Multnomah County tenants' advocacy group seeks to place a ballot measure ensuring the right to legal representation if their landlord tries to evict
Courts are evicting Oregonians by the thousands. An untold number more aren't included in official counts, which don’t include instances where residents decide not to take their case to court. A series of tenant protections enacted during the course of the early pandemic stayed a wave of evictions temporarily. But as these protections expired and corollary pandemic financial supports dried up, many find themselves once again facing eviction.
The population of people who face housing instability is broad. Half of all Oregon residents spend more than 30% of their income on rent, putting them outside the federal standard of affordability. In March, Street Roots reported almost 40% of all Oregonians over 65 feared losing their homes, and more protections for tenants have fallen away since then.
The cost of rent also continues to skyrocket, absorbing a greater and greater portion of people’s paychecks and making housing stability more elusive.
Much of the tenant protections available during the course of the ongoing pandemic have expired, while many still face months of unpaid rent as a result of financial hardship brought on by the pandemic. The deadline for Safe Harbor protections, which were passed by the state legislature in December, expired June 30. According to the law, tenants who submitted proof they applied for rental assistance had additional protections against eviction for nonpayment of rent. The Safe Harbor program is set to expire in its entirety this September.
Eviction Representation for All, or ERA, is a coalition of tenants and community organizations pushing for the “right to counsel” within Multnomah County. ERA is campaigning for a county code ensuring all tenants in eviction court are provided legal counsel. The proposal, which would be funded through the addition of a 0.75% capital gains tax on Multnomah County residents, is being introduced through an initiative petition process, which requires gathering enough signatures for the measure to make it on the ballot.
Street Roots asked Colleen Carroll, one of the ERA Organizers, about the proposal. Carroll was also a founder of Don’t Evict PDX, a renters advocacy group catalyzed by the quagmire of tenant protections during the pandemic, and is a central part of the ERA campaign.
Piper McDaniel: How did Eviction Representation for All get started?
Colleen Carroll: The seed for the campaign got started in the second half of 2020 when many of the people who are working on the campaign were activated around eviction prevention when the courts reopened to process evictions while we were still in the midst of a pandemic. Members of Don’t Evict PDX and DSA Portland also began researching 'right to counsel' ordinances and measures across the country to see what was working in terms of getting tenants legal representation and reducing evictions.
That study group transformed into the core of the campaign by 2021 when we had decided that we would pursue a ballot measure that was written by tenants. We knew that this was the path to passing right to counsel that would be universal (all tenants facing eviction receive legal representation, which would be sufficiently funded instead of a program that could be defunded after ARPA funds are gone or at the whim of a future county commissioner) and would take serious the mandate of reducing evictions and reducing the harms of the eviction process.
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McDaniel: What is your background and experience with tenant rights?
Carroll: I am a renter and tenant organizer. I lost my job and was served with an illegal eviction notice during the pandemic. I was able to avoid eviction because of the knowledge I had from doing this work but also was frustrated by the lack of support that was available. Tenants are on our own to navigate an incredibly stressful and technical legal process.
McDaniel: Can you describe how ERA would be funded?
Carroll: A small increase, less than 1%, of the capital gains tax in Multnomah county.
McDaniel: Why is it important for tenants to have legal representation?
Carroll: To have a fighting chance of staying housed. Having a lawyer on both sides doesn’t actually change the laws about what is and isn’t good standing to evict a tenant. But having legal representation for tenants makes sure that the landlord is acting in accordance with the law instead of acting under the assumption that they will win because tenants don’t have the means to counter them in court.
"Because everyone deserves a lawyer when they are faced with a lawsuit that could end in them becoming homeless. It’s really the bare minimum in terms of making the legal system accessible and more fair."
McDaniel: What kinds of abuse or intimidation are tenants without lawyers potentially facing?
Carroll: Losing their case on a technicality instead of on the merits of the case.
Tenants are also at risk of landlords who serve them with repeated notices of termination or invalid notices (such as a verbal notice or a text message that says 'Be out by Friday').
Tenants who have been dealing with habitability issues, illegal rent raises or other harassment will be able to present those arguments and evidence in court. Right now, tenants often are barred from giving testimony or presenting evidence because they didn’t file it properly.Tenants' right to counsel has been implemented in other places.
McDaniel: Can you name a few and describe the effect it’s had?
Carroll: Overall, right to counsel (RTC) has major impacts on tenants remaining housed, less cases get filed and more tenants leave the court process without being displaced. Less landlords win by default, which is a way that they anticipate winning at least one-third of the cases now. Also, the jurisdictions that have RTC save money on the downstream costs of evictions. RTC is a smart financial policy for the county.
McDaniel: How does the imbalance in power between tenants and landlords play out in terms of class?
Carroll: Like so much of our legal system, the rights of property and property owners are more protected and more enforced than human rights. A tenant’s right to housing isn’t present in our legal system, but a property owner’s right to exclude is.
