Posted December 30, 20186:00 am
By Rachel Dissell in The Plain Dealer on 12/30/2018
Cleveland Housing Court is making it easier for tenants to ask to seal an eviction record with a new court rule that takes effect this week.
Once sealed, eviction record will no longer appear online or be available from the clerk’s office, limiting what landlords can find out about potential renters.
Housing Court Judge Ron O’Leary said the rule, a first in Ohio, lays out "objective criteria” for when and how the court will consider record-sealing requests.
Thousands of eviction cases are filed each year, more than 8,500 in 2017, but the court seldom gets requests from tenants asking for those records to be sealed, sometimes called an expungement.
In 2018, for instance, the court received three requests, two of which O’Leary granted and one that he denied.
That’s likely because most people don’t know they can ask.
Nothing in Ohio’s statutes currently governs the sealing of eviction cases, though judges who handle housing cases can deny or grant such motions because they are in charge of the court’s records.
The Legal Aid Society of Cleveland, which represents low-income clients in housing court, urged the court to create the new rule as a way to remove an obstacle to finding safe, affordable housing.
In a letter to the court, Legal Aid attorneys noted that landlords often mistake an eviction filing for an actual eviction, even if the case is settled or dismissed.
A court employee also shared a personal experience with O’Leary, about how an eviction from two decades earlier prevented her from renting an apartment.
“The landlord told her, ‘I can find someone who’s never been evicted,’ ” O’Leary said.
Balance for landlords and tenants
In creating the rule, O’Leary said he sought to balance the ability of landlords to screen potential tenants, which the court encourages, with giving tenants a chance to clear a record that can limit their housing options.
Some landlords voiced opposition to the new rule this fall when the court sought public feedback through its website and newsletter. The court received about 30 responses in the form of letters, memos and emails.
One landlord, who owns a West Side rental wrote: “Simply put, I am against expungement of evictions…It’s difficult enough weeding our good tenants from bad tenants. If you expunge these records, my hands will be further tied, and unwanted tenants will find their way back in.”
A Cleveland tenant named Maria shared her story in a handwritten letter. Years ago, she said she was evicted when she was ill and unemployed and fell behind on her rent.
It left a mark on her record, one she didn’t think should follow her for life.
“I would like to be one of the first eviction clients to have my record sealed. Please let me know when I can do this,” she wrote.
Under the rule:
- The court must find that sealing the record is in the interests of justice and outweighs government and public interest in having the record available.
- An eviction record can be sealed right away if the case is dismissed by the court, if the tenant prevailed or if sealing the case is part of a settlement agreement or the landlord agrees in writing.
- If an eviction was granted, a case can be sealed if five years have passed since the tenant last had an eviction granted against them in Cleveland or any court and they demonstrate that “extenuating circumstances" led to the eviction.
- The court also may consider whether the tenant paid any money owed under previous eviction judgments or settlements.
- Records can be “unsealed” if the need is demonstrated and would still be available to the landlord and tenant involved.
The court will have a form on its website in the next few weeks and a motion available that can be filed along with supporting documents. O’Leary plans to set the cost for filing the motion at $25.
Legal Aid attorneys will help clients seeking to seal evictions and will likely help educate the public and give advice on navigating the process, Abigail Staudt, managing attorney said.
Across the country, the process for sealing an eviction, if available, varies.
In California, eviction records are automatically sealed if the landlord doesn’t win the case within 60 days. In Wisconsin, cases that are dismissed are sealed after two years if no money is owed by the tenant.
Other states, like Illinois and Nevada and Minnesota, have state standards that allow certain eviction filings to be sealed, for instance if the renter’s home was foreclosed upon. Or if the tenant can show there’s “good cause” to expunge the eviction record or whether the benefit to the tenant outweighs the public interest.
Not like a criminal record
Having an eviction sealed, though, is different than having a criminal record sealed O’Leary said.
When a criminal record is sealed, it is as if it never happened and a person can report on a job application that they don’t have a record. A person doesn’t have to report the record on any application, public or private, if they have had the record sealed. Public employment applications for most jobs no longer contain the question.
If on a rental application, a question asks about completed evictions that are sealed, a person would have to answer truthfully.
To change that, lawmakers would have to amend Ohio law to treat the sealing of evictions, which are civil, similarly to criminal records, O’Leary said.
Open record concerns
The Housing Court rule also drew scrutiny from First Amendment and open records advocates, including groups from local law schools.
Cleveland-Marshall College of Law students cautioned the court to consider “grave concerns” about sealing records that are vital to the public understanding of how evictions impact people and communities.
The group pointed nationally to the work of Matthew Desmond, author the Pulitzer Prize winning book Evicted: Poverty and Profit in the American City, which follows families and landlords through the process along with using local data to show the human and community costs of evictions.
Desmond, a sociologist, now runs The Eviction Lab at Princeton University which relies on data to study eviction trends. He spoke in Cleveland earlier this year.
“Only court records can fully expose the root causes and social cost of failed eviction actions,” the letter from the First Amendment, Media, & Entertainment-Law Practicum stated. “Only court records can direct public attention to malfeasance, corruption and discrimination in Cleveland’s beleaguered tenancies…” and the inadequate funding for affordable housing and legal services available to Cleveland tenants as they are sued and displaced.”
The group cited an example of an eviction earlier this year that prompted Cleveland Councilman Tony Brancatelli to investigate a landlord with many properties in his neighborhood. What he learned led him to support a “right-to-counsel” for tenants, which could lead to legislation in 2019.
Case Western Reserve University Law School’s First Amendment Clinic recommended, among other changes, to protect the public’s interest by limiting the sealed part of the court record to information such as name and date of birth.
O’Leary said he understands those concerns though, at this point, it would not be possible to redact only part of a record. The court, under the rule, will consider whether the interests of justice for the tenant outweigh those of the government and public to have the information.
Aggregate information on how many eviction motions are filed, granted, and how many motions to seal were filed and granted, will still be available and reported to the Ohio Supreme Court, he said.
Those reports would not include personal information for the parties or the location of the rental, which normally is available to the public. Records that researchers obtain from the court will not include the sealed cases.
Because the process is new and might require adjustments, O’Leary said the court would likely take a look at how it is working in mid-2019 and consider adjustments or modifications to the process.