Despite Eviction Moratorium, Renters Are Still Being Evicted

by Erica C. Barnett

(This article was originally published by PubliCola and has been reprinted under an agreement.)

Renters across Washington state have existed in a kind of financial and legal limbo since mid-March, when Governor Jay Inslee issued the first statewide eviction moratorium, declaring that the temporary measure would "help reduce economic hardship and related life, health, and safety risks to those members of our workforce impacted by layoffs and substantially reduced work hours or who are otherwise unable to pay rent as a result of the COVID-19 pandemic."

At the time, no one knew how long the pandemic would continue or the impact it would have on the state and national economy. Since then, Inslee has extended the moratorium four more times, most recently in October, when he set a new expiration date of December 31.

But despite the moratorium, commonly referred to as an "eviction ban," renters are still being evicted. Last month, nearly 40 people were evicted through the court system in King County, up from just eight in April. (We know the numbers for King County because they're tracked by the King County Bar Association's Housing Justice Project, but a similar trend is almost certainly happening across the state). Added to that are an unknown number of people who are informally evicted through methods that, while not technically evictions, still have the same effect, their numbers never counted in the total of people forced to move — or made homeless — during a worldwide pandemic.

One reason more renters are being kicked out, tenant advocates say, is that Inslee has gradually added more and more exemptions to the "ban." Most consequentially, in June, Inslee added a section to the moratorium in June allowing landlords to give tenants' 60 days notice that they plan to sell a unit or move into it.

Jim Baumgart, a senior policy advisor to the governor, said the exemption is intended to help people who own multiple properties and need to move into one or sell "because they don't want to be a landlord anymore, or because their family's been materially affected by COVID and they need that money." For example, people in the military, who move around often, might need to move back to their hometown and have no choice but to move into a house they had been renting out, or a landlord who owned just one or two rental units might need to sell a property to stay afloat.

The Rental Housing Association of Washington, which represents rental property owners and has been critical of the eviction moratorium, argues that the sale or move-in exemption provides a necessary escape hatch for the smallest landlords. Kyle Woodring, RHA's director of government affairs, says the RHA has been hearing from "more people working through the process of selling their property" than usual, because their income (from rent or other sources) has dried up and "they need to get some cash out of that property."

"It's easy for local governments and state governments to protect tenants, and much harder to protect people who pay mortgages and the lending institutions, because those are generally federally regulated," Woodring said. "Short of giant bailouts, I think we're going to see more and more people looking to sell."

John Wolff, an attorney with the Northwest Justice Project who represents tenants in Eastern Washington, sees the exemptions Woodring praises as backdoor opportunities for landlords to get rid of tenants who aren't paying — and, in some cases, to get new, paying tenants in. "At some point, there must have been some pressure" from landlords, he says "saying, 'You've got to let us evict at least this subsection of tenants,' and the governor obviously gave in to that."

Although the moratorium was amended in October to require that landlords sign an affidavit stating that they plan to sell or move into a unit, Wolff said he's seen multiple "cases where a landlord has not in good faith planned to sell the place, and the only reason they wanted them out is because they were behind on rent." In one instance, Wolff said, a landlord said they planned to sell the property, then put out a "for rent" sign the day after the tenant moved out.

It's difficult to know exactly how often this happens. Washington State Attorney General Bob Ferguson's office, which takes complaints about unlawful evictions, doesn't proactively track every case, and the office tends to pursue larger, more headline-grabbing cases involving property management companies with hundreds of tenants rather than just a handful. "They've got to concentrate their resources where they can actually make some hay, like a really egregious violation [by] a big player that was violating a lot of people's rights," Wolff observed.

Dan Jackson, a communications consultant for Ferguson, told PubliCola that "if any landlord unlawfully evicts a Washingtonian by falsely asserting they intend to occupy or sell the property, but then does not, we would view that as an extremely serious violation of Washington law — and we would act accordingly."

Renters can also be kicked out for behavior that poses "significant and immediate risk to the health, safety, or property of others." This "behavioral" exemption has been tightened since the beginning of the moratorium, when landlords were only required to submit an affidavit to the state saying that an eviction "is believed necessary to ensure the health and safety of the tenant or other individuals," but advocates say it's still vague; the term "significant and immediate risk," for example, is not narrowly defined, particularly when it comes to property.

The attorney general's office maintains that landlords generally understand that the exemption is narrowly tailored. An official with the office who was authorized to speak on background gave the example of a tenant whose smoking impacted a neighbor with asthma as a situation that wouldn't rise to the level of "significant and immediate risk," and one where a person brandished a knife at a neighbor as one that would meet the standard. Jackson said that "landlords may not establish a significant and immediate risk to property based on circumstances that are not urgent in nature, such as conditions that were known or knowable to the landlord pre-COVID-19 but regarding which the landlord took no action."

