Councilmember Andrew Lewis has brought his somewhat risk-averse proclivities from being an attorney to his role on the council.
Councilmember Andrew Lewis has brought his "somewhat risk-averse proclivities" from being an attorney to his role on the Seattle City Council. Lester Black

The full Seattle City Council finally acted on Councilmember Kshama Sawant's ordinance to ban all evictions in winter months for tenants who fall behind on their rent and violate lease terms.

The moratorium is meant to stall evictions from Nov. 1 through March 31 to prevent mostly low-income and people of color from winding up out of a home and onto the street if they cannot pay their rent. It doesn't apply to criminal or nuisance behavior. The council voted to pass the measure unanimously. While the moratorium is historic and Sawant is still considering it a win—there is nothing like it in the U.S.—it was significantly altered by amendments from other council members.

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On one hand, the amendments may make it harder for tenants to take full advantage of the moratorium. But, on the other hand, they may protect the city from potential legal challenges.

Sawant opposed five out of six new amendments. Councilmember Tammy Morales also voted against these amendments. Councilmembers Debora Juarez and Lorena Gonzalez were absent. Gonzalez is on maternity leave.

Councilmember Lewis introduced an amendment that would establish a "mitigation fund" to pay landlords rent owed to them during the moratorium months. That money—which looks like half a million dollars so far, according to Lewis—will come out of the city's budget. Lewis's amendment was the only one that Sawant supported. Lewis, however, voted in favor of the rest.

Amendments like the mitigation fund (Lewis's), exempting small landlords who own four or fewer units from the moratorium (Alex Pedersen's), banning people who make above the average median income (Dan Strauss's), reducing the moratorium period from five months to three months (Strauss's), and more, make "the ordinance stronger," Lewis told The Stranger.

"While it may be optically upsetting," Lewis said about the amendments that Sawant called "loopholes," "it’s better than creating a symbolically strong ordinance that will not face the legal test well."

As "the first city in the country to put a ban on winter evictions" Seattle is "definitely going to face a legal challenge," Lewis said.

That's because it impacts landlords' property. But, most of the small landlords—self-described owners of "one or a few" units—who spoke at council or wrote op-eds for the Seattle Times have never had to evict before. Sawant pointed this out as "a bunch of 'what if' fears" which "are not the basis of policy-making." The bigger fight will come from large landlords.

The main defense in a legal case will be establishing the city's "interest." For the city, that will be proving that economic evictions cause people to become homeless and that is exceedingly harmful during the coldest months of the year.

Shortening the time period "to the coldest possible months" makes the argument "more compelling," according to Lewis, because it could prove to a judge that the city isn't "arbitrarily" expanding the moratorium. Similarly, Strauss's income limit (means-testing) shuts down an argument about the moratorium having what Lewis called "absurd results," or, put another way, that rich people won't be abusing the system.

Edmund Witter, managing attorney at King County's Housing Justice Project, thinks means-testing "throws a wrench in this whole idea," he told The Stranger. Reiterating what Sawant said in the meeting on Monday, means-testing will require a tenant to show up at court in order to prove they fit the income requirement. He says that won't work.

"Forty percent of all evictions are done by default," Witter said. That means a tenant doesn't show up to court and a landlord automatically wins. "That number is increasing and we don't know why."

Eviction data is bad. There are a lot of variables and unknowns. The Seattle Times reported that in 2019 there were 551 evictions enforced throughout Seattle. There were 1,218 evictions filed in 2017, according to the Seattle Women’s Commission and the Housing Justice Project of King County Bar Association. But not all evictions have a paper trail. Many people don't show up. Many give up without fighting the eviction and move out on their own.

"A whole set of people are not going to be protected when you start introducing stuff like means-testing," Witter said.

Those foggy numbers also emphasize the importance of this moratorium.

"There's going to be a wider impact than we actually are realizing at this point because we don’t have the data to show it," Witter said.

Witter has issues with all of the amendments except Lewis's mitigation fund. His biggest issue was with Pedersen's. Though it tried to protect small landlords by exempting landlords who owned four or fewer units, "most buildings are owned by an LLC," Witter argued. That means that landlords could easily get around the limit by registering their holdings under different corporate entities.

Mostly, though, Witter doesn't see a lawsuit as a big threat. He believes a Supreme Court case in 1993 established a precedent that the city "had a right to raise defenses to eviction and put some kind of barriers in before an eviction can actually occur." That's why the council uses weird language in the ordinance.

"They call [the moritorium] 'a defense to eviction,'" Witter said, "because that’s what the Supreme Court has said the city’s allowed to do."

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Before the council can face a legal battle, it will have to see how Mayor Jenny Durkan will respond to the ordinance. Her statement after its passage was lukewarm and there are worries that she will veto the ordinance.

When asked about a potential mayoral veto, Lewis said that he was "pleased to see that we passed this in a unanimous decision."

The vote passed 7-0. The council only needs six votes to override a mayoral veto.