As court consider parameters of eviction mediation program, debate over how widely to open door
Before coronavirus hit, Yanneth Romero had dreams of buying a house. Now, it’s been four months since she has paid her rent.
The furloughed Las Vegas Strip housekeeper said she’s living on a shoestring — a situation made harder when her in-laws lost their home in California and doubled up with Romero, her spouse and three children. Nobody in the home is working; they expect their credit will be shot after the experience.
“Right now, my pandemic unemployment is the only source of income for my family, and it’s getting harder and harder to survive on just that,” she wrote in remarks submitted to the state. “My children need stability to be able to do well in school through virtual learning. Our family needs to stay safe from COVID-19.”
Romero is one of the many Nevadans calling on the Nevada Supreme Court to adopt regulations that would allow tenants or landlords to request mediation when an eviction looms. A Tuesday hearing to consider the two primary proposals comes nearly two months after lawmakers authorized a mediation program as a way of preventing a sudden rush of evictions when ongoing moratoriums created in response to the pandemic are lifted.
The Guinn Center for Policy Priorities has estimated that more than 100,000 households could be struggling to make their rent payments this fall. While the moratoria and federally funded rent assistance programs are helping to soften the blow, they have been slow to get aid out the door — less than $6 million of the $70 million has been disbursed in Nevada in the first two months — and only provide three months of payments to landlords on behalf of tenants who have fallen behind.
“Rental assistance programs have been created to serve as eviction prevention programs,” Bailey Bortolin of the Nevada Coalition of Legal Service Providers wrote in remarks to the court, “but without mediation and settlements, they cannot always achieve that goal and may instead operate as landlord repayment programs, with evictions following shortly after repayment because this crisis has no end date in sight.”
Under a proposal favored by the Legal Aid Center of Southern Nevada, either a tenant or landlord may request mediation of eviction proceedings, and an administrator must promptly schedule a mediation session for before the date of an eviction hearing.
A landlord’s failure to appear will lead to the dismissal of the summary eviction action. If a tenant fails to appear, the court will proceed with a pre-scheduled summary eviction hearing. Neither the landlord nor the tenant has to pay for the mediation; the mediator’s time is billed to the Administrative Office of the Courts.
But opponents, including Southern Nevada Eviction Services President Edward Kania, fundamentally disagree with the project. Kania wrote that some tenants are refusing to negotiate with their landlords on a payment plan and are simply trying to live for free as long as possible, and that mediation forces compromises that landlords are not obligated to make.
“Throughout the series of eviction moratoria extensions, the Governor has repeatedly stated that tenants are still responsible for the full payment of rent,” Kania wrote. While some landlords may voluntarily write off some of that obligation, “that decision should be the landlord’s decision … he should not be required to participate in a mediation to compromise on rent which the Governor has repeatedly said must be paid in full.”
Representatives of the Nevada State Apartment Association support more prerequisites to mediation, including an attestation that the renter is struggling because of COVID-19, and a requirement that the renter had tried to negotiate with their landlord before moving to mediation.
Removing eligibility requirements enables tenants “who are not truly impacted by COVID-19 to arguably prolong the eviction process and further evade their contractual duties,” wrote association lawyer Mackenzie Warren.
The Legal Aid Center of Southern Nevada opposes the eligibility rules that the apartment association calls a “critical threshold.” The center argues, among other things, that tenants often face an intimidating power imbalance when communicating with their landlord and should not be automatically excluded from mediation if they can’t say they’ve tried to negotiate with their landlord.
The apartment association also disputes that an “eviction tsunami” is even on the horizon at all. The group reports a 12 percent delinquency rate in Clark County, but says more than half of those behind on their rent are in payment plans with their landlords.
They estimate that a small fraction of those in payment plans will default — perhaps 1,300 households — while another 2,500 tenants are not communicating with their landlords at all and presumably have stopped paying without a coronavirus-related reason.
Courts also raised some objections. Diana Sullivan, president of the Nevada Judges of Limited Jurisdiction, argued that the mediation program puts extra work onto courts even though its stated intent is to reduce the burden a wave of evictions might place on courts. She also said that it appears tilted in favor of tenants over landlords.
“The program seems to be driven by a process that places the court in a position of indirectly advocating for the tenant,” Sullivan wrote, “by forcing mediation in which a mediator will in essence take on the role of a social worker and financial advisor whose sole focus is to allow the tenant to maintain occupancy of the dwelling unit instead of mediating a bona fide legal dispute on the merits of the summary eviction action.”
The legal aid center said they sought to address workload concerns by enlisting a “mediation administrator” who could schedule mediation sessions. Home Means Nevada, the agency that has administered the foreclosure mediation program created during the Great Recession, has agreed to help manage the program if a court requests.
Advocates, many of whom said they want to testify live during the virtual hearing, said the court needs to move quickly on implementing the program to prevent homelessness driven by Nevada’s catastrophic job losses.
“With the end of the eviction moratorium looming, thousands of vibrant and beautiful working families are at risk of eviction and desperately need decisive action that will offer them dignity and the ability to care for themselves and their families,” wrote Leo Murrieta, executive director of Make the Road Nevada.