More than 171,000 Washington households are behind on rent, according to the latest data from the U.S. Census Bureau. In normal times, every one of them could be issued a notice to vacate today, and face eviction in court in a matter of weeks.
That’s not happening right now because Gov. Jay Inslee enacted a moratorium on evictions by executive order in March. That order expires at the end of the year, and Inslee is not expected to extend it, as he’s done numerous times before.
Some cities like Olympia have put in place a patchwork of emergency renter protection laws that will outlast the moratorium, but for others, the new year presents a looming crisis that some have referred to as the “eviction cliff.”
Beyond the humanitarian concern, it’s also a problem for Washington’s courts. County Superior Courts, which handle eviction cases — known as “unlawful detainers” in Washington — simply cannot process that many cases. Most are already severely backlogged with criminal cases after suspending jury trials and modifying hearing procedures for social distancing.
Instead, six Washington counties are trying something totally different: mediation.
Searching for compromises
Dispute Resolution Centers have long dealt with landlord-tenant issues, but under the new Eviction Resolution Program, landlords will be required to participate in a mediation session before filing for eviction. The plan, developed by the Superior Court Judges Association along with representatives from Rental Housing Industry associations, civil legal aid lawyers, and advocates, aims to strike a compromise that avoids court entirely.
“Once you get to court, there’s a winner and there’s a loser. Someone is either going to be evicted or they’re not going to be evicted,” said Thurston County Superior Court Judge Chris Lanese.
“[DRC mediators] can find in-between solutions for partial rent payments or other creative things that I wouldn’t be able to do when sitting on the bench. That’s not really necessarily an appropriate role for a judge or commissioner to play but it’s the epitome of what this project is hoping to accomplish: the landlord gets something they wouldn’t get necessarily, the tenant gets something they wouldn’t get necessarily, and everyone’s better off.”
The program is being piloted in six counties — Clark, Thurston, Pierce, King, Snohomish and Spokane — that collectively see 80% of the state’s eviction filings.
While the ideal outcome is to keep the tenants in their homes, that may not always be feasible. In cases where a tenant owes too much to realistically repay, for example, the best solution may be a negotiated exit that gives the tenant some time to find new housing.
“There may be occasions where it’s just not going to work to stay,” said Jody Suhrbier, executive director of Dispute Resolution Center of Thurston County. “What they can still come up with is a reasonable timeline to move out. And avoiding even just the filing is such a gift to that tenant, because then they can be planful, they can identify where they want to go and come up with a plan to get there without those hardships and those hurdles of actually having the [eviction] filing on their record and potentially a contentious relationship with their former landlord.”
Even when cases are thrown out or a judge finds in favor of the tenant, having an eviction filing on your record can prove a major barrier to finding housing.
Hallway mediation
This type of mediation already exists — it happens all the time in the hallways of Thurston County Superior Court, with volunteer attorneys or paralegals from the Thurston County Volunteer Legal Services (TCVLS) cutting deals with landlords and their attorneys outside the courtrooms.
“That’s a lot of times what happens at Housing Justice Project is they figure out a way to get the [tenant] out, and the key is to avoid the eviction,” said Rachael Lundmark, executive director of TCVLS. “Because once the eviction goes on your record, it’s going to haunt you.”
The pilot program provides funding to TCVLS to hire additional contracted attorneys to counsel tenants, as well as to train dispute resolution mediators.
The difference between those court hallway negotiations and dispute mediation is starting the process before the parties even get to court, before the case is even filed. That makes a difference because currently volunteer legal services struggles to even find tenants who’ve been served prior to them showing up at the courthouse.
“When we’re looking [at the docket], sometimes the only information we have is an address for the tenant, we can’t find a phone number. I’ll sometimes do Facebook searches,” Lundmark said. “It’s pretty frustrating to know that someone’s getting evicted and have no way to get in touch with them other than sending them a flier in the mail.”
No civil right to defense
Unlawful detainers are civil cases and tenants have no right to legal representation like they would in a criminal case.
Only about 8% of Washington tenants have legal representation in unlawful detainer cases, according to University of Washington study that looked at statewide data from 2004-2017.
The goal with the pilot program is to get tenants access to a lawyer, and get it much earlier in the process than they normally would.
“That’s about as close as the state of Washington has ever gotten to creating a legal right to council in these cases,” said Jim Bamberger, director of the Office of Civil Legal Aid.
Bamberger’s office provides the majority of funding for statewide legal aid programs such as the Northwest Justice Project, and it also funds Housing Justice Projects like the one in Thurston County. As Lundmark described, that usually involves meeting tenants outside the courtroom on Friday mornings and having maybe one hour to learn their situation and advise them.
The pilot program is looking at the problem from a court operations standpoint, not a policy standpoint, Bamberger said. The courts don’t have the power to change Washington’s landlord-tenant laws — only the legislature can do that — so the scope of what they can do is limited.
‘Reasonable’ repayment
One of the factors not addressed by the the court’s program that might be taken up by the legislature is defining what a “reasonable” repayment plan looks like. Gov. Inslee’s executive order states that landlords must offer them but does not specify any details on what “reasonable” means. The city of Olympia passed an ordinance in October that both extends a ban on evictions for nonpayment of rent through 2021 and creates a three-month period for tenants to pay what they owe.
“This is where I can empathize with landlords — it’s really hard for landlords to deal with the crazy quilt of regulatory rules — every municipality has its timeline, every county has its timeline,” Bamberger said.
Until some clarity is issued on what “reasonable” means, the only tangible leverage mediators have to get landlords to the table is counties’ remaining rent assistance funds, known as the Eviction Rent Assistance Program (ERAP).
“The theory here is the earlier we get the ERAP people to the table, the tenant to the table, the landlord to the table, we can deal with those three months of arrearages, and then figure out for months that are not covered with rent assistance funding, is there a way to provide a reasonably doable payment plan,” Bamberger said.
Currently the pilot program is only budgeted through December, at a cost of $985,000. Part of the reason is because judges were expecting evictions to resume on Oct. 14, before Inslee extended his moratorium again, and they wanted to have the program ready in November. It’s possible the legislature could vote to continue funding it into 2021.
