In March 2021, Greg’s landlord casually informed him that he needed to move into the duplex apartment currently occupied by Greg and his girlfriend—and that the couple had to leave immediately. For Greg, who asked the Mercury to not print his real name out of fear of retribution, this news was both unexpected and startling.
“I thought, ‘Isn’t there an eviction moratorium? Don’t we have some kind of protections?’” Greg recalled. After digging into local and state tenant laws, Greg discovered that his landlord was legally allowed to evict him in this situation, but had to give Greg and his girlfriend at least 90 days to find a new place.
Their landlord was unaware of this policy until Greg pointed it out. The extra time gave the couple extra time to find a new apartment within their budget.
“We had to do the work to make sure our landlord followed the law,” said Greg. “That’s not something every tenant should be expected to do on their own.”
Colleen Carroll agrees. Carroll helped found Don’t Evict PDX, a renters advocacy group organized to address the confusing and ever-changing protections established for tenants during the COVID-19 pandemic. Carroll spent months watching eviction court hearings to understand the process, during which she observed a “horrifying” power imbalance.
Unlike in criminal cases, defendants facing civil charges in Multnomah County aren’t given free access to an attorney. Instead, renters who’ve been given a notice to evict and can’t afford a lawyer are expected to represent themselves in court, often facing their landlord’s experienced attorney.
“I’d watch renters go up against their landlords’ experienced attorneys, and just agree to these awful deals… I mean, these were unlawful evictions,” Carroll said. “That’s what happens when people don’t know what their rights are.”
That’s why Carroll and other tenants’ rights organizations are mounting a campaign to guarantee legal counsel to anyone facing an eviction notice in Multnomah County.
"We had to do the work to make sure our landlord followed the law. That’s not something every tenant should be expected to do on their own." — Greg, Portland tenant
Under the name Eviction Representation for All (ERA), the “right to counsel” campaign proposes adding a 0.75 percent capital gains tax on Multnomah County residents to fund the legal aid program. The program would ideally notify tenants of their right to an attorney at their first eviction notice, ensuring that people like Greg know their rights even if their eviction is legal. It would also mean that the thousands of tenants taken to court over their eviction will have someone who understands tenant law speaking up for them in court—and hopefully help keep them in their home.
The group, which is made up of renters, aims to get this policy proposal on the November 2022 ballot through an initiative petition process, meaning that they’ll have to collect a certain amount of signatures from supporters to qualify for the election.
Multnomah County isn’t the first jurisdiction to consider such protections for renters.
In 2017, New York City became the first city in the US to guarantee legal representation to any low-income resident facing eviction. A study of the policy two years after it went into effect found that 84 percent of tenants facing eviction who were represented by lawyers in court stayed in their homes, while the city’s overall eviction rate plummeted by over 30 percent. In the following years, six other cities—including San Francisco, Philadelphia, Boulder, and Seattle—established similar policies, each seeing measurable successes. In 2021, Washington state became the first state to offer free legal representation for low-income tenants facing evictions.
Carroll and other ERA organizers used other cities’ experiences to inform the local ballot proposal. After seeing the rollout of San Francisco's 2018 bill be delayed by city officials who had to determine the budget for the new program, the ERA decided to include a funding mechanism in the ballot language—something the San Francisco bill lacked. And, after watching a strong right to counsel proposal be watered down by Seattle City Council amendments, the ERA campaign decided not to try and push the measure through Portland City Council.
“We didn’t want this policy to be at the whim of last-minute political negotiations in City Hall,” said Carroll. “We wanted it to pass on our own terms—on tenants’ terms.”
In some cities, debate over a right to counsel policy has centered on limitations to which tenants are qualified for legal aid. The ERA’s measure, however, would grant people of all incomes access to an attorney. This feature is meant to help lower income renters who may be deterred from seeking help when they’re required to fill out paperwork proving their income.
“This is all about removing barriers,” said Carroll. “We want this process to be as simple as possible.”
Multnomah County courts have hosted a tenants’ right to counsel program in the past. In 2018, the city of Portland funded a $205,000 pilot program that had attorneys intercepting tenants outside of eviction court to offer their free legal assistance. The program lost funding midway through its pilot, meaning the city never published a full analysis on its success.
