Apartment Association calls eviction mediation ‘stall tactic’ for tenants

Supreme Court hears draft rules; landlord group prefers no rule

By: - September 23, 2020 6:00 am

Laura Nguyen, a single mother of two, was already evicted once during the pandemic and doesn’t know what would happen if evicted again, which she fears is coming.

She told Nevada Supreme Court justices Tuesday the first eviction happened in June, even though her son was recovering from Covid-19, a situation that should have protected her from eviction under the state moratorium in place at the time. Since then she and her daughter, both diabetics, have been diagnosed with Covid-19. 

The $276 she gets each week in unemployment benefits can only go so far to cover $700 in rent and other bills. 

“I’ve decided to put all of my money to pay my rent this month because of what I went through when we were evicted, but I don’t know how I am going to pay for next month,” Nguyen said. 

In order to contend with the potential onslaught of evictions, the Nevada Supreme Court heard public comments on proposed rules for alternative resolution dispute programs that would prolong an eviction up to 30 days while landlords and tenants enter a mediation process.

There is no indication when the court would make its final recommendation on the drafted rules.

The Nevada Access to Justice Commission, created in 2006 by the Supreme Court to improve delivery of legal services to low-income Nevadans, has sought input from legal groups and landlord representatives in order to come up with guidelines for  the program. 

Nguyen, along with other renters and legal aid groups, urged the court to adopt a mediation program that could prevent thousands from being forced from their homes.

The Nevada Realtors Association and the Nevada Apartment Association, along with property managers and landlords testifying at Tuesday’s hearing, worried that any mandated mediation program would unfairly prevent landlords from evicting tenants who they say are trying to skirt the system and simply not paying rent. 

‘Every database source sees the same future’

“We would implore this honorable court to consider the crux of the Nevada Access to Justice Commission, which was created to provide access to all Nevadans, not just tenants,” said Mackenzie Warren, a lobbyist for the Nevada Apartment Association. “Landlords are Nevadans who are equally deserving of justice. A mandatory program aimed at what we perceived as the sole benefit of the tenant seems inconsistent with the commission’s mission, which recognizes that justice should be the same in substance and availability without regard to economic status.”

The concerns over rising evictions come as Nevada faces record unemployment rates,  a backlog of unpaid unemployment claims, and dwindling assistance, meaning people are unable to pay rent. 

The Guinn Center for Policy Priorities has estimated, based on unemployment numbers, 270,000 people in Nevada could face eviction.

Warren argued Tuesday those numbers were outdated and based on higher unemployment projections that never manifested. An “eviction tsunami,” Warren said, seems unlikely even though national models have predicted as much.

Bailey Bortolin, the statewide advocacy, outreach and policy director for the Nevada Coalition of Legal Service Providers, countered Warren saying the estimates from the Guinn Center have not only been updated, but also “been endorsed by the CDC and were actually used for the rationale for the CDC extension.”

“Every database source sees the same future,” Bortolin said. 

Over the summer, lawmakers passed Senate Bill 1, which authorized the court to set up an alternative dispute resolution program as a way to prevent the courts from becoming overwhelmed. Some mediation programs have since been set up or enhanced by localities, but have limited scope while the Supreme Court finalizes its rules.

Tuesday’s hearing received feedback to two draft proposals on the guidelines for eviction meditation. 

Both proposals outlined basic guidance for the mediation process.

The first drafted rule, labeled exhibit A, goes over requirements of what resources courts must include and the process for when mediation would occur. 

The second proposed rule, exhibit B, is opposed by legal aid groups and tenants’ rights organizations. It would prevent tenants from entering the mediation process if they already entered into a written payment arrangement or lease agreement, requested mediation with the same landlord in a summary eviction action within the last 15 months, or applied for rental assistance, regardless if it was approved or denied.

Jim Berchtold with the Legal Aid Center of Southern Nevada said the idea behind mediation was so that landlords and tenants could find “creative solutions to avoid homelessness that would not be available if those landlords and tenants were standing in front of a justice of the peace in a court hearing.”

He added the vision was to have representatives from the Department of Employment, Training and Rehabilitation and programs allocating rental assistance available during the mediation process.

