Council acts to seal eviction records and tamp down on serial eviction filing
This article is part of our 2020 contribution to the DC Homeless Crisis Reporting Project in collaboration with other local newsrooms. The collective works will be published throughout the day at DCHomelessCrisis.press.
While the District has had an eviction moratorium in place since mid-March, tenants have still been feeling the threat of eviction–and the long-term consequences of eviction filings.
When an eviction action is filed, that filing remains on a tenant’s record permanently, whether or not the action was successful. This record can inhibit a tenant’s ability to secure affordable housing in the future, even if the eviction action was denied or found to be unwarranted, or, as is currently the case, filed illegally during the moratorium.
The D.C. Council unanimously passed a bill on Oct. 6 mandating eviction records be sealed after as little as 30 days if the eviction was not carried out and after three years if it was — allowing the courts to seal records sooner at their discretion. The legislation was introduced by Ward 3 Councilmember Mary Cheh and Council Chair Phil Mendelson.
The bill also restricts landlords from using past evictions when deciding whether to rent to a prospective tenant and suggests the federal government raise the fee to file an eviction with the Superior Court. It will take effect immediately following the approval of the mayor.
Cheh was motivated to put the bill forward because of the lasting impact an eviction filing can have on District residents, she told Street Sense Media before the vote.
“Evictions are devastating to tenants, just being evicted,” Cheh said.”If you are evicted, or even if there was just a case filed against you, whether you’re evicted or not, that filing, that record follows you under the current law forever.”
According to Mendelson, in a normal year, the city has the highest eviction filing rate per capita of comparable cities. Despite the eviction moratorium in place since March, landlords have continued to both provide eviction notices to residents and file eviction actions with the D.C. Superior Court. In response, the Council voted on Sept. 22 to bar landlords from sending eviction notices, which warn tenants they have 30 days to leave the residence or fix the issue in question before an eviction action is filed, until the eviction moratorium is lifted. Tenants who receive these notices during the pandemic have mistakenly thought they had to move out to avoid eviction, even though no evictions are currently allowed.
It’s not just these notices that are causing harm to tenants—landlords have also filed over 1,800 eviction actions with the court since the moratorium was put in place. Even though these residents are protected from losing their housing currently, the action itself could affect their future.
“The numbers are staggering, and if then you have for mere filing this record that follows you around, it is devastating to a person to be able to rent in the future,” Cheh said. Of the eviction actions filed between 2014 and 2018, only 5% resulted in eviction, but every single one created a permanent record.
Once an eviction record has been created, it can be seen by anyone who searches for it, including future landlords and employers. The first piece of information those looking for the records get is their existence, not whether the action itself was successful, according to Leigh Higgins, an attorney at the D.C. Tenants’ Rights Center. In order to see the outcome of the case, the landlord has to go further into the record, which not everyone takes the time to do before deciding whether to rent to the tenant or raise their rent based on their eviction history.
“As of right now there’s no limitation on a landlord using this information in making a decision about whether or not to rent to a prospective tenant,” Higgins said, adding that tenants with an eviction action on their record often struggle to find a landlord willing to rent to them. “Unfortunately, having any type of eviction case on your record makes it extremely difficult to find a new landlord who is willing to rent to you, even if that case has no bearings on your actions.”
The bill proposed by Cheh and Mendelson aims to rectify a few of the problems Higgins identified through a three-pronged approach of sealing records, reforming eviction requirements, and barring landlords from using information about a tenant’s prior evictions when deciding whether to rent to them. This is the third time Cheh has proposed legislation attempting to seal eviction records, after putting forth similar bills in 2018 and 2019. The latest bill, which was proposed before the pandemic began but altered to fit D.C.’s current needs, is distinct from earlier ones because it is emergency legislation, meaning it is only in effect for 90 days, and includes new provisions to reform the eviction process itself.
However, the main components of the bill remain the same. The D.C. Superior Court will now be required to seal eviction records after 30 days if the court does not find in favor of the landlord, meaning no eviction is carried out, and after three years for cases where an eviction did take place, as long as no other actions are filed about that tenant in the meantime. The court can also decide to seal records earlier for good cause, which could include instances where the amount in dispute was below $600, or the tenant was fleeing domestic violence. All currently filed cases eligible for sealing are expected to be sealed retroactively by the start of 2021.
This provision, according to Cheh, aims to limit the long-term impact one eviction filing can have on a tenant’s future housing. “Materially, it affects someone’s ability to rent another apartment at all, or to rent it without an additional security deposit or higher rent,” she said. “For many people this could actually be the difference between getting some decent housing or not.”
