Most of the tenants at show cause hearings have fallen behind on rent, said Housing Justice Project Managing Attorney Edmund Witter. Photo by Melissa Hellmann

Most of the tenants at show cause hearings have fallen behind on rent, said Housing Justice Project Managing Attorney Edmund Witter. Photo by Melissa Hellmann

The Last Stop Before Homelessness

How the odds are stacked against low-income tenants in the County’s eviction court system.

“I just want to pay the rent, man,” Deonna Kelley told her volunteer attorney in an exasperated Southern drawl on a late morning in early March. The two sat face-to-face in a vacant room in downtown Seattle’s King County Courthouse, deliberating a game plan for her show cause hearing scheduled later that morning. Kelley hunched over a chair, hair in black and auburn twists draped over her shoulders.

They’d met each other just about an hour beforehand, under trying circumstances. Kelley’s property manager claimed her staff had served the 35-year-old resident an eviction notice last December after she failed to pay that month’s rent. But Kelley said that she suffers from a mental disability, and that she was overwhelmed after her father had fallen into a coma in Tennessee. She had to rush back home to care for him that month, and claimed that she didn’t realize she was late on rent. Her Section 8 housing voucher covered most of her rent, and her disability payments paid the remaining $220. Because she routinely paid more than she needed to every month, Kelley believed that she had acquired enough credit to cover December’s rent. Moreover, Kelley said she’d never received a three-day notice to pay rent or vacate the property—as landlords are required to do before commencing an eviction lawsuit per a Washington statute—so she was prepared to fight her case in front of a commissioner.

As they made their way into the courtroom, Kelley and her volunteer attorney passed a line of people sitting on a bench outside of the legal advocacy nonprofit Housing Justice Project. The King County Courthouse can be a den of heartbreak, with people milling about the hallway in various states of distress. One woman silently sobbed, hands clasped over her eyes. Yet during her show cause hearing that day, the commissioner practiced clemency by allowing Kelley to walk out of the courtroom and back into her Lakeview Apartments unit once she paid the $842 in back rent.

It was a common case. Most tenants who are put through eviction proceedings have fallen behind on rent. But Kelley’s result was unique.

Most people at show cause hearings face a beleaguered court system in which the odds are stacked against low-income residents, argue housing-rights advocates. For starters, many tenants lack access to attorneys. Commissioners rarely grant them clemency, claiming that the unlawful detainer statute, which outlines the regulations on removing a tenant from a property, does not allow them to practice discretion. Washington tenants who are late on their rent payments can retain their apartment only if they’re on an unexpired lease and pay the full rent and legal fees within five days of an eviction notice.

“Once a tenant falls behind on the rent, regardless of the circumstances, there’s very limited ability of the tenant to be able to reinstate their tenancy or to be able to recover themselves after that,” said Housing Justice Project Managing Attorney Edmund Witter.

Most of the tenants that the voluntary attorneys see at their clinic are falling behind in rent because of a loss in their family, medical emergency, or temporary job loss. “It’s something usually beyond their control,” Witter said, adding that Seattle’s legal system often preferences the landlords and creates an “eviction mill” that could be contributing to the city’s rising homelessness crisis.

“I’ve seen a number of my clients out on the street in Seattle after they’ve been evicted, so there’s no doubt in my mind that it’s directly a pipeline into this issue,” Witter said.

Evictions “are a direct cause of homelessness,” according to a recent National Law Center on Homelessness and Poverty report which examined national trends. And once they become homeless, the renters are in a life-or-death situation. According to the King County Medical Examiner’s Office, 169 people experiencing homelessness died last year.

As the county examines the causes and solutions for the area’s homeless population—which numbers over 11,600, according to All Home’s most recent annual one-night-count—tenant attorneys contend that the scene that plays out in the housing court system, and the state statute that undergirds it, are both long overdue for an overhaul. Others like the Washington Multi-Family Housing Association and the city’s public housing authority argue that the law is the law, and that the court system impacts only tenants who don’t follow the rules.