The eviction crisis spurred by the COVID-19 pandemic convinced city and county officials to give it another try. In August 2021, after getting a healthy allocation of federal American Rescue Plan Act (ARPA) funds, the city of Portland gave $440,000 to the Oregon Law Center (OLC) to kick off a new eviction defense program that would offer legal advice and representation to low-income renters. Multnomah County bolstered the OLC program with $300,000 of their own ARPA funds. Several other state and local funding streams have also contributed to the program’s budget—but there’s no guarantee the program will continue operating after the APRA funds run out.
"This is all about removing barriers. We want this process to be as simple as possible." — Colleen Carroll, ERA campaign founder
Becky Straus, an attorney with the OLC, said her organization requested funding after spending several weeks watching eviction court earlier that year, shortly after the Oregon Legislature extended the eviction moratorium in December 2020. That extension required tenants to sign a statement swearing they were experiencing financial hardship due to the pandemic and made it easier for landlords to evict tenants “for cause,” such as cases where a landlord is planning to demolish a property or move into it.
“We started looking at the eviction docket in January 2021 and frankly, we were shocked,” said Straus. “We were seeing all types of evictions and a large number of them were facially unlawful. And there is no way in our eviction court system for anyone to stop unlawful evictions from moving forward.”
OLC’s eviction defense program aims to intervene with clients before they’re in court. The program scans court dockets daily and sends letters offering free legal assistance out to anyone who has received a summons to eviction court. Once contacted, OLC can help tenants sign up for rental assistance through the state—a process that currently delays eviction proceedings under a pandemic-era policy—or review an eviction notice for blatant violations of the law.
Even if an eviction falls within the confines of the law, Straus said that legal representation in court can help a tenant reach a fair settlement agreement with their landlord. Without representation, a tenant might think a landlord's demand to move out in two days is non-negotiable. A lawyer representing a tenant, however, may be able to reach a settlement agreement that allows for three weeks.
Kim McCarty, the director of nonprofit Community Alliance of Tenants (CAT), said she hears regularly from tenants about how intimidated they’ve felt in eviction court.
“People expect that there will be some kind of information about their rights provided to them [in court], but there’s nothing,” said McCarty. “So they ask the experts in the room and will be told they can’t get any information.”
It’s commonplace for tenants without attorneys to ask the presiding judge for legal advice during a hearing or trial, which judges aren’t allowed to do.
“They think they’re entering a justice system that is looking out for them,” said McCarty. “But it really isn’t. They’re on their own.”
Despite OLC’s work to support renters, the power imbalance remains in eviction court. In December 2021, only 4 percent of all tenants in Multnomah County eviction court were represented by a lawyer. In contrast, 51 percent of landlords in those hearings had legal representation. (Prior to OLC’s involvement, an average of 2 percent of tenants were represented in eviction court.)
Many tenants facing eviction never respond to OLC’s letters offering free support. That could be due to a number of reasons: Maybe the renter doesn’t have access to a phone or email, maybe they thought the mail was a scam, maybe they couldn’t read the letter, or maybe they already moved out.
"They think they’re entering a justice system that is looking out for them. But it really isn’t. They’re on their own." — Kim McCarty, CAT director
It’s common for those who receive a notice of eviction to move out immediately, perhaps thinking the document is instantly enforceable and not aware that it’s just the first step in a legal process that can be fought. There’s no way to trace how many people go this route.
“It’s completely invisible displacement,” said Lisa Bates, an urban studies professor at Portland State University (PSU) who has been working with OLC to collect data on evictions. “It’s an unseen moment that needs interruption.”
Bates' data did find that 25 percent of tenants facing eviction in 2021 didn't show up to their first court hearing, an act that immediately sticks an eviction on their record.
Straus said there are lessons the ERA campaign can learn from this pitfall. Specifically, she suggested that the program commit some of its energy to visiting people threatened with eviction at their homes to make sure they understand what’s being offered.
“It’s a way to reach tenants who would probably never make it to court, due to technological barriers, disability, no ability to take off work, or just misinformation,” said Straus. “Those types of outreach solutions should all be on the table.”
