Council votes ban on “winter evictions” out of committee

Thursday evening the City Council voted out of committee the proposed ban on winter evictions, after amending it to add back some conditions under which an eviction may proceed.

There were two amendments proposed. One was by Council member Pedersen, limiting the ban on evictions only to rental properties that received funding from the City of Seattle — according to Council staff that is about 17,000 properties, representing around 10% of the rental stock in the city. That didn’t pass, which is not surprising as it would draw a fairly arbitrary distinction between the housing where winter evictions are banned and those where it isn’t, and exclusing the majority of evictions. Council member Lewis, however, did point to this article in The Stranger from 2018 noting that the Seattle Housing Authority is notorious for evicting many of its tenants over small sums of money.

Council member Sawant offered the second amendment, which attempts to increase the likelihood that the bill will survive a legal challenge. It restructures the legal underpinnings of the ban on winter evictions by making the winter months a “defense to eviction” instead of directly codifying the ban. And it exempts from the ban  several of the 18 “just causes” listed in the city’s Just Cause Eviction ordinance, including those pertaining to illegal actions by either the tenant or the landlord. Preventing a landlord from evicting a tenant committing illegal acts, or from correcting the landlord’s own illegal acts (potentially by pulling a unit off the market) are sure-fire losers in court. That amendment passed.

The main issue with the bill still exists though: it prevents a landlord from evicting a tenant for failure to pay rent for up to five months. The city claims that, under the restructured bill, the tenant will still be liable for rent for the winter months, under the assumption that the landlord will be able to collect it at some future time (a big, unsubstantiated assumption), and that the eviction legal proceedings may still go forward but the court may not issue an actual eviction order from November through March. Some of the Council members at the committee hearing — including Sawant and Morales — voiced their hope that this would buy more time for the tenants to get out of arrears, in essence making this bill a stealthy retry of Sawant’s earlier bill to dramatically extend the eviction process itself — this time up to five months. To that end, the Council staff memo argues that this would only delay eviction proceedings, not prevent them altogether, by creating a new defense against an eviction order:

CB 119726 would amend the JCEO by adding a defense to eviction if it would result in vacating the housing unit at any time between November 1 and April 1. As noted previously, this does not prevent a landlord or property manager from moving forward with eviction proceedings, but instead provides a defense to the tenant if enforcement of any eviction order issued by King County Superior Court occurs between November 1 and April 1. In most cases, this would simply delay, rather than prohibit, physical eviction, providing time for the tenant to remedy the conditions leading to the pursuit of eviction and, if the landlord is willing, negotiate continued tenancy. When this defense requires that a landlord delay evicting tenant(s), the tenant(s) would still be responsible for paying rent during the delay.

If the full Council does approve this ordinance, it will certainly get challenged in court with a claim that it violates property rights by depriving landlords the economic value of their property. That will make for an interesting court case, with the city arguing that since the tenant is still liable for rent during the winter months it is merely delaying the economic gain, not denying it; and landlords arguing that if delaying landlords’ ability to collect rent for five months creates a financial hardship for them and potentially send them into arrears, then justice delayed is justice denied. The case law, which was recently rewritten by the state Supreme Court’s ruling on the city’s “First in Time” ordinance, says that violating a property owner’s rights requires depriving “all economic value” from the property. It doesn’t say whether that is all economic value forever,  or whether delaying the cash flow by five months (though not the accrual of liability for rent) is a deprivation of economic value.

There was some talk among the Council members that they also need to support small landlords who would be more financially vulnerable if they didn’t receive rent payments every months. However, at this point this is only talk; they didn’t amend the ordinance or put forth any other legislation to provide additional assistance to either landlords or tenants. Council member Lewis suggested that he would like to work on a further amendment that creates a mitigation fund for landlords, though he doesn’t understand what it would cost or where the money would come from. To no one’s surprise, this is one of the criticisms of the bill that the Washington Multi-Familly Housing Association, a trade association for landlords, has leveled in a letter to the City Council that it distributed to the media. It argues that rather  than banning evictions for five months of the year, the Council should beef up rental assistance programs.

The bill passed out of committee by a 3-0-1 vote, with Sawant, Morales and Lewis voting “yes” and Pedersen abstaining. It will not come up for a final vote before the full City Council until Monday, February 3rd, partly because Sawant is out of town next Monday, but also to give Council members time to consider proposing other amendments.

It’s unclear how the full Council will vote on this; while Lewis voted “yes” to move the bill out of committee, he voiced reservations about the scale of the bill’s impact and suggested that the full Council should discuss a more incremental approach, such as what Pedersen proposed in his amendment. Expect him, at the very least, to propose some additional amendments on February 3rd.

As an aside, Sawant continued her practice of inviting advocates to sit at the committee table while the committee marks up the bill — but only advocates friendly to her side. There were two at this hearing: Alycia Roberts of Nickelsville; and Jon Mannella, a board member of the Tenants Union of Washington State. Here’s Jon’s bio, from the Tenants Union site (emphasis mine):

Jon is a member of the Tenants Union who has volunteered countless hours for the Tenants Union. Jon is a graduate student at the University of Washington, where he studies equity in information access and ways to fight misinformation. Jon is also a member of Socialist Alternative and has volunteered with Seattle City Councilmember Kshama Sawant’s re-election campaign. Jon lives in Seattle with his wife Jackie and Pancake their elderly cat. Jon loves reading and playing video games in his free time. He holds a BA in Accounting and was a licensed CPA until 2019 and uses his skills to fight for a more just and equitable world.