Councilmember Teresa Mosqueda’s office says she’s working to see how the council could tighten up the original ordinance and fix the issue.
Councilmember Teresa Mosqueda’s office says she’s working to see how the council could tighten up the original ordinance and fix the issue the court identified. Seattle Channel

After the courts nixed the Seattle City Council’s strongest post-moratorium protection for renters, the council is on the hunt for a workaround to keep tenants housed. But the clock is ticking. In less than a month, potentially tens of thousands of Seattle renters who fell behind on rent during the pandemic will no longer be able to use that financial hardship as a legal defense.

On Monday, the Washington State Court of Appeals struck down a key component of the protections for renters facing eviction after the Mayor ended the two-year-long eviction moratorium on Feb. 28. While the court upheld other protections, it decided the six-month eviction defense, which allowed tenants to claim pandemic-related financial hardship as a defense in eviction court, went too far. According to the ruling, the defense “deprives the landlords of their property interest without due process by not affording them the opportunity to test the veracity of a tenant’s self-certification of financial hardship.”

“I am disappointed by the Court’s ruling because this basic level of protection should be in place for renters who have faced financial hardship due to the pandemic,” wrote Councilmember Lisa Herbold, who opposed ending the moratorium last month. “No one should lose their home because they were unable to afford their rent during a global pandemic.”

The measure became the chief justification for ending the moratorium, allowing city leaders to dismiss housing advocates sounding the alarm about a potential tidal wave of evictions and homelessness. Although the court’s ruling upset council members who already believed the moratorium ended before the city had properly assisted tenants, all is not lost for the six-month defense.

Councilmember Teresa Mosqueda’s office says she’s working with the council’s legal team and central staff to see how the council could tighten up the original ordinance to ensure a six-month defense (or at least something close) without the courts striking it down. Councilmembers Kshama Sawant, Dan Strauss, and Herbold also said they are working to find a solution.

Right now, the council expects guidance from its legal team next week.

Timing will be tight no matter which policy path the council pursues. The six-month defense officially becomes void on April 20 at the earliest, so renters need not worry for another month, but it’s crunch time for the council. Central staff will have to write up new, air-tight legislation. Then the council will have to introduce the proposal and vote on it. Then the mayor will have to sign it.

Under normal circumstances, even if the council rushes legislation through, an ordinance does not go into effect until 30 days after the executive signs it. However, like the original ordinance, the council could pass emergency legislation, which goes into effect immediately. Emergency legislation is not always possible, but nothing is off the table at this point, according to a council staffer.

This is not the first time the council has responded to a court ruling it did not like. In 2019, the Court of Appeals struck down Seattle Initiative 124, which extended new rights to hotel workers after 77% of Seattle voters approved of the measure. At the time, the City Attorney’s Office said it would assess next steps. Similarly, in the case of the six-month defense, the current CAO spokesperson says the office will determine “whether to seek review by the Supreme Court.” This route gives the city a little more time. If the city appeals, the measure stays in place until the ruling is final.

With I-124, the council stuck to the mission despite the setback and passed a suite of ordinances meant to replace and improve the voter-approved hotel worker protections. The new hotel worker laws did not completely align with the original initiative, though, and the council may have to similarly adjust to replace the six-month defense and work around the court’s ruling against the use of “self-certified” hardship.

As I mentioned earlier, for renters who would have relied on this defense, the courts did not remove all the council’s promised protections. Landlords still have to offer tenants a repayment plan up to six months after the end of the civil emergency. If a renter needs assistance to pay the late rent, then they’re out of luck. Much of the city and county resources have run dry. But Mosqueda said more help is on the way: The State Legislature included $123.5 million for rental assistance in its budget this year.

If renters can’t work it out in a repayment plan, tenants facing eviction still have the right to legal counsel as permitted by a March 2021 ordinance. And though it won’t do renters much good now in the spring, the court upheld the city’s ban on evictions during winter months.