McDaniel: How would ERA impact the housing crisis?
Carroll: By keeping people housed. By preventing illegal evictions and displacements. By making tenant rights that already exist enforceable.
McDaniel: Why is ERA important?
Carroll: Because everyone deserves a lawyer when they are faced with a lawsuit that could end in them becoming homeless. It’s really the bare minimum in terms of making the legal system accessible and more fair.
McDaniel: What about elected county officials? What has the response been?
Carroll: We met with all of the commissioners; all of them said that the policy is incredibly strong. They really support it. They know that it's a problem. They know that we need it. But it's an election year, and the (Portland Business Alliance) told every elected official that they would accept no increased taxes. And so, because we have funded it with a small increase in capital gains tax, all of the commissioners have stayed publicly silent on their support.
McDaniel: How are tenants responding? Is there support for the bill?
Carroll: Tenants, homeowners, and even local landlords that we have spoken with while canvassing are overwhelmingly in support of the measure. In fact, a common reaction we hear is ‘wait, this doesn’t already exist?’
People get that having to deal with the legal system on your own is unfair. People get that evictions are incredibly harmful to the families involved and to our community as a whole, and are excited about a measure that tackles the eviction crisis in a proactive and long term way.
McDaniel: We've discussed a power imbalance between landlords and tenants in court. Can you explain what you’ve seen?
Carroll: Absolutely. Landlords almost always have somebody representing them. If your landlord or my landlord had to go to court, every time that they were trying to evict somebody, it would cost them a ton of their time and their energy, the way that it does to tenants, to go to court, right? You have to take time off of work, you have to get child care, you have to forego things, right? And so landlords don't want to do that. And they've figured out that they can hire a lawyer or a, what's called an agent. And tenants are not allowed to be represented by agents, but landlords are. And so that's a cheaper version than a lamp than a lawyer, somebody who goes to the courtroom for you. So right there, the fact that tenants have to show up and landlords don't because somebody goes for them is an imbalance.
And the way that plays out is we don't pick the day of our court hearing. We don't know when it's coming. We don't start the process ourselves. We're not allowed to file a complaint against our landlord in housing court. The court is literally just designed for landlords to evict us. And so we don't have any say in when it happens, but a court date gets assigned to us. And if we are unable to show up, we get defaulted. And so about one-third of the cases right now default, which means that the case (is won) just on the basis of being filed. And many of those cases would be indefensible, but just the fact that they were filed means that they won.
And so having a lawyer represent tenants, every tenant in court would negate those winnings by default, right. And then also, landlords who have now become accustomed to being able to assume that one out of three tenants isn't even going to make it to the court that day to say, Hey, I disagree. One in three is just going to win. And it costs me nearly nothing to file this. And so if just knowing that every case would have to be properly filed and properly defended, that's going to rebalance part of the scales just there.
And then the second part, right, is that when both parties do show up, when one party is represented by a legal professional, and the other is not, you know, one side has a massive advantage.
McDaniel: Can you speak a little bit about the barriers tenants face getting legal protection and making it to court in the first place?
Carroll: Yeah, there are a couple of reasons why it's almost impossible, right? The national statistic is that less than 10% of tenants have lawyers in court; well over 90% of landlords do. The things that make it really difficult are how fast eviction cases happen. In Oregon, it's definitely the fastest civil process, and it's possibly the fastest of all of our legal proceedings. From first appearance to trial is 15 days. If you think about ... divorce courts or family law, those drag out for years, and there's a reason right there. They're more complicated, and they are deeply intimate in our lives. Whereas housing, the state has decided that the process should be incredibly short at the behest of landlords who say they're losing money for every day (and) that a tenant should have the opportunity to put their face together, ask questions, get a lawyer. And the state decided, when they made these laws, they said, ‘Okay, we'll force landlords to go through the courts, which they didn't want to do.’ (Landlords wanted) to be able to continue to evict people on their own. But they said, ‘Okay, we'll make you do it through the courts. But we'll let you do it in 15 days, we'll do it really fast.’ And so what happens is tenants have less than that amount of time to hire a lawyer.
McDaniel: What are “prevailing party fees,” and how are they related to a tenant’s decision to fight evictions in court?
Carroll: There are very few lawyers who will take tenants' cases because one of the other ways that the system advantages landlords is that the winner of a case in an eviction case gets to pass their legal fees on to the loser. And so if you're a lawyer, and you want to represent a tenant, a tenant who may not be able to pay the rent right now, you have the choice to bill that tenant off the top, which most people will say, ‘Well, I can't pay my rent, so I can't pay you,’ or you make a contingency plan. And you say, ‘I'll take your case. And if we win, the landlord will pay my bill.’ But you're also taking that case with the full knowledge that you're asking the tenant to take the risk of being stuck with the landlord's fees, which (is), of course, way more likely. And so, for any lawyer with good conscience, I think this is a hard thing.
This Q&A was edited for length and clarity.
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