RCW 59.18.200(1)(b) lets the tenant terminate sooner when orders do not allow 20 days' notice.

Q: What documentation does the landlord get?
A: Written notice from the tenant containing one of the six fact patterns, plus either a copy of the official military orders or a signed letter from the service member's commanding officer attesting that the relevant criterion is met (RCW 59.18.220(2)).

Q: Does this apply to mobile-home park tenancies?
A: The 2003 act amended both RCW 59.18 and the Manufactured/Mobile Home Landlord-Tenant Act (RCW 59.20.090). The 2019 amendments addressed by this opinion were to RCW 59.18 specifically. Mobile-home tenants should consult the parallel provisions of RCW 59.20.

Q: What about the National Guard and Reserves?
A: The statute applies to "any tenant who is a member of the armed forces, including the national guard and armed forces reserves," so members of those components are covered. The opinion was requested by Washington's Adjutant General precisely because Guard members had been running into landlord-tenant disputes after activations.

Background and statutory framework

In 2003, Congress (the Servicemembers Civil Relief Act) and the Washington Legislature simultaneously moved to give military tenants more flexibility to break residential leases when ordered to relocate. The Washington version (Substitute S.B. 5044) became RCW 59.18.220(2) and used "reassignment or deployment orders" as the trigger for termination. Because "reassignment" was undefined and the date of termination was not specified, the provision generated a steady stream of landlord-tenant disputes.

ESHB 1138 in 2019 rewrote the trigger and added structure. It substituted "permanent change of station" for "reassignment" and added a defined PCS term in RCW 59.18.030(19). It introduced a specific notice requirement (20 or more days, written, with orders or commanding officer letter attached) and a list of six criteria the orders must meet. The drafting tried to combine a generous trigger (PCS) with rigorous notice (six criteria) but left mismatch zones where the two halves did not clearly align.

Washington's general statutory-construction canons applied to the new text. Kustura and RadLAX support reading specific provisions as governing in case of conflict with general ones. McGinnis says no statutory language should be rendered superfluous. Randy Reynolds & Assocs. holds that RCW 59.18 must be strictly construed in the tenant's favor. The AG synthesized these by predicting that courts would tilt toward tenant-friendly readings in the gap zones, but flagged that legislative clarification would be the surer path.

Citations and references

Statutes:
- RCW 59.18 (Residential Landlord-Tenant Act)
- RCW 59.18.030(19), .200, .220 (service-member termination)
- RCW 59.20.090 (Manufactured/Mobile Home Act)
- ESHB 1138 (Laws of 2019, ch. 23)
- SSB 5044 (Laws of 2003, ch. 7)

Cases:
- Kustura v. Dep't of Labor & Indus., 169 Wn.2d 81, 233 P.3d 853 (2010)
- RadLAX Gateway Hotel, LLC v. Amalgamated Bank, 566 U.S. 639 (2012)
- McGinnis v. State, 152 Wn.2d 639, 99 P.3d 1240 (2004)
- Randy Reynolds & Assocs., Inc. v. Harmon, 193 Wn.2d 143, 437 P.3d 677 (2019)
- Hous. Auth. of City of Seattle v. Silva, 94 Wn. App. 731, 972 P.2d 952 (1999)

Source

• Landing page: https://www.atg.wa.gov/ago-opinions/termination-lease-service-member

Original opinion text

Attorney General Bob Ferguson

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.