“We fail to see how removing people from this program serves any of the goals,” he said speaking against exhibit B. “It does not bring landlords and tenants together to come up with solutions, be it a repayment plan or a specific move-out date. It does not link landlords and tenants with rental assistance, it doesn’t link them with assistance from DETR and it certainly does not serve to limit the number of cases going through the court system.”

Warren said mediation could prolong the inevitable and prevent landlords from evicting tenants who won’t pay or will never have the funds to pay back rent. 

If the tenant brings nothing to the table, — money or funding — “then we would see that as a stall tactic,” Warren said. 

Industry prefers no rule at all

Warren said the Apartment Association was opposed to any rules for mediation programs, but in her written comments to the court said if guidelines were adopted, her client preferred exhibit B. 

During the hearing, she said the Apartment Association and Nevada Realtors would rather support recommendations put forward by the Nevada Judges of Limited Jurisdiction, which represents judges from courts throughout the state, that said courts should be allowed to opt-in to provide mediation programs rather than be mandated and put limits on tenants seeking mediation.

“We believe this mediation program inappropriately asserts the court into the process, indirectly advocating for the tenant by forcing mediation,” Warren said. “We have concerns about the court’s neutrality as any mandatory program feels blatantly biased in favor of the tenant.”

Courts wouldn’t oversee mediation directly.

Berchtold said Home Means Nevada, a program established by the Nevada Division of Business and Industry, could help oversee some of the process of assigning mediators. 

“We understand (Homes Means Nevada is) a well intentioned nonprofit, but we feel they are an interested party,” Warren rebutted. “If the court were to implement any rule at all, which we urge them not to, we would feel much more comfortable with the court being a neutral arbiter.” 

Nevada Supreme Court Justice Elissa Cadish questioned Warren on how both the courts and Home Means Nevada lack neutrality.

“Are you basically just saying no one can do mediation or isn’t there someone who can?” she asked.

Warren said the people who are best suited to mediate are the landlords and the tenants.

“We’ve seen great success negotiating payment plans with tenants or allowing tenants to simply walk and allow tenants to find a unit they can afford with no eviction involved,” Warren said. “These common-sense solutions are working and require no such mediation program.”

In Clark County, the Las Vegas Justice Court has been working with the Neighborhood Justice Center on eviction mediations. 

The program, justices were told, has received 365 requests for mediation, with 333 coming from landlords as of Sept. 21. Six cases have been settled. 

Warren argued the numbers show that landlords are more interested in negotiations than renters. She also pointed to Apartment Association’s data that says there is a 12 percent delinquency rate among renters but only half of those have attempted to enter payment arrangements.

However, some pointed to the unfair power dynamic between landlords and tenants, and how many renters are unfamiliar with their rights or options during the court process, as obstacles for renters to seek assistance.

A court-mandated mediation process, they say, could help. 

Since the start of the pandemic, LaLo Montoya, the political director of Make the Road Nevada, has received calls from frantic renters who are being harassed by landlords, a problem that is exacerbated if they are undocumented or if there is a language barrier.

“I know families who call me who say they have spent everything they had to pay rent because they are afraid of their landlords,” he said. “I see this mediation program as an opportunity to address the power imbalance between tenants and landlords … We need the support of trained mediators. Those trained mediators would do a lot for kids translating for parents right now. My hope is that these trained mediators would lessen a bit of the burden of these families facing these life-altering moments.”

Tiffany Banks, a lobbyist with Nevada Realtors, also argued Nevada should be focusing on resources to help expedite rental assistance and address the backlog of unemployment claims rather than using money and resources for a mediation program. 

The Nevada Judges of Limited Jurisdiction also worried that mandated mediation programs would put pressure on rural courts that don’t have resources to contend with proposed mediation requirements — let alone a high volume of eviction cases.

Another point of contention was if there would be a sunset period for mediation programs, with landlords and apartment groups urging for any program to expire when the pandemic ends.

This article has been updated to clarify the Nevada Apartment Association’s position on the proposed mediation rules. 

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Michael Lyle
Michael Lyle

Michael Lyle (MJ to some) has been a journalist in Las Vegas for eight years. While he covers a range of topics from homelessness to the criminal justice system, he gravitates toward stories about race relations and LGBTQ issues.