Tenants at disadvantage in eviction cases, study finds

About nine of every 10 eviction lawsuits in the state result in tenants losing their homes, an outcome that partly reflects a huge disparity in who gets help from attorneys, according to a landmark study that analyzed a decade of Hawaii court data.

The nonprofit Lawyers for Equal Justice found that landlords were represented by attorneys in about 70 percent of cases, compared with just 5 percent for renters.

And in nearly half the eviction lawsuits, the landlords won because the tenants failed to show up in court — even though some likely had justifiable defenses, according to the study’s authors.

Landlords attribute the high percentage of eviction orders to the merits of their cases, which mostly stem from unpaid rent. The judges ensure the process is fair, landlord representatives say.

“If you can’t pay the rent, then you don’t have a defense to an eviction, and the court should issue eviction documents,” said attorney David Chee, who represents landlords and files about 250 eviction lawsuits each year, roughly 90 percent involving late rent.

But even renters who owe back rent may have legitimate defenses without realizing it, given their unfamiliarity with the landlord-tenant laws, advocates say.

And the court procedures, they add, are not easy to understand — especially without professional help.

“A lot of people simply don’t know the process or how to navigate the process,” said Scott Morishige, the state’s homeless coordinator, who as a Legal Aid advocate in the early 2000s helped tenants with that navigation.

Given the complexity of the system, the Lawyers for Equal Justice authors say the stark disparity in representation puts tenants at a distinct disadvantage, results in more evictions and contributes to a problem seen daily on Hawaii’s streets: the highest per-capita homeless rate of any state in the country.

“It’s the feed for the homeless problem,” Victor Geminiani, the nonprofit’s executive director and one of the report’s three authors, said of the hundreds of evictions approved each year. The study, called “Evicted in Hawaii: Lives Hanging in the Balance,” estimated 1,600 to 1,800 evictions occurred in Hawaii in 2017.

The report, which is scheduled to be officially released Monday, was based on a statistical analysis of 500 randomly selected eviction lawsuits, called summary possession complaints, over the past decade; in-court observations of 230 eviction hearings on Oahu in 2010 and 2016; and an examination of outcomes in 500 additional lawsuits filed statewide last year.

The nonprofit organization counted a case as an eviction if the judge issued an order permitting the landlord to regain possession of the unit and the tenant subsequently moved out, even if the order did not have to be executed by sheriff deputies or state-approved process servers.

Some landlords obtain eviction orders as “insurance” but don’t act on them if the tenant pays the delinquent rent, agrees to a repayment plan or simply moves out.

As disturbing as the eviction report findings are, Hawaii might have a relatively low eviction rate.

Princeton University’s Eviction Lab analyzed Hawaii court data from 2007 through 2015 and, based on a preliminary review, determined the state’s eviction rate was 0.6 percent, compared with a national rate of 2 percent to 3 percent, according to Adam Porton, research specialist for the lab.

Representatives for landlords say they would rather not have to file a lawsuit, particularly given the costs involved.

When evictions are granted, neither side comes out ahead.

Landlords must cover the expense of the lawsuit, including hiring a lawyer, and of finding a new renter.

Tenants, who typically are struggling financially, not only see their lives upended but must deal with the expense of moving and finding a new home — a task made harder because of the eviction.

Resolving a landlord-tenant dispute before it even turns into a lawsuit is the preferred outcome, landlord representatives and advocates say.

“What will make my clients happy is to get the tenants to pay their rent, not to kick them out,” Chee said.

Even when eviction orders are granted, Chee added, tenants stay in the homes in roughly half the cases he handles because the two sides agree to a repayment plan.

Couple fights eviction

Edward Aga and his wife Beverly Hamamoto weren’t as fortunate.

Their landlord, Cecelia Bartecki, filed an eviction lawsuit in early November, claiming the couple owed about $3,000 in delinquent rent for their Punahou Gardens unit, refused to vacate it and caused damage to the apartment, according to the court complaint. Bartecki was represented by attorney Kenneth Lau.

Aga, a retired federal police officer who did not hire an attorney, disputed the charges and filed a counterclaim, seeking damages from Bartecki and the property management company she used. He alleged that a scratch on his wife’s leg became severely infected from bacteria linked to defective construction in the Makiki unit, according to court documents. He also alleged rent improprieties. Both charges were disputed.

The court issued an eviction order Nov. 19 after Aga acknowledged that that month’s rent was outstanding, court minutes say. The couple agreed to move out by Nov. 30, so the judge made the eviction order effective Dec. 1 — just in case.

The couple’s counterclaim is pending. Lau, the landlord’s attorney, could not be reached for comment.

Sitting in a court hallway after a recent hearing, Aga told the Honolulu Star-Advertiser that the overall eviction process is unfair. Many tenants can’t afford to hire attorneys, he said, and have to go up against lawyers who specialize in evictions.

“A big-time attorney will bowl them over,” Aga said.

The nonprofit’s eviction report includes recommendations designed to address the representation imbalance and to assist tenants facing eviction — one way to combat a complicated homeless problem that has multiple causes.

Among the study’s recommendations is to expand the authority of trained paralegals and law students to directly advocate for tenants. Studies show that tenants who have representation are far more likely to remain in their homes than tenants who don’t, typically because attorneys are in a better position to negotiate an agreement with the landlord.

Path to homelessness

The goal of reducing evictions in Hawaii is considered important, especially given that the state is one of the most expensive housing markets in the country and has one of the highest percentages of renters. About 43 percent of Hawaii homes are occupied by renters, according to U.S. Census data.

Many tenants have little financial cushion, meaning a sudden health problem, job loss or some other unexpected crisis can put those without outside help on a path to homelessness.

“All it takes in many situations is to have one unexpected event,” said Morishige, the homeless coordinator. “That pushes the family over the edge.”

And evictions can happen quickly.

Once a tenant gets a delinquent notice, a landlord can obtain an eviction order in as little as two weeks if the rent remains unpaid.

If the tenant doesn’t show up for the first court appearance or submit a written response, a default judgment typically is issued. That means critical decisions about people’s homes are being made without knowing all the facts, according to Isaiah Feldman-Schwartz, a legal analyst at Lawyers for Equal Justice and one of the report’s authors.

“We’re not getting the full picture,” Feldman-Schwartz said. “That’s not acceptable.”

Tenants do have some limited options to seek help.

Courts on each of the main islands, for instance, have self-help centers staffed by volunteer attorneys who provide free legal information on civil matters, including landlord-tenant disputes.

The state Department of Human Services also is planning to resume a program that offers low-income tenants facing eviction one-time financial assistance relatively quickly to help them stay in their homes. When that program was operating in 2016 and 2017, eviction lawsuits were being prevented with regularity, attorneys say.

Lawyers for Equal Justice recommends in its report to make several changes to Hawaii law to help provide more balance. It notes, for instance, that the $500 limit that tenants can deduct from rent to repair health and safety violations hasn’t been updated for more than 20 years.

A 2014 study of landlord-tenant laws across the country grouped Hawaii with 19 other states as being “contradictory” — having laws considered pro-tenants and pro-landlords. Thirteen other states, including California and Massachusetts, were designated as generally adopting pro-renter policies, according to the study by Megan Hatch, an assistant professor at Cleveland State University. Seventeen states, including Florida and Illinois, were considered pro-landlord.

Hatch told the Star-Advertiser that she reviewed 16 Hawaii laws as part of her research. Hawaii’s statute requiring landlords to return security deposits within 14 days was among the shortest times nationally and considered pro-tenant, she said. A law allowing Hawaii landlords to fix something damaged by tenants and charging them for the work is an example of a pro-landlord law.