The eviction process begins when a tenant violates a portion of the lease or is late on rent, and the landlord serves a notice (which range from three to 20 days). If the tenant fails to vacate the unit, a neutral third party serves an eviction lawsuit. Under Washington state law, landlords are prohibited from evicting tenants without court orders, and a 1980 Seattle ordinance safeguards month-to-month tenants in Seattle from unjust-cause evictions. Once served the eviction notice, tenants can then prove that they shouldn’t be removed from their unit at a show cause hearing. If there is a factual dispute, the judicial officer — customarily a commissioner — could send the case to trial. Yet eviction suits rarely end in trial, according to the Tenants Union of Washington State, noting that landlords usually win show cause hearings.

Once the eviction lawsuit is filed in the court, the resident automatically faces repercussions. Any history of evictions can affect a tenants’s eligibility for receiving rental assistance such as the Section 8 program, and hurt their chance of being accepted into certain buildings. Additional court fees can be significantly more than what the tenant owes in rent. Witter referenced one client on a Section 8 voucher who had to pay $2,400 in legal fees, about 12 times her average monthly rent, in order to retain her tenancy.

“The ease and speed with which tenants can be evicted is a problem, particularly if there is no other reason to believe the tenancy is not sustainable. Once the case is filed, paying off the court costs and attorney fees in order to settle the case becomes prohibitive,” said Northwest Justice Project attorney Scott Crain. “After the case is filed, the eviction record is a huge barrier to rehousing because the Supreme Court said that you can’t redact the names in the file. The order for limited dissemination helps, but it can be difficult to get if the landlord opposes it. Plus, tenants are rarely represented early enough to prevent disaster, while landlords usually have lawyers at every stage.”

On the day of Kelley’s show cause hearing in March, Commissioner Henry Judson sat at the head of the King County Courthouse courtroom flanked by the U.S. and Washington flags. Kelley, her volunteer attorney, and Witter huddled on the right side of Hudson’s desk, while a Low Income Housing Institute (LIHI) attorney, the property manager, and her staff stood at the left. Only the din of traffic whizzing by on Third Avenue occasionally interrupted the silent tension in the room.

The LIHI property manager claimed that Kelley was served the eviction summons for owing $182 in December rent. Throughout the show cause hearing, LIHI’s lawyer and the Housing Justice Project’s attorney debated the technicalities of how the summons was served and whether it was under possible perjury. The refrain “I’m confused” was bounced back and forth like a volleyball between the plaintiff and the defendant. Minutiae aside, Witter argued that there were credibility issues on LIHI’s side. “The worst case for our client is that she loses her home, and she loses her subsidy, and she loses everything else,” Witter said, delivering his sonorous defense in a huff.

Between sobs, Kelley told the commissioner that she was caring for her ailing father in Tennessee, and that she had tried to pay her rent every month since December, but that the property manager refused to accept her payments. At Housing Justice Project’s urging, Kelley had even sent her landlords a letter from her doctor informing them that her disability sometimes caused her to make unwise financial decisions. Her attorney asked for reasonable accommodations in January, and since then the plaintiff’s attorney fees had increased from $270 to about $900. (Under state statute, the tenant is required to pay the landlord’s attorney fees if they lose the eviction, or in order to retain their tenancy if they owe back rent.) “The law doesn’t give me much flexibility,” Hudson said.

Therein lies the problem, as far as Witter is concerned. “If you have a disability, you can usually leverage that as a reasonable accommodation that you’re going to need some more time to be able to move out, but otherwise you’re pretty much stuck,” Witter told Seattle Weekly in an interview later that month. “And that extra time can maybe be anywhere from three days to maybe a week. Occasionally you’ll see a little longer, but the ability for the tenant to be able to reinstate, to be able to keep the tenancy like that, the way that the commissioner ordered — that never happens.”

According to Princeton University researchers at the Eviction Lab, there were 371 evictions in Seattle in 2016, or more than one a day. On average, the evicted spent nearly 30 percent of their income on rent.

