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Wealth & Poverty Review Washington Law Unfairly Keeps Prior Evictions Off Tenant Screenings

Crossposted at fixhomelessness

When it comes to tenant’s rights laws, good intentions don’t always lead to good or fair outcomes. One example is a Washington State law that allows tenants to keep their eviction from being disclosed to future housing providers.

The state allows an order of limited dissemination (OLD) to be filed for eviction cases to prevent housing providers from denying tenants due to a previous eviction. According to the law, an OLD prohibits tenant screening services from “disclosing the existence of that unlawful detainer action” or “using the unlawful detainer action as a factor in determining any score or recommendation.”  

The intent of the law is to prevent a past eviction from becoming a permanent barrier to an individual’s ability to find future housing. This is a sensible response to cases where extenuating circumstances lead to an eviction and the tenant takes responsibility by paying back unpaid rent. However, it is not a reasonable response to tenants with a pattern of eviction-worthy behavior, or to tenants who have no intention of reconciling their debts.  

The law outlines three reasons a court may order the limited dissemination of an eviction: a) the case was “without basis in fact or law,” b) “the tenancy was reinstated,” or c) “other good cause exists.” In September 2023, a Washington Court of Appeals ruled in a case that gave meaning to “good cause.” According to the case, plaintiff Christina Parker asked a lower court for an OLD two years after her physical eviction, explaining how her loss of employment led to her eviction and claiming that she paid back her debt. Parker stated that her family had been “turned down from five housing opportunities” due to her eviction. The lower court decided her request was not “good cause” for an OLD and denied the motion.

Parker appealed her case and won. The Court of Appeals decided that there are “situations where a prior unlawful detainer action — even a meritorious one  — might provide misleading insight into an applicant’s desirability as a renter.” The standard for obtaining an OLD is now the discretion of a judge as to whether they “believe that a prior eviction does not fairly reflect the risk a prior tenant poses to future landlords.”

According to attorneys for a local provider of eviction and tenant screening services, nearly every case that makes it to a show-cause hearing ends with an OLD. The courts tend to side with tenants in getting an OLD, even when the landlord does not agree to the order. If a landlord refuses to agree to the order, they risk not resolving their case. Instead of a tool for negotiating beneficial outcomes for both parties — pay back the rent to get a clean slate — OLDs have become another weight on the scale tipped in favor of tenants.

Whose job is it to decide the risk a prior tenant poses to future landlords? The current use of OLDs put judges in charge of making risk evaluations on behalf of future housing providers. Instead of letting tenant screening services do their job (screening tenants for risk), the courts have assumed that role for them, setting aside also the judgment of the tenant’s former landlord. The current application of “good cause” gives judges the job of making a subjective and speculative assessment of a tenant’s likely future actions rather than solely considering the legality of the eviction case.

Such an arrangement would be unacceptable if the tables were turned. Imagine a law that protected landlords from having to disclose a failed property inspection to future tenants, even if the landlord didn’t make the required repairs. A judge could decide that potential tenants didn’t need to know about the failed inspection, which would unfairly put them at risk.

It would be one thing if the inspection was faultily performed, or if the landlord made all the repairs and wanted their record clean. But most would object to a world where landlords could be made immune from accountability for their past actions simply because a judge decided it didn’t reflect the landlord’s risk to future tenants. Any good intentions of such a law would be negated by the injustice of subjugating unknowing tenants to a landlord with a history of failed inspections.

Good intentions don’t always lead to good outcomes. If the intent behind the OLD law is to keep a one-time eviction from becoming a permanent barrier to future housing, have the outcomes proven it successful? How many households got back on their feet and found housing following a “good cause” OLD who wouldn’t have otherwise?  How many tenants with an OLD have gone on to get a second or third eviction? We currently don’t have answers to those questions, but we should be asking them.

Maybe most importantly, we should be asking if OLDs encroach on a property right to choose who may occupy your home or building, and who may not. As Washington faces a shortage of affordable housing and a financial crisis of existing providers, it’s time to tip the landlord-tenant scales back towards balance, and accountability for past evictions should be part of the balancing.

Caitlyn McKenney

Research Fellow, Center on Wealth and Poverty
Caitlyn (Axe) McKenney is program coordinator for Discovery Institute’s Center on Wealth & Poverty. Her work has centered on government fiscal accountability, political rhetoric, and addiction with a focus on human dignity ethics. Caitlyn is a graduate of the University of Washington, has interned for a political advocacy organization in Washington, D.C., and has participated in the Vita Institute at the University of Notre Dame. She is published in the British Journal of Psychiatry, has contributed at the Federalist, and has made local and national media appearances.