New Ballot Measure Aims to Give Tenants More Power in Facing Down Eviction

A recently approved ballot measure will ask voters next May to consider a simple tagline: Eviction court is rigged. 

The Eviction Representation for All initiative would create a new Tenant Resource office to provide free legal representation to any renters facing eviction. Property owners serving eviction notices would be required to inform tenants about the program. 

For petitioners, it is an especially urgent tactic as eviction moratoriums expire. According to the data-gathering project Evicted in Oregon, run by the Eviction Defense & Diversion Evaluation team at Portland State University, there have been more than 16,700 eviction filings in the state in the past year. In Multnomah County, 92% of the eviction filings are for alleged nonpayment of rent. 

Locally, the filings break down to an average of 820 per month, a stark rise compared to the 2019 monthly average of 500 filings. 

“When landlords understand that all tenants will have the right to counsel, it changes the power,”

Colleen Carroll, a researcher and volunteer with the Eviction Representation for All campaign, told The Skanner. “Because it is relatively cheap and easy to file an eviction proceeding, it becomes the first option instead of the last. In jurisdictions that have passed the right to counsel, filings go down because landlords know they have to be able to prove the case. That isn’t the case right now. Many, many cases are won before they go to trial.”

Analysts emphasize that these numbers only reflect evictions that lead to court proceedings. In many cases, tenants "self-evict" -- or vacate their residences when faced with eviction, fearing the cost and fallout of having a judgment of eviction on the record. 

Shifting Balance

The destabilizing, wide-reaching impact of an eviction has been well documented.

"Evictions not only cause tenants to lose their homes but also cause them to lose their possessions, disrupt their connection to the wider community, force children to change schools, lead to job loss, negatively affect people's mental health, threaten child custody and impose an obstacle to future housing,” chief co-petitioners Evan Burchfield and Jill Pham wrote when introducing the measure.

And yet housing advocates point out how inequitable eviction court is to the tenant. 

“Eviction court is really so different than almost any other court proceeding in the United States,”

Carroll said. “It is faster. It’s the shortest proceeding. You don’t have time to do all the things you think you have time to do, especially by yourself. It’s a summary case.”

Currently, only 3% of tenants retain legal representation during eviction court hearings, versus about 80% of landlords and property owners. This means that tenants who are likely already experiencing hardship are thrown into a tight, unforgiving timeline to navigate the court system and research their options, all while their living situation is in peril. 

“Even with substantial resources available in the state for compensating landlords, tenants have to be aware, proactive, present, and assertive at all steps in a legal proceeding in which they have the least knowledge and experience of any of the parties,” Lisa K. Bates, a PSU urban studies professor who launched the Evicted in Oregon data-gathering project, wrote in her recent report “Oregon's Safe Harbor for Tenants: Rocky Shoals in Eviction Diversion.”

The report revealed severe shortcomings in programs designed to extend early pandemic-era eviction moratorium protections.

“Tenants need attorneys in eviction cases to mitigate the power imbalances in the landlord-tenant relationship that are exacerbated in court,” Bates said. “An effective civil right to counsel would provide legal counsel, at no expense, for eviction cases and would assign that attorney as early as possible to avoid tenant default.”

Leveling The Field

The Eviction Representation for All initiative would be funded by a new 0.75% tax on net capital gains, which would fund county contracts with five or more nonprofit law firms and community-based organizations. This revenue would also be put toward funding emergency rental assistance and legal costs. 

Carroll argued that the presence of a tenant attorney can substantially improve a tenant’s likelihood of success, both with institutional knowledge and by presenting more significant obstacles in the eviction process, thereby de-incentivizing landlords from filing recklessly. 

Currently, there are few such deterrents, Carroll said. 

“One way (tenants lose) is by default, if a tenant is unable to attend a court hearing – they have to work that day or they don’t have child care, any of a number of things,” she said. “You just lose because your landlord filed against you. Nobody looks at the notice, nobody asks, ‘Is this a valid case?’ It’s just won because it’s filed and the tenant was unable to attend that day. Having a lawyer eliminates those losses at that stage, and that (comprises) up to 25% of the cases currently. That will eliminate lots of easy wins. 

“When a landlord is asking, ‘Do I want to file this eviction or do I want to look at one of the other options?,’ just adding that friction of knowing you don’t have a one-in-five chance of just winning” can deter landlords from impulsive filing, she added.

Attorneys can also better advocate for tenants during stipulated agreements, a tactic judges encourage to avoid an eviction case going to trial. 

“Often in Multnomah County, you have five to 10 minutes to come up with a legally binding agreement,” Carroll said. “What they don’t often say is you forgo your right to trial if you sign that agreement. Often those agreements are really hard to maintain. Having every tenant have a lawyer changes the dynamic of those negotiations.

"A tenant lawyer is not going to agree to an unreasonable amount of time (for move-out), because they know they can push back.” 

When tenants have legal representation, they can file counterclaims more successfully. 

“Maybe you’re withholding rent because the stove hasn’t worked in two months, you’re able to tell that whole story – you can tell it to your lawyer, and your lawyer will tell you your legal options,” Carroll said. “The access to just a basic defense goes up, and you can navigate some of the other diversion options.”

Petitioners point out that in other jurisdictions that have passed similar measures, including New York and Cleveland, eviction filings have decreased. 

“That’s an indicator that things are getting resolved outside of the court in other ways,” Carroll said, “or cases that are not really that legally strong are not filed in the first place.”