To prevent some actions from even being filed in the first place, landlords will be required to give their tenants 30 days of notice before filing any sort of eviction case, even if there is a provision in the lease waiving that requirement for non-payment of rent cases. If at least 30 days are not given, the Superior Court will dismiss the eviction filing. According to Higgins, this month before the action is filed will both give the opportunity for the tenant or rental office to fix any mistakes and protect tenants who are just a few days late in rent.
“A provision requiring 30 days notice gives tenants more time to realize, ‘oh if I don’t get this paid, a lawsuit is coming,’” Higgins explained.
Following a report from DCist on the failure of the process servers hired by landlords to deliver notices of eviction filings to actually deliver those filings, Ward 6 Councilmember Charles Allen proposed an amendment requiring servers to send photographic proof of the delivery of the filings to the court. The amendment was adopted without objection.
Additionally, the bill restricts the use of knowledge of past evictions or eviction filings when landlords review applicants for housing. Landlords will be required to tell tenants what criteria they will use when deciding whether to rent to them, and prohibits landlords from asking about past eviction actions. If a landlord denies an application for housing, they must tell the applicant why they did so, and they must give the tenant the chance to respond to any concerns, including about past evictions. Landlords who knowingly violate this provision will face a fine of up to $1,000 beginning at the start of 2021.
“It has to be a more holistic judgement of a person’s fitness to rent the apartment,” Cheh said. She expects these provisions to effectively prohibit landlords from using information on evictions to determine whether to rent to a tenant. “Those three bases will pretty much ensure that your prior eviction is not going to be held against you,” she said.
Finally, the legislation makes changes to the filing process itself by prohibiting any eviction filings where the amount owed is less than $600 or the landlord lacks a business license. 12% of eviction filings in 2018 were for missing rent of $600 or less, which is below one month’s rent in nearly all housing in the District.
In a normal year, the District sees about 30,000 eviction filings, according to the Superior’s Court’s 2019 statistical summary, and before the moratorium 12 evictions occurred every day in the District. According to the Office of the Tenant Advocate’s website, landlords may only legally evict tenants for one of 10 reasons, including a failure to pay rent, violating provisions of the lease, performing an illegal act within the unit, or in order to live in, sell, renovate, demolish, or otherwise substantially change the function of the unit. In order to evict a tenant, a landlord must provide the tenant with a notice to vacate, except when not required by the lease, and give the tenant an opportunity to rectify the issue or challenge the landlord in court.
While some eviction actions that are filed fall into these broad categories, Higgins said cases are also filed when the tenant was just a day late on rent or withheld rent lawfully due to a housing code violation in the property. In some cases, tenants paid rent, but the rental office applied it to the wrong unit or lost it. When the issue is fixed before the case is due to be heard, these cases are often dismissed without a hearing, sometimes before the tenant is even notified.
“We do work with people who are in the process of trying to find a place to move and find out that a case had been filed that they didn’t even know about,” Higgins said.
Though the council does not have the authority to raise filing fees for eviction cases, the legislation also suggests to the federal government that the fee for filing for eviction should be raised from $15 to $100. The District’s current fee is one of the lowest of any city in the country, according to Mendelson. In Virgina, the fees range from $120 and $350.
These low fees, according to Cheh, can encourage serial filing. In 2018, 10 landlords were responsible for nearly 40% of eviction filings.
The bill, which is emergency legislation, will be backed up by temporary legislation with the same provisions, also filed on Oct. 6 which, once it passes, will be in effect for 225 days. Cheh also expects the Council to take up a piece of permanent legislation on the same issue. The designation of emergency, she said, was because the measure would become even more imperative with the end of the public health emergency, not because it is a short-term measure.
“This is not meant to be something that lasts for a short period of time…I have every confidence that the council will follow through all the related steps,” Cheh said. “We need to do this right away but that doesn’t mean that we’re not going to put this in law on a permanent basis.”
For both Higgins and Cheh, this new law offers one key thing to those with eviction filings on their record: a fresh start.
“Especially in today’s pandemic times, thinking ahead about creative and proactive ways to make sure that everybody can get a fresh start once this public health emergency ends, I think this is an important component to those tenant protections,” Higgins said.
Cheh, too, is hoping for a future where tenants have the ability to disentangle their housing prospects from past court filings, and simply rent based on their current ability to pay.
“Even in bankruptcy we give people what is called a fresh start. The core principle here is if there is a filing, you shouldn’t’ have to carry that around with you,” Cheh said. “Even if you were evicted, if you go three years with nothing bad, and you’ve rented an apartment and you’ve paid your rent, you ought to be able to be freed from that record of a prior eviction, you ought to have that same concept of a fresh start.”