The Housing Justice Project, which is not affiliated with the Northwest Justice Project, has been tracking evictions since shortly after the ban went into effect in March. They've noticed an unsurprising pattern: As exemptions get added to the moratorium, landlords take advantage of them. In April, when tenant behavior was the only legal reason for evicting a tenant, King County saw eight evictions. In October, after Inslee added the intent to sell and intent to occupy exemptions, there were 38. Of 135 eviction filings between April and October in King County, 38 were because the owner declared their intent to sell or occupy the unit; that number has risen steadily since the exemption went into effect in August, rising from seven that month to 19 in October.

Edmund Witter, the director of the Housing Justice Project, said that before the moratorium, it was unusual for tenants to be evicted because of their behavior. Now that landlords can't evict problem tenants as soon as they fall behind on rent, he said, the number of "behavioral cases" has spiked. "A lot of them have to do with some kind of personality conflict — an argument with the manager, or sometimes with other tenants," Witter said. "At the end of the day, a lot of them are about mental health."

As an example, another HJP attorney, Sebastian Stock, points to a case involving a tenant with mental illness who, when his symptoms went untreated, "had triggers that would cause him to yell at people or try to defend himself." Earlier this year, the tenant threw vinegar in a neighbor's face during an altercation. Even though the neighbor didn't want to press charges for assault, Stock said, the landlord decided to evict him on behavioral grounds.

In that case, the HJP argued successfully that the moratorium does not allow landlords to evict people based on a physical or mental disability — an explicit carveout that was added to Inslee's original executive order in April. But Stock says the attempted eviction was not an isolated incident. The tenant, whose rent was subsidized through the King County Housing Authority, hadn't paid rent in a few months, which Stock believes is the real reason his landlord wanted him out. "We see this with certain landlords down in South King County — they try to evict Section 8 tenants when the King County Housing Authority stops paying," Stock said.

Eviction hearings used to take place on the third floor of the King County Courthouse, just down the hall from the Housing Justice Project's crowded office. In the hallway, attorneys conferenced in hushed tones with clients they may have met for the first time that day, working out the terms of potential deals and running them over to the attorneys for their landlords in an endless circuit, trying to prevent eviction through a series of small compromises. Today, eviction hearings happen via cell phone, placing low-income tenants with less-than-perfect cell phone service, or limited English skills, at a particular disadvantage. And even when a case doesn't make it all the way to court, landlords hold the power to make life unpleasant for tenants they want out.

Jessica Lofgreen and Robert McCurdy live in Clarkston, a small town on the Idaho border, with three children. The couple, both students in their late 20s, say their dispute with their landlord started last summer, after Lofgreen began using chalk to write pro-Black Lives Matter graffiti on the sidewalk near their house. Although the dispute is both longstanding and complex, the issue that led to their initial eviction notice is simply: According to their landlord, they failed to water the roses and other plants on the property, causing thousands of dollars of property damage and making them eligible for eviction under the "significant and immediate risk to" property exemption in the moratorium.

Lofgreen said she was "dumbfounded" when the first three-day eviction notice appeared on their door. "She never gave us any warnings, so I started trying to maintain that area of the property, but she still kept putting out notices [to vacate]," Lofgreen said. "The language [on the notice] was, pretty much verbatim, what's in the exception in the moratorium," McCurdy added. Wolff, who represents the family, saw the notices. "Needless to say, I'm not convinced that not watering some roses and trees rises to the moratorium standard," he said.

In August, their landlord tried a different tack: She put up a "for sale" sign to indicate that she planned to sell the property and gave Lofgreen and McCurdy a notice that they needed to move out within 60 days. McCurdy said the sign didn't look particularly official. "She turned around a 'no trespassing' sign and wrote 'for sale' on the back of it and put it up behind a bush," McCurdy says. Although the property was never listed on any official listing site, such as Zillow or Realtor.com, the owner did put up a listing on Craigslist in October, asking more than $1 million for the property. (The posting has since been taken down). Zillow, which lists the property as off the market, values the same property at $281,000.

Moreover, Lofgreen said, the property where they live includes multiple houses, including one occupied by their landlord's elderly mother; selling the property, they say, would mean relocating a woman in her 90s in the middle of a pandemic. Since we first spoke in October, Lofgreen and McCurdy received a reprieve on two accounts. Their landlord dropped the property-damage case against them when they received rental assistance through a county program — suggesting, Wolff said, that the landlord's real issue was unpaid rent, not damage to her foliage.

The couple's landlord responded to multiple requests for comment by asking me for information about my sources. However, she did speak recently to the Lewiston Tribune, a paper in Idaho, complaining that some of her tenants "laughed in her face" when she asked them to pay and calling the eviction moratorium "cruel and unconstitutional."

Lofgreen and McCurdy have also asserted that they qualify to stay in their home under a less-used federal moratorium issued by the Centers for Disease Control, which includes a list of five standards that people who can't pay rent must meet to qualify. That moratorium has been widely criticized because it contains significant loopholes and requires tenants to jump through numerous legal hoops to qualify, and because it is not tied to any specific rental or mortgage assistance program that would help keep people in their homes once the moratorium ends.

