Oregon is in a housing crisis. Experts say eviction court is part of the problem.
What’s surprising about watching eviction court proceedings is how utterly bureaucratic they are. People on the receiving end of eviction are devastated. They are scrambling to keep their lives intact, attempting to figure out where to go, how to eat, how to stay dry, how to keep going to work and what to do with their children. For them, it is a question of survival.
But the Multnomah County courtroom is far removed from these realities. It’s a Thursday like any other, Dec. 1 to be exact, and the courtroom is calm as it proceeds through a roster of eviction cases. Much of the time, the tenants aren’t present, which means the ruling to evict will be decided by default. The lawyers arrive in dark suits, often with a list of eviction filings, noting each case by name or number, and the judge — today Judge Monica Herranz — acknowledges the case, indicating the default eviction and making it final in the court records.
At various times, the judge inquired about a case — literally just a name on the list — only to be reminded the judge had already decided the case. Bizarrely, watching eviction court is like watching someone do inventory, except each item on the list represents an upended life.
Oregon landlords submitted more than 14,337 eviction filings in the first 10 months of 2022; more than half of these were for nonpayment. Most of these cases will end in eviction, a bleak trend in Oregon and courts nationwide.
For the majority of people, it’s getting harder to pay rent. Rent and cost of living are high and wages don’t keep pace. More and more people are priced out of the ability to afford housing, and in turn, evictions surge. Princeton University’s Eviction Lab estimates landlords file 3.6 million evictions in court each year. When these usually low-income tenants receive an eviction notice — which isn’t always accompanied by a formal eviction filing — an unknown number will comply with the notice, packing up their belongings and forging on, hopefully finding housing of some kind and avoiding the fray of homelessness.
Those that don’t comply likely receive a summons after a landlord files the eviction in court.
Only some will show up in court to advocate for themselves. When they do, they may hope they can present their case and possibly prevent their home from being taken away. But, a growing body of evidence shows the opposite: tenants face an overwhelming set of disadvantages in eviction court.
Instead of a court process designed to level the playing field between the wealthy and poor, advantaged and disadvantaged, renter and landlord, tenants are thrust into a fundamentally biased process that begins with an eviction notice and generally ends with losing their home.
When evictions, housing insecurity and homelessness have worsened to the point of national crisis, evidence shows the legal process of eviction itself contributes to the ongoing eviction crisis.
In court with no lawyer
At the core of this biased court system is tenants’ lack of legal representation. In the vast majority of eviction cases — 90% — tenants don’t have any legal representation, but landlords typically do have representation. Moreover, in Oregon, tenants are not allowed to have someone go to court in their stead and represent them. But landlords are, which means they don’t have to show up in court, but tenants do — even if they have a lawyer.
The fact tenants have to show up, and landlords can pay somebody to go for them is an imbalance, said Colleen Carroll, a spokesperson for Eviction Representation for All, or ERA, a coalition of tenants and community organizations pushing for the “right to counsel” within Multnomah County.
“One of the obvious ways that the courts are imbalanced (is that) landlords almost always have somebody representing them,” Carroll said. “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, you have to take time off of work; you have to get child care; you have to forgo things, right? And so landlords don't want to do that.”
While intuitive, this advantage comes into play when landlords own multiple properties. When a landlord doesn’t have to do the tedious paperwork filing, follow-ups and court appearances the court process requires, it is dramatically easier for them to decide to evict on a regular basis.
As Street Roots reported in September, property management companies often oversee eviction filings and court appearances for dozens of landlords whose land holdings can encompass hundreds of residences. Because these companies have expert lawyers and management systems designed to boost profits and efficiency, evictions tend to be issued more often. While not always the case, when properties and renters are numerous, the decision to evict can become more automatic because management companies are just looking at whether or not a payment was made, potentially without considering context or working to avoid an eviction, or they may have an entirely automated system.
Street Roots found 22 of the top 30 evictors in Oregon were property management companies, together filing hundreds of evictions in the first six months of 2022.
Meanwhile, the vast majority of tenants had no legal representation. According to data from Portland State University, since June 2021, tenants most often had representation in 9% of cases or less.
Without representation, the majority of tenants lose their cases and judges ultimately rule to evict them.
Right to counsel
In the wake of widespread eviction, tenants, researchers and advocates are looking anew at how eviction courts function. Among these new efforts to look closer at the eviction court system was a focus on the lack of legal defense for tenants, which spurred the growing “right to counsel” movement.
Right to Counsel refers to the right of a criminal defendant to have a lawyer, even if the person can’t afford to pay for an attorney, a protected right in criminal cases. Now, tenant advocates are pushing to give this right to tenants facing eviction in court.
According to the National Coalition for a Civil Right to Counsel, before 2017, no jurisdiction in the nation provided a right to counsel for tenants facing eviction. By the end of 2021, three states and 13 cities adopted right to counsel laws in eviction cases.
U.S. Department of Housing and Urban Development, or HUD, even recognized the importance of legal representation in November 2021, launching a pilot Eviction Protection Grant Program with $20 million in federal funding.
“Research shows that access to legal services and eviction diversion programs can help renters avoid eviction and the many harmful outcomes that come along with eviction actions,” Marcia L. Fudge, HUD secretary, said in a press release.
In May, HUD re-upped the program and provided another $20 million.
