The city of Seattle, fresh off a huge courtroom loss in its campaign against “unconscious bias” by landlords, is facing another challenge to a newly created measure that conceals any criminal history of a prospective tenant.
A lawsuit has been filed over the city’s ordinance, adopted just months ago, that calls it an “unfair practice” for landlords to ask about a prospective tenant’s arrest records, conviction records or other criminal history, or “to take an adverse action” based on criminal history.
It even makes it an “unlawful practice” to refuse to rent to prospective tenants who are on a sex offender registry. And it bans landlords from making decisions based on their own personal safety, the safety of other tenants, or discomfort with convictions for “sex offenses, crimes against children, or even hate crimes.”
The action was brought by the Pacific Legal Foundation on behalf of several property owners that would be impacted by the rule.
Called the Fair Chance Housing Ordinance, it “forbids landlords from considering applicants’ criminal histories when selecting tenants.”
“In other words, landlords cannot base a rental decision on concerns over their own safety or the safety of other tenants and neighbors. Violators face fines and penalties of up to $55,000,” PLF said.
The lawsuit filed in King County Superior Court argues the ordinance violates the Due Process and Free Speech provisions of the constitutions of Washington and the U.S.
That’s the same court that ruled earlier this year that a city measure requiring landlords to rent to the first applicant, no matter other circumstances, was unconstitutional. The decision said choosing a tenant is “a fundamental attribute of property ownership.”
“Seattle can’t decide what landlords are allowed to know about potential tenants,” said PLF attorney Ethan Blevins. “Landlords have the right to protect themselves by asking basic questions about a potential tenant’s criminal history.”
One of the plaintiffs is Kelly Lyles, who rents out a second house she owns.
PLF is arguing that such landlords, whose livelihoods depend on steady rental income, have the right to choose tenants they believe will be reliable and compatible.
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The lawsuit points out that the new ordinance exempts federal housing projects.
Landlords, the filing explains, “have a legally recognized duty to protect tenants from harm by third parties, including from other tenants.”
“Landlords can even become criminally liable for certain offenses committed by their tenants,” and “the Washington State Supreme Court posited that if a landlord may be held liable for the foreseeable criminal acts of third parties, ‘it would seem only reasonable that the landlord should at the same time enjoy the right to exclude persons who may foreseeably cause such injury.’
“A tragic example of this issue recently arose in Illinois in which a tenant raped and murdered a neighboring tenant. The victim’s family has sued the landlord for failing to perform a criminal background check,” the filing said.
The case seeks to have the new code provision halted.
The earlier case over another city ordinance involved a requirement that landlords rent to the “first” applicant.
A judge later gave landlords permission to pick their own tenants, deciding “choosing a tenant is a fundamental attribute of property ownership.”
Judge Suzanne Parisien granted summary judgment for the plaintiffs.
“There is no genuine issue as to any material fact,” she wrote. The landlords challenged the ordinance and while it contained “a laudable goal,” she found “it is undisputed, and specifically acknowledged by the city, that the FIT rule affects a landlord’s ability to exercise discretion when deciding between potential tenants that may be based on factors unrelated to whether a potential tenant is a member of a protected class.”
The plaintiffs had claimed constitutional violations: taking property without compensation, taking their property for an improper public use, violation due process and violating free speech.