Claims of property damage appear to be a common theme among post-eviction ban evictions. Stock, from the Housing Justice Project, represents a tenant in Kent whose landlord tried to evict him, along with his wife and young daughter, on the grounds that they had damaged his septic system "through overuse." The family, who had lived in the house for several years, told the judge who heard the case that they had complained about the septic system numerous times, but that the landlord refused to fix or replace it.

According to court documents, the landlord raised the septic system as an issue only after trying to evict his tenants over unpaid rent back in February, shortly before the moratorium took effect. "I don't think [the tenant] was able to catch up on what he owed, and once the landlord realized he wasn't going to get what he believed he was owed, he tried to get the court to assign liability for the septic tank failing to the tenant and eventually get a monetary judgment going against him," Stock said.

At one point, according to court documents, the landlord demanded that the tenant, who was already thousands of dollars behind on rent, put up a bond of more than $100,000, a requirement that by itself would cost the tenant thousands of dollars. This amount, the landlord claimed in court, would account for back rent, attorney's fees, and the cost of completely replacing his septic system.

After months of litigation, the tenants were able to stay in their home, and the landlords' attorneys effectively dropped their claim that the case was about the sewer system. The tenants are working to get rental assistance through the Housing Justice Project and the United Way of King County's Home Base program — a positive outcome, but hardly a permanent solution, since that funding comes from federal COVID relief dollars that expire at the end of the year.

Witter, with the HJP, says getting rental assistance out the door has been a race against time — one that involves applying for assistance, coordinating with landlords, and getting false denials overturned. The city and county set aside more than $40 million in federal funding for rental assistance to low-income tenants earlier this year, but that money only lasts until the end of the year, "and then, poof, it goes back to the federal government," Witter said, creating a deadline that has little to do with ongoing need.

"It's a disaster," Witter continued. "The reality is, nobody thinks $40 million is enough to help all the renters in crisis right now," and it's unclear that the county can get all the money out the door in the next two months. A similar statewide rental assistance program in Arizona made headlines earlier this year, when less than $1 million of $127 million in federal funding had reached landlords and renters three months after the program launched. "We were sounding the alarms back in April and May that this was going to be a problem," Witter said.

Tenant advocates believe the current system is flawed: It's stacked in favor of landlords, offers tenants few resources to navigate the byzantine legal system, and is based on a vaguely written executive order that Gov. Inslee keeps extending without offering a clear exit strategy when the moratorium ends, as it eventually must.

Woodring, with the RHA, also thinks the moratorium is flawed. And although part of his objection is that the order makes it "tremendously hard to remove anyone from a property," he also says the order makes it too difficult for landlords to discuss repayment plans with tenants now, rather than later, when the moratorium is lifted and tenants across the state could face eviction over months of unpaid rent.

The latest version of the moratorium allows landlords to offer tenants a "reasonable repayment plan" "based on the individual financial, health, and other circumstances of that resident," but does not clarify how landlords are allowed to discuss those circumstances, or come up with a payment plan, in a way that doesn't violate the order's ban on threatening tenants with eviction.

"We've been working with the governor's office to allow landlords to work with tenants to work out a reasonable repayment plan, but if we can't have any communication with the tenant about their financial situation, that just isn't possible," Woodring said. The order says the question of how landlords and tenants can communicate is "best addressed by legislation," which can't happen until after the state legislature reconvenes next year.

Unpaid rent has continued to accumulate as the pandemic drags on and the unemployment rate in Washington hovers just under 8%. To make matters worse for tenants, the most recent version of Inslee's order allows landlords to raise rents as soon as the moratorium is lifted, putting an even greater financial burden on renters who may be several months behind on rent already.

Currently, according to a survey by the Multifamily Housing Association, almost 12% of tenants are delinquent on their rent, up from less than 5% in March. According to the US Census Bureau's most recent survey data, nearly three in ten of Washington residents — 28.9% — say they are behind on their rent or mortgage to the extent that they are likely to face eviction or foreclosure in the next two months.

As that number continues to grow, federal and local relief funding will continue to be critical; this week, the Seattle City Council is discussing budget amendments that would partly restore funding for COVID-19 relief that Mayor Jenny Durkan allocated for other purposes in her 2021 budget proposal. But local and state dollars won't be sufficient to prevent a massive wave of evictions (and, to a lesser extent, foreclosures) when the moratorium ends, whether that's this coming December or sometime next year. That, advocates for landlords and tenants agree, will take federal action and funding.

In the meantime, the moratorium is set to expire in seven weeks. If the governor renews it, it will likely contain new restrictions on eligibility and new requirements for tenants to prove they truly can't pay their rent. Meanwhile, on two successive days last week, the state health department reported the highest-ever numbers of confirmed daily COVID cases.

Erica Barnett has covered Seattle politics for more than two decades.

Featured image attributed to phil_g on Creative Commons; used here under a CC BY-SA 2.0 license.

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