Depending on how residents vote next year, Multnomah County may be another place with mandated legal representation for tenants during an eviction. ERA recently announced it garnered enough signatures for the measure to be brought to voters in 2023.
The ballot measure would provide free legal representation for tenants in eviction court in Multnomah County and fund the effort through a 0.75% increase in capital gains taxes.
“What needs to change about how eviction court happens in Multnomah County to make it ... less unbalanced?” Carroll said. “Obviously, the court as it is right now is incredibly weighted in the landlord's favor. So we wanted it to be more balanced.”
Obstacles for renters
Eviction courts are stacked against tenants from the get-go, partly due to financial resources — renters inherently have less money than their landed counterparts, and lawyers are expensive.
But the tilting scales don’t end there.
Kathryn Sabbeth, a law professor at the University of North Carolina at Chapel Hill, published research in 2022, finding that the laws that structure eviction court overwhelmingly benefit the landlord and ultimately encourage eviction.
“Eviction is the product of the legal system that political leaders have chosen to construct,” Sabbeth argues. By design, this system upholds the power imbalance between landlords and tenants.
Among her findings, Sabbeth cited the following:
- Current eviction laws make it cheaper for landlords to pursue eviction rather than other forms of civil relief.
- The rules for serving tenants with notices are “substandard.”
- Default rules decide against tenants who don’t go to court.
- Expedited timelines for evictions (often two weeks) hamper the ability for substantive defense.
- In some instances, if tenants allegedly owe rent, the law prevents them from defending themselves.
- The structure of eviction laws contributes to unequal legal representation between landlords and tenants.
“While the urgency of the eviction crisis may appear recent, the (United States) has a long history of depriving subordinated people of homes while others profit from the scarcity and instability of housing,” Sabbeth writes. “The design features of eviction courts serve to maintain this social order.”
Until recently, information about how evictions happened in court was extremely limited. Sabbeth is among a burgeoning group unpacking how evictions courts operate and finding that the system clearly favors landlords. Mounting research — and eviction rates — bear out this idea.
“The court is literally just designed for landlords to evict us,” Carroll said.
Evicted by default
Default judgments are another component contributing to the eviction pipeline. When a tenant receives a summons to eviction court, and they don’t show up, the judge automatically decides in favor of the landlord.
Tenants don’t show up to court for all sorts of reasons: they may not know they can defend themselves, may not know how, may not be able to get the time off work, or find childcare or transportation to court, or don’t know whether or not an eviction is legal and defensible.
And sometimes, they don’t receive the court notice. An investigation in DCist found two servers in the Washington D.C. evictions court routinely neglected to provide tenants notice of eviction proceedings. In at least 600 documented cases, the servers didn’t give tenants notice, resulting in unlawful evictions.
John Pollock, attorney for the Public Justice Center and coordinator of the National Coalition for a Civil Right to Counsel, found in jurisdictions where there is no right to counsel, the combined challenges of the eviction system resulted in tenants failing to appear in 50% of cases in most places. In some places, tenants no-showed in court in as many as 79% of cases.
“Evictions used to be rare, and now we're in a crisis. And if you read any working-class history, if you read studies and social movements, evictions are about as American as apple pie.”
— Kyle Nelson, postdoctoral fellow at UCLA who researches evictions
“The disempowerment and bewilderment felt by unrepresented tenants navigating a complex legal system helps explain the high percentage of tenants who do not respond to the eviction complaint or appear in court,” Pollock said.
In Oregon, judges have issued default rulings in more than 25% of all eviction cases since July 2021.
“If we are unable to show up, we get defaulted,” Kyle Nelson, a postdoctoral fellow at UCLA who researches evictions, said. “About one-third of the cases right now default, which means that the case is won just on the basis of being filed.”
Because the judgment is automatic and tenants often don’t show up to court, cases that would otherwise lose or be tossed out of court will result in eviction, according to Nelson.
“Many of those cases would be indefensible,” Nelson said. “Some of them may also be improperly noted, but just the fact that they were filed means that they won.”
All of these conditions combine, putting landlords in a position of relative power from which evictions are an easy path.
“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's the calculation they have right now, which is one in three is just going to win,” Nelson said.
Tenant advocates say providing representation to tenants would help stem the tide of default evictions.
“Having a lawyer represent every tenant in court would negate those winnings by default, right?” Nelson said.
A moment of crisis
Americans are grappling with an affordability crisis. According to PEW research, renters across the United States have seen the average rent rise 18% over the last five years, an increase outpacing inflation.
In 2020, nearly half of the 44 million U.S. renters spent at least 30% of their income on housing (an amount placing them in HUD's definition of being "cost-burdened"). Of these, 23% were spending at least half of their income on housing costs, according to the U.S. Census Bureau. A combination of limited housing supply, rising rents and shrinking incomes translates to renter households spending more and more of their income on housing.
Tenants are struggling to make ends meet, and landlords are evicting more and more people. At the same time, homelessness is a growing epidemic fueled by high costs people can't afford.
Accumulating conditions of eviction court stack up — the ability for lawyers to have agents represent them, the lack of tenant representation and default judgments — incentivizing landlords to pursue eviction in some instances and making it extremely difficult for a tenant to advocate for themselves.
The net result is a system that contributes to the ongoing eviction crisis.
“Evictions used to be rare, and now we're in a crisis,” Nelson said. “And if you read any working-class history, if you read studies and social movements, evictions are about as American as apple pie.”
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