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The Legal Fiction of the “No-Fault Eviction”

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There has been a lot of talk among tenants’ rights groups, the press and others in Portland about “no-fault” or “no-cause” evictions, but the truth of the matter is there is no such thing as a no-fault eviction.

The term likely evolved as a spin-off of the term “no-fault divorce,” which is a legal term in most states where couples can file for divorce without claiming wrongdoing by the other party. Lately the term “no-fault eviction” is being used to describe a situation where a tenant, who has not violated any terms of the lease and paid rent on time, is nevertheless required to move out at the end of the lease when it expires. The “no-fault” part of the term certainly applies – neither the tenant nor the landlord are at fault – but that situation is not an eviction, it’s simply the end of a lease. Nobody is alleging that the tenant did anything wrong, or that there was any kind of misconduct on the tenant’s part; the landlord is simply saying, “Your lease has expired and I choose not to renew it.” If the tenant moves out at or before the end of that lease, there’s no fault on the tenant’s part and it’s not an eviction, it’s simply non-renewal of an expired contract. Just as a tenant is free to not renew a lease when it ends and move to another place, a landlord has the same right to decline to renew the lease.

A situation like that only becomes an eviction when the tenant refuses to leave at the end of the lease. If a tenant stays past the expiration date stated in the lease, he or she becomes a trespasser and the landlord must institute eviction proceedings to have them legally removed. At that point it’s an eviction, and it is not “no-fault.” There is fault on the tenant’s part for not leaving the premises after his or her legal right to be there expired. Courts will not evict tenants that have not done anything wrong – if you have a current lease, you pay your rent on time, don’t damage the premises, aren’t a nuisance to other tenants and generally follow the rules, a court will not grant an eviction order. There cannot be an eviction without fault.

Think about it in terms of another common lease arrangement – leasing a car. When you lease a car, like an apartment, it’s for a defined period of time (1 year, 2 years, etc.), and when that time is up, you have to return the vehicle to the dealer. Nobody in that situation says their car was repossessed. Similarly with rental properties, when the lease is up you have to turn the property back over to the owner; you can’t keep it indefinitely. Calling an expired residential lease an eviction is akin to calling an expired car lease a repossession – it’s simply not the case.

Why is this important? As I pointed out in a previous post about anonymous flyers advising tenants to force their landlords to evict them, being evicted can have a devastating impact on your ability to get a new place to live. Most landlords (myself included) will not rent to tenants who have evictions on their record, and most public assistance programs (GA, Section 8, etc.) will terminate housing benefits if you’ve been evicted, and those are just two of the negative consequences. But until a landlord files an eviction case (forcible entry and detainer, if you’re not into the whole brevity thing) it’s not an eviction, and to refer to those situations where no eviction has taken place as “evictions” doesn’t help advance the dialogue on this issue.

The term “eviction” is dripping with implications of force, inequity and malice. Using it in these situations demonizes landlords who are simply not renewing leases and makes them out to be evil actors who are kicking people out of their apartments while they still have a right to be there. And while there certainly are landlords out there that attempt to wrongfully evict tenants, not renewing a lease isn’t illegal, so to lump the actions of landlords who are following the law in with the ones that aren’t does everyone a massive disservice. If you were to read an article talking about a “mass repossession of vehicles” only to find out that the cars being “repossessed” were just cars turned in at the end of the lease, you’d laugh or at least scratch your head wondering why they’re calling those “repossessions.” Yet somehow the term “mass evictions” has been bandied about in reference to situations where there hasn’t been a single eviction. Many people are shocked to learn that there hasn’t been a single eviction in the Grant Street complexes that have been in the spotlight, and public opinion of the issue would be vastly different if people realized that these were simply non-renewals of leases, not forcible removals of tenants mid-lease as the term “eviction” implies. The language in this discussion is critically important, and misbranding these as “evictions” only serves to paint law-abiding landlords’ right to not renew a contract (the same right the tenant has) as an evil and prohibited action, which it is not.

If we truly want to work together to advance the discussion on these issues, it’s on those of us involved to change the jargon being used so that it reflects the reality of the situation. We don’t refer to car dealers as repossessing cars when those leases expire, so people need to stop referring to landlords as “evicting” tenants when their leases expire. Let’s call it what it is – non-renewal of a lease – because that’s all it is. Sure, it’s true that there’s no fault, but there’s also no eviction.