This afternoon, Council member Sawant introduced a bill that would prohibit residential landlords from evicting a tenant during the coldest months of the year.

The bill is a simple, straightforward extension of the city’s “Just Cause Eviction” ordinance, which would be amended to read that “regardless of whether just cause for eviction exists,” an owner may not evict a residential tenant if the eviction occurs between November 1 and March 31.

The ordinance was suggested to Sawant by the Seattle Renters’ Commission in a November letter.

Both the Commission, and in turn Sawant, cite the large percentage of evicted tenants who end up homeless, and the grave danger to their health from being exposed to the elements during winter.

Sawant’s ordinance is based upon a law in Paris, France, that also bans evictions from November 1 through March 31. While no U.S. jurisdiction has such a law, San Francisco has an ordinance that prohibits evicting school employees, families with children and child care center workers during the school year in order to occupy it, remodel the housing unit, convert it to a condominium, or demolish it. Sawant’s bill would go much further though: it bans all evictions, for any reason, for five months of the year.

In a short discussion of the bill at the Council Briefing this morning, some of Sawant’s colleagues expressed support for the principle of preventing evictions during the winter months, but skepticism as to whether it would pass legal muster. Sawant said that her office and the Council’s central staff have been working with the City Attorney’s Office on the bill, but “not every issue has been worked out.” Council President Harrell, himself an attorney, said that he saw the bill as “problematic” legally, and noted that, if passed, it may draw an immediate lawsuit from landlords.

There are two obvious legal issues that will need to be addressed. The first is a question of liability: in a multi-unit building — or if someone is renting out a room in their own house — what happens if the tenant is found to have engaged in criminal activity on the premises, and presents a danger to other tenants on the property or to the landlord? If the city prohibits the landlord from evicting that tenant and there is a further incident, is the city liable for the consequences of forcing the landlord to allow the tenant to remain?

The second is a question of property rights: is denying a property owner the right to evict a tenant for up to five months a violation of the owner’s rights? The recent state Supreme Court ruling on the city’s “First in Time” tenant-rights ordinance potentially affects how the courts will rule on that question — or at the very least narrows how the question can be asked.

Prior to that case, Washington state courts saw landlords’ property rights as a “bundle of sticks,” where if government regulations removed too many of the sticks, then the regulations were seen as a “taking” of property bythe government that is subject to Constitutional protections of due process and fair compensation. But the “First in Time” case changed that; the state Supreme Court rejected its previous guidance, and said that the federal courts’ interpretation should be used instead. Under U.S. Supreme Court precedent, a government taking requires depriving a property owner of “all economic benefit” from their property. It thus found the “First in Time” law to not be a “taking,” because it didn’t prevent landlords from renting their property; it simply set rules about who it should be rented to. The San Francisco ordinance mentioned above also survives legal scrutiny, because it doesn’t prohibit evictions for non-payment of rent — thus not depriving a landlord of all economic benefit from their property.

But Sawant’s proposed legislation, on the other hand, does prohibit all evictions, even for non-payment of rent. That means that a landlord dependent upon rental income to pay his or her bills could be stuck with a non-paying tenant for up to five consecutive months with no recourse. At the end of March a landlord could then move forward with eviction, and would still be owed back-rent and late fees, but by then the landlord could be in financial trouble themselves. So if Sawant’s bill is passed in its current form, and is (inevitably) challenged in court, the question for the judge will be whether prohibiting the eviction of a non-paying tenant for five months reaches the level of “depriving the owner of all economic benefit” for that property. And there’s a very good chance that the judge will answer “yes.” The timing will be a central part of the legal analysis: delaying eviction for one month (as many eviction laws already do) is not a violation of property rights, but five months of non-payment may be beyond an acceptable threshold for what a landlord can be expected to withstand financially — particularly if it puts the landlord at risk of losing the property altogether.

Sawant said this afternoon as she was introducing the bill that her original intent was to have the full Council vote on it next Monday, though based on what she has heard from Council staff and the city’s attorneys she is not committing to that plan and may opt to send the bill to a Council committee for further work and deliberations. That would stretch the process out into Janaury, when a new Council will take it up. It’s unclear, however, how the new Council members might feel about letting this bill, which will be tied up in the courts for months (if not years), be one of their first high-profile legislative acts. The bill will also create a larger divide between landlords and tenants, not to mention one more disincentive for the rental-housing market, at a time when the city is still growing rapidly and needs to continue to build rental housing at a rapid pace. With Sawant also threatening to introduce a rent control ordinance, the new Council might not be ready to go all-in on tightly regulating the rental housing market. On the other hand, they might want to do exactly that, and this could be the first big test of how far to the left the four new Council members are willing to tilt.

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