McCarty said that the program should try to engage with renters even further upstream by requiring landlords provide new tenants with a document outlining their rights.
Perhaps most importantly, McCarty said, is that the ERA program’s legal aid is accompanied by rent assistance.
“Funding is absolutely necessary,” she said. “The past years have made this clear.”
Thousands of Oregon renters have been buoyed with rent assistance from federal and state dollars throughout the pandemic—funds that have helped them repay landlords for unpaid rent and avoid the looming threat of eviction once the current eviction moratorium lifts. Despite the moratorium’s protections, evictions for non-payment of rent have remained the prevailing cause for eviction filings in Multnomah County. In December 2021, 75 percent of all evictions filed in local courts were for nonpayment. Those missed payments are expected to be covered by the pandemic’s rental assistance funds.
But the levels of public investment distributed during the pandemic isn’t expected to last. Without a financial cushion to offer tenants facing legal evictions for unpaid rent, the ERA program might not be able to stop many evictions.
Carroll said that rental assistance will ideally be part of the ERA’s program offerings, whether that’s through a partnership with community groups that have access to rental assistance or extra funding collected through the measure’s capital gains tax.
Capital gains is any income received through an increase in the value of a capital asset, like stocks, bonds, real estate, or antiques—meaning that the annual amount of funding collected through a capital gains tax can often fluctuate. Based on past years’ data, ERA estimates the 0.75 percent tax will collect between $10 million to $12 million annually.
ERA also strives to create a fund to cover an onerous cost placed on tenants who lose their eviction case in court, called a “prevailing party” fee. In Oregon, whoever loses in a civil court case is responsible for the legal fees of the winning party. According to Carroll, that can stick a tenant with an additional $2,000 bill as they’re being evicted from their home. If the tenant is unable to pay that fee, they’ll be sent to small claims court—adding another mark to their record.
“It’s a huge burden placed on people during a difficult time,” said Carroll. “We want to relieve that cost.”
Portland landlords, who have historically been at odds with local tenant protection policies, have tentatively supported the idea of tenant representation.
“If a renter needs assistance to help understand their rights, they should have access to qualified representation,” said Deborah Imse, director of Multifamily NW, a business association that represents rental housing providers in Oregon.
Like tenant advocates, Imse notes that such a program would need a financial aid offering to be successful.
“We also know from examining court filings that most evictions are due to nonpayment of rent,” she said. “A robust rental assistance program for people who need help would address the majority of eviction filings in the City of Portland.”
Carroll is hopeful that the public’s heightened awareness of evictions following the pandemic and the political interest in the OLC program will get the ERA measure on the November ballot, if not enacted.
While the threat of eviction caused by COVID may have sparked an unprecedented need for tenant legal aid, those familiar with the system don’t see that need letting up once the pandemic’s threat recoils.
Bates, the PSU professor, said it’s important the public understand that the status quo of pre-pandemic eviction court was already working against tenants.
“There are a lot of tenant support programs that are being linked to the pandemic, with the perception of ‘Oh, once we clear this out it will be back to normal,’” said Bates. “But normal time was already pretty bad. This is not just a moment.”
In the meantime, renters who have the resources and time to study tenant laws have the upper hand. Carroll, who lost her job at the start of the pandemic, recalls receiving her first eviction notice for unpaid rent on her apartment door in 2021. But, she had recently filled out a financial hardship declaration that, according to state law, protected her from an eviction.
“There are a lot of tenant support programs that are being linked to the pandemic, with the perception of ‘Oh, once we clear this out it will be back to normal.' But normal time was already pretty bad.” — Lisa Bates, PSU urban studies professor
“I tore the notice off my door and took it to my landlord,” Carroll said. “I reminded them of the hardship declaration, and they said they had made a mistake.”
Carroll, who had noticed similar eviction notices posted on her neighbors' doors, then went door to door informing her neighbors of the state's eviction protection policy and helped them fill out hardship declarations—preventing their displacement.
“If I hadn’t spent six months researching tenants’ rights, I wouldn’t have known what to do,” Carroll said. “That shouldn’t be a requirement. This whole thing is an example of what happens when there’s a deep imbalance of power behind a basic human right.”