Should Landlords Get to Use a “Gut Check” when Picking Tenants? Judge Hears Arguments on Seattle’s First-in-Time Rule

The law in question does not stop landlords from using criteria like income and credit score. JUSTIN SULLIVAN/GETTY

Attorneys representing local landlords were in King County Superior Court Friday arguing they should have the right to use their gut instincts, rather than only impartial criteria, when picking their tenants.

Their case challenges Seattle’s “first-in-time” law, which requires landlords to rent to the first qualified person who applies for a rental unit. The law is meant to fight implicit bias, or instances in which landlord unconsciously discriminate against potential tenants because of factors like race, gender, or disability. "If a white woman and a black woman apply to rent an apartment, and the landlord doesn't want to rent to the black woman... the black woman never knows that's the reason she didn't get the apartment," Merf Ehman, executive director of Columbia Legal Services, told me last year. "How do we get at that?"

But landlords say the rule is too restrictive. In a lawsuit brought by the conservative Pacific Legal Foundation, a handful of local landlords argue they should have discretion to determine whom to rent to. The law is an “unprecedented attempt to regulate subconscious thought,” PLF attorney Ethan Blevins said at a hearing in the case Friday. Blevins also called the rule an “embargo on choice."

In the legal weeds, PLF argues the first-in-time rule amounts to an illegal infringement on property rights. They say case law in Washington has given property owners the right to rent or sell their property to whomever they want. Having to offer a “right of first refusal” to the first qualified tenant takes away those rights, they say.

The city argues the right to select a tenant is not in fact one of the property ownership rights protected by state case law. Instead, the city flips the narrative: Arguing for the choice of whom to rent to is really just another way of saying landlords should have the right to exclude other qualified tenants. “There is no difference between the right to exclude and the right to choose,” Assistant City Attorney Roger Wynne told the judge Friday. “When you choose one you’re excluding the other.” And if existing law really considered that a fundamental property right, “every anti-discrimination law in housing would fail,” Wynne said.

But Judge Suzanne Parisien seemed skeptical. “What the plaintiffs want is a right to choose,” Parisien told Wynne. “They want to be able to have their gut check that we use all the time in the real world… Every day we’re making a million choices based on how somebody makes you feel.” (Parisien disclosed at the start of Friday’s hearing that she owns a rental property.)

Seattle's first-in-time law doesn't apply to backyard cottages or houses where the property owner also lives, but does apply to duplexes and triplexes where the owner lives. It also doesn't fully kneecap landlords' discretion. The law requires landlords to state openly what criteria they will use to pick renters. (Think: credit scores, pets, etc.) But it doesn’t set any other limitations. Landlords can, for example, require tenants to attend interviews or open houses in order to qualify for a rental.

In making their case, city representatives have also pointed out that landlord trade groups like the Rental Housing Association of Washington recommend that landlords accept the first qualified applicant as a way of guarding against accusations of discrimination.

RHA filed a brief in support of the landlords in this case, arguing, essentially, that doesn't mean we wanted you to go and make this a law!

RHA argues the law threatens not only landlords' property rights but their bottom line. Seattle’s law requires landlords to give the first qualified applicant 48 hours to accept the rental or change their mind and rent somewhere else. “In the hot Seattle market,” RHA wrote, a tenant taking two days to decline an apartment could translate to a loss of money for the landlord.

After Friday’s hearing, plaintiff Kelly Lyles, an artist who rents out a house in West Seattle, said two of her tenants wouldn’t have qualified under her usual rules because of poor credit, but she rented to them anyway because “I liked them.”

“It’s just shocking to me they’re telling us we don’t have the right to trust our gut,” Lyles said.

Parisien gave little indication Friday of how soon she’ll rule. Either way, the case is likely to be appealed.