Mountain View's Rental Housing Committee (RHC) voted 4-1 Monday night to launch a legal defense fund for tenants facing eviction after falling behind on rent due to COVID-19, resolving what they describe as a power imbalance between landlords and tenants in court.

The vote puts $45,000 toward legal assistance for tenants involved in unlawful detainer cases, which are on the rise in Santa Clara County and often end in a default judgment against the tenant. Committee members feared that many more tenants will face evictions after the state's SB 91 eviction moratorium expires in June, even in cases where state law protects them from being ousted from their homes.

The city already provides counseling and mediation for landlords and tenants, making legal representation an extra layer of protection for tenants at a time when displacement is considered a public health concern.

"It will offer folks who don't have the money, who don't have any chance of legal representation, hopefully a shot at staying in their homes," said committee member Susyn Almond.

Under SB 91, tenants are protected from evictions due to nonpayment of rent through June 30, provided they pay back 25% of unpaid rent accrued since September 2020. After that, the remaining balance of back rent turns into consumer debt that cannot be used for the basis of an eviction. Though it's unclear how many tenants in Mountain View are behind on rent, landlords in the city have filed 530 notices for failure to pay rent between March 2020 and March 2021.

Despite the statewide protections, the number of eviction cases in Santa Clara County have increased, and many are going straight to a default judgement in favor of the landlord, according to RHC staff. That means tenants are not responding and are waiving their rights to fight against evictions, even if they are protected under SB 91 or other tenant protections. As many as 95% of tenants are unrepresented by legal counsel in these eviction cases.

"Consequently tenants are being displaced without a judicial check on correct or incorrect eviction proceeding," according to a staff report.

Though most unlawful detainer cases are straightforward, SB 91 adds a lot of complications into already technical eviction procedures, said Anky van Deursen, program manager for the city's Community Stabilization and Fair Rent Act (CSFRA). That opens up the possibility that landlords are erroneously filing eviction cases against tenants who are within their rights to stay. While taking one case all the way through the court process would likely cost $5,000, van Deursen said most cases will not make it that far and cost far less.

RHC staff could only speculate as to why so few tenants are responding to eviction proceedings. Van Deursen said it could be that these are "informal evictions," with landlords filing to remove tenants and hoping they just leave on their own. Karen Tiedemann, an attorney for the RHC, said it usually comes down to a lack of representation in court and tight deadlines for a response.

"My experience in the field is tenants don't respond because they don't have legal services and they don't know how to respond," she said. "And it's a five-day response period, unlike most court cases where you have 30 days, so a lot of tenants miss that time period because it's so quick."

Apartment owner Jeff Zell pushed back against the legal defense fund and the characterization that many tenants go unrepresented, and said he was "appalled at how grossly uninformed and uneducated" the RHC was on the issue of evictions. Zell said he believes default judgments are fueled by tenants who are too far behind in unpaid rent, and are opting instead to just get out and move somewhere else.

Zell also bristled at the idea that landlords -- who pay to operate the city's rent control program and the RHC -- would be paying for a legal defense fund explicitly for tenants.

"Ironically, we are paying the RHC to defend our own evictions," he said.

Committee member Julian Pardo de Zela, who voted in opposition to the legal defense fund, said he worries that the RHC is clearly taking a side in favor of tenants when it's supposed to be a neutral body charged with administering rent control. There are plenty of small landlords who have struggled through the pandemic, he said, yet the focus remains solely on tenants who are behind on rent.

"The rent stabilization program is intended to stabilize the entire community," he said. "It's not intended just to be a mechanism to advance the interests of tenants at the expense of landlords."

Committee members grappled with whether the legal defense fund should only be for tenants facing eviction due to nonpayment of rent specifically related to COVID-19, or whether the money should go toward tenants in rent-controlled apartments or all tenants. Legal defense would only be available to those making up to 120% of the area's median income, and would essentially function as a pilot for the upcoming fiscal year.

Committee member Matt Grunewald, though no longer a voting member, questioned whether the proposal sets a bad precedent. Eviction due to nonpayment of rent is a general housing problem, not a rent control problem, and might be better handled by the city if costs escalate.

Pardo de Zela said he's under no illusion that the legal defense fund is a temporary or will go away once COVID-19 ends and unpaid rent due to the pandemic is resolved.

"There's nothing more permanent than a temporary government program, and this is not going to be a one-year thing," he said. "Next year when COVID is gone ... there is going to be another reason to give money again to this type of thing."