Capitol

The Capitol Building is seen Monday, Jan. 8, 2018 in Olympia.

Washington could become the first state in the country to provide a right to legal representation for low-income tenants facing eviction in housing court.

The measure is part of a Senate bill introduced last week that pairs temporary tenant protections aimed at staving off mass evictions with permanent changes to ensure tenants have equal access to the housing court system.

"If I've learned anything from the past ten months, it's that state policies to help ensure renters can stay in their homes and landlords can pay their bills during a public health crisis are inadequate," said Sen. Patty Kuderer, Chair of the Senate Housing and Local Government Committee and one of the bill's six Democratic sponsors, at a hearing on Wednesday.

More than 17,000 eviction cases are filed every year in Washington courts, and only about 8% of those tenants have legal representation, according to a wide-ranging University of Washington study that looked at statewide data from housing courts (known in Washington as "unlawful detainer" cases) between 2004-2017.

The most frequent outcome of those cases is tenants losing their homes.

The pandemic and Gov. Jay Inslee's statewide moratorium on evictions has greatly slowed — though not entirely stopped — that process. Inslee's order is set to expire on March 31, the same day as the federal CDC moratorium, which President Joe Biden extended on his first day in office.

When that happens, more than 175,000 Washington households that are currently behind on rent, according to the Census Bureau's latest tally, will be at risk of eviction.

Unlike in criminal cases, where the U.S. Supreme Court affirmed in Gideon vs. Wainwright that the state must appoint a lawyer if a defendant cannot afford one, civil cases entail no such constitutional right to defense.

Attorneys from across the state who represent tenants in housing court testified on Wednesday that even when the facts are on their side, tenants who represent themselves in court are often evicted anyway because they don't know how the legal system works.

If passed, the bill would require the state to appoint a lawyer prior to the first hearing for all "indigent" tenants — in this case broadly defined to include anyone who earns less than 200 percent of the federal poverty level or is simply unable to afford the anticipated costs.

The bill also would require courts to seal eviction records unless a judge rules in favor of a landlord. Studies have shown that having an eviction on your record makes it very difficult to get into housing in the future.

Initial estimates by the Office of Civil Legal Aid show it would cost the state close to $13 million in the first year and about $11.5 million in subsequent years to hire enough attorneys, assuming that about 80% of tenants will qualify for legal aid. The program would entail contracting with lawyers to work with local branches of Northwest Justice Project and county-level volunteer legal services such as Tacoma Pro Bono.

History of laws on right to counsel

New York City in 2017 became the first jurisdiction in the United States to guarantee legal representation to low-income tenants facing eviction. Since then, San Francisco, Baltimore, Philadelphia, Newark, Cleveland, and Boulder have all followed suit, but no states have made such promises.

Prior to the passage of New York's law, the city had been gradually increasing funding for tenant legal representation. When that process began in 2013, just 1% of tenants in housing court were represented by a lawyer.

By 2019, the percentage of tenants with access to a lawyer increased to 38%. Even with the program's yet-incomplete rollout — it is being implemented in phases by zip code — the effects have been dramatic: Evictions in New York declined by 41% since 2013, according to a report on the program by the city's Office of Civil Justice.

Four other states have introduced similar legislation in 2021: Nebraska, Maryland, South Carolina, and Indiana.

The state of Massachusetts, while it did not legislate a right, invested $12.3 million this past October in providing legal aid for tenants and homeowners facing eviction. This followed the expiration of a statewide moratorium on evictions, after which more than 4,000 eviction cases were filed in the subsequent month-and-a-half — a look at what might happen if Washington, a state with a similar population (and similarly hot housing market) were to let evictions fully resume.

No-cause evictions

The bill also contains multiple sections that would provide additional protections for renters after the declared state of emergency in Washington ends. It would expand the required process for landlords to offer individualized repayment plans without late fees and refer tenants to a local Dispute Resolution Center for mediation before making attempts to evict. Only if tenants refuse or default on repayment plans could landlords initiate the eviction process.

There's some help for landlords, too — the bill also directs the Department of Commerce to allow landlords to apply directly for the next round of federal rental assistance. Washington is poised to receive $500 million of the $25 billion in rent aid approved by Congress in December, but it's unclear when it will be distributed.

Gov. Inslee has also proposed an additional $164 million for rent aid in his budget proposal, and a separate bipartisan bill in the House of Representatives calls for $600 million in rent assistance, which would be funded from the states' budget stabilization reserve.

The provision most discussed at the Senate bill's hearing last week, however, was a freeze on 20-day notices, also called no-cause terminations. Under Washington's landlord-tenant law, a landlord can terminate a month-to-month lease at any time, without providing a reason, by issuing a 20-day notice to vacate. While termination is different from eviction, if tenants do not comply with the notice within 20 days, they can then legally be evicted.

The proposed bill would prohibit landlords from issuing 20-day notices for two years after Gov. Inslee's proclaimed state of emergency ends, unless the landlord intends to sell or occupy the unit, or if they already live there with the tenant.

More than 60 people testified at the hearing on Wednesday. With two exceptions, dozens of landlords and representatives of rental housing industry groups testified against the bill, which some likened to an extension of Gov. Inslee's current eviction moratorium. Many landlord cited a small number of tenants they call "elective non-payers," whom they believe can afford to pay rent but are exploiting the moratorium.

Meanwhile, even tenants who are current on their rent testified that they still fear they'll be evicted after the governor's moratorium expires. One Spokane tenant said his landlord of two years refused to renew his lease in December, meaning he could be issued a 20-day no-cause notice at any point.

Several cities in Washington have passed legislation that require "just-cause" for landlords to terminate leases, including Burien, Federal Way, and Seattle, which passed its ordinance in 1980. The states of California, New Jersey, and New Hampshire also have statewide "just-cause" laws, and Oregon's law protects tenants who've been in their unit for longer than one year from having their leases terminated without cause.

Bills to permanently address no-cause terminations were introduced in the 2019 and 2020 legislative sessions, but failed to advance.

Kuderer on Wednesday called the bill "a work in progress."

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