Since tenants aren’t guaranteed counsel in housing court, sometimes they don’t show up at all. In his book Evicted: Poverty and Profit in the American City, Harvard University sociology professor Matthew Desmond noted that only one in 10 tenants arrived to the show cause hearings in some cities, because they couldn’t find child care or they were overwhelmed and confused by the eviction process.

And once they do show up, low-income tenants interviewed for this story said that the judicial officials neglect to listen to them or consider their extenuating circumstances.

That was the case for Eboni Pennington, a Renton resident who was evicted from Grammercy Apartments operated by Renton Housing Authority in 2016. Before landing a Section 8 voucher and renting a unit in Grammercy, Pennington had been homeless and in transitional housing for about two years while trying to escape an alleged domestic violence situation. “I was really happy, I was ecstatic—it was a new situation for me and my kids,” she said about moving into the apartment. “We were able to get settled, we were able to finally have some sort of security in knowing what was going on.”

But then she and at least 41 other households on Section 8 vouchers in her complex were served termination-of-lease notices, because the apartment owners decided to withdraw their participation in the housing voucher program. She and others fought against it, which led to Renton City Council approving an emergency notice in November 2016 that prohibited landlords from discriminating against renters who rely on federal assistance.

Although she thought that she was in the clear, Pennington received an eviction notice about a month later for failing to pay her water bill, which the 34-year-old considered an act of retaliation for speaking with media and testifying before the Renton City Council about the unfairness of her potential eviction. The voucher covered her entire rent payment because she was unemployed at the time and supporting her four children as a single mom. Pennington paid part of her water bill, and the Department of Social and Health Services was supposed to pay the rest of it, but she said that the staff at the apartment complex didn’t fill out the paperwork correctly so that her utility bill could get covered.

“There was a lot of confusion when I went to court,” Pennington said. As she talked on the phone, her garrulous 2-year-old was babbling in the background. At the eviction hearing, Pennington mentioned that her children’s room didn’t have heat for three months and that she complained about it several times, but that the heater still wasn’t fixed. Under state law, landlords must supply heat to their residents and ensure that the appliances are in good working order.

As she surveyed the long line leading out of the hallway at the King County Superior Court in Kent, Pennington was hopeful because she planned to claim retaliation. Yet she said that she felt like the hearing was rushed—it was over in about five minutes—and that the burden of proving that she was inculpable fell on her instead of the apartment complex. “It seemed to me like he was annoyed and he just wanted to get it over with,” Pennington said about the judicial official. When she tried to explain that the landlords had not fixed the heater, she said the commissioner cut her off. “I felt like I really wasn’t able to say anything that I really wanted to have explained.” Pennington believed that the judicial official’s unwillingness to listen to her side put her at a disadvantage.

When the commissioner issued the ruling that she and her four children would be evicted, Pennington saw everything fall apart before her eyes. “How am I going to explain this to my children? Where am I going to go?” The thoughts raced through her head. Pennington and her four children again joined the ranks of King County’s homeless when she vacated the Grammercy Apartments in February 2016, until she found a private Renton landlord to accept her Section 8 voucher last November.

But the stain of the eviction has had ripple effects on her life. Along with the attorney and the sundry fees from her apartment (like the carpet cleaning), Pennington owes around $3,000 from her eviction. It’s gone into collections because she’s unable to pay it, and she said that it’s affecting her credit score.

Pennington believed that it would be easier for low-income tenants to stay in their places if the court reviewed the cases before the hearings, and that judicial officials should try to “understand what kind of situation people are in,” Pennington said. “One thing that bothered me the most is that my rent was paid on time and in full every month.”

Landlords and tenants are split on whether the court system leads to housing insecurity. Carlos Velategui, a recently retired commissioner for over 31 years at the King County Superior Court in downtown Seattle and the King County Maleng Regional Justice Center in Kent, said that state statute does not allow judicial officials “the equitable authority to feel sorry for tenants—who we do feel sorry for. I mean, it’s horrible. It’s horrible to tell a family that they have to move when they have no money to move and no ability to find a place to go. But the landlord’s got a dilemma too. If he needs the money to pay the mortgage, he could lose the property.”

As a commissioner, he said he didn’t have the right nor the desire to make other tenants live in a dangerous situation to keep one person housed. If the tenant just owed money, he said that the court might send it off to trial, but if they haven’t paid their rent, the unlawful detainer statute does not offer residents much right to complain about the apartments’ conditions. “I have no right under the law to make the landlord absorb that failure to pay. The statute doesn’t allow the court to say to the landlord, ‘Gee, this person has limited means and difficult circumstances. We’re going to make you loan him … the value of the rental.’ ” He argued that it’s not the landlord’s obligation to practice clemency when the resident isn’t keeping up their end of the bargain. “It’s like going into a restaurant, eating dinner, and not paying for it and trying to walk out,” Velategui said. “We wouldn’t allow that.” In fact, he said, he often saw landlords come to court after they’d tried to work with the tenants and they no longer had the financial resources to continue allowing the residents to forgo their rent. On occasion, the judicial officials do practice discretion by giving them additional time to move out.

In cases where people are mentally ill and want the landlord to make reasonable accommodations and forgive their transgressions, the judicial officials have more discretion. “But the statute still says that we have to consider the financial impact it’s likely to have on the landlord. We just can’t make them absorb too much if anything, frankly, to help someone else get along,” Velategui said. “It’s like asking an elderly parent who lives on Social Security to help support their child,” he said with a laugh. Velategui maintained that there are no holes in the judicial system that are contributing to the homelessness crisis.

Brett Waller, the director of Government Affairs for the Washington Multi-Family Housing Association agreed. “There are holes in the social safety net that limits a tenant’s ability to obtain immediate funding to prevent an eviction and remain housed. Outside of faith programs, the majority of homeless housing and assistance dollars are limited to individuals who are homeless, and are not available to individuals in a situation where they will become homeless,” Waller wrote in an email to Seattle Weekly. “This is a problem with the programs and funding sources themselves and not the unlawful detainer statute.” Waller added that evictions are a last-case scenario for landlords because they are time-consuming and expensive.

Housing-rights advocates argued that the judicial system does have a place in contributing to the homelessness crisis. In fact, last legislative session Rep. Nicole Macri (D-Seattle) introduced a bill that would outlaw no-cause evictions, but ultimately failed.

“It pisses me off so much, because it doesn’t cost the state any money to change the laws that make it more humane. And instead they’re just shrugging their shoulders and doing nothing,” said Washington Community Action Network’s Political Director Xochitl Maykovich.

“I think that the court needs to really think very critically about whether it wants to work on this problem, because I don’t see evidence right now that the superior court, or that the Washington courts in general, are really aiming to curb this problem,” Housing Justice Project’s Witter said. However, he noted that judges in New York and Ohio look at people’s individual situations and act more as social workers in an effort to keep residents housed.

Macri acknowledged that state law doesn’t allow for much judicial discretion, but she noted that the strong landlord lobby in Olympia has made it difficult to change the statutes. Although there has not been a strong body of evidence to show that what plays out in court contributes to homelessness, she said that she has heard many anecdotes in recent years that shows a connection.

She is working to re-introduce statewide just cause legislation in 2019. Mobile home tenants, immigrant rights activists, and domestic violence organizations have also come to the table recently to express their interest in stronger tenant protections. “I am interested in pursuing whether or not actions like a right to counsel makes sense here in Washington state,” Macri said. “The challenge that we have is that the legal representation is only as useful as the law protects people. So if the law doesn’t really provide protections, having an attorney isn’t really going to help all that much.”

In the meantime, Witter suggests that the players in the legal system can start doing some soul-searching themselves. “There needs to be more of a cultural change that really takes seriously that you’re dealing with a number of vulnerable people in your court system, and it’s not just a matter of giving them attorneys. It’s also a matter of the court really looking at how they are an institution that is contributing to homelessness in the sense that it’s sort of happening without a lot of judicial involvement.”

mhellmann@seattleweekly.com

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