Opponents of Portland’s ballot measure to limit rent increases, known as Question 1, have argued that the way it would alter the eviction process for many landlords and tenants in the city would violate state law.

Attorneys who specialize in landlord-tenant issues in Maine disagree on the extent to which the proposed ordinance would conflict with existing eviction statutes. But some agreed that it would create initial confusion and probably be challenged in court by landlords.

Among their criticisms was that the proposed rules would make it impossible to quickly evict serious problem tenants, and that it would force landlords into a mediation process that lacks the authority to enforce its decisions.

If approved, Question 1 is likely to create opportunities for Maine lawyers as the courts work out how to interpret the ordinance’s language, said Les Wilkinson Jr., an attorney with Lipman & Katz in Augusta.

“I think it’s going to be a bit of a bonanza,” he said.

Question 1 contains three distinct sections that include controlling rent increases, altering the eviction process and creating a seven-member volunteer board with broad powers over the city’s rental market. The board’s responsibilities would include presiding over cases in which a landlord seeks to evict a tenant who does not want to be evicted.

Depending on whom you ask, the board either would provide a money-saving alternative to the courts for mediating such disputes or present a burdensome layer of additional bureaucracy with no authority to enforce its decisions.

Supporters of the measure say the vast majority of landlord-tenant disputes are minor and could be resolved through mediation by the board instead of ending up in court. Landlords seeking to evict unwilling tenants would be required to bring the matter before the board for mediation and could be assessed a fine by the board if they failed to do so.

A TOOTHLESS MEDIATION BOARD?

But Wilkinson said the board’s mediation process would not offer landlords a viable replacement for the court system when it comes to serious problems such as a destructive or law-breaking tenant, because there is no guarantee that the tenant would accept a board ruling in favor of the landlord, and the board would have no authority to force such a tenant to vacate.

The tenant could simply ignore the board’s ruling, he said.

“I don’t see how landlords are going to enforce the board’s decision,” Wilkinson said.

Jack O’Brien of Fair Rent Portland, the group behind Question 1, agreed that the board would have no legally binding authority to force landlords or tenants to do anything, but he said that was by design.

The board’s purpose is not to usurp the court system, but rather to provide a less costly alternative that would be adequate for the vast majority of landlord-tenant disputes, which tend to be minor, he said.

“We were quite surprised at the level of hysteria that the landlords brought forward about this,” O’Brien said.

He noted that the proposed ordinance’s rules regarding evictions would apply only to tenants and landlords with written rental agreements. “At-will” tenancies with no written lease contract would be exempt from the ordinance and subject to existing rules and laws.

Brit Vitalius, president of the Southern Maine Landlord Association, estimated that about half of the roughly 18,000 rental units in Portland currently have at-will tenancies. He added that his organization strongly opposes Question 1.

“I think it’s going to be a mess because I think it conflicts with state law,” Vitalius said. “I think it’s going to be a nightmare.”

SIXTY DAYS’ NOTICE OF EVICTION

Question 1 appears to conflict with state law in that it would violate a statutory right granted to landlords that allows them to break a lease without cause after 30 days’ notification, said David Van Baars, a Windham-based attorney who specializes in landlord-tenant issues. The ordinance would extend the notification period to 60 days and require specific types of cause, such as a tenant’s illegal conduct or breach of the rental agreement.

Even with proper cause, the landlord would have to give the tenant 30 days to “cure” the breach, followed by an additional 60 days’ notice of eviction if the breach wasn’t cured, Van Baars said. The only exception would be failure to pay rent.

“This flies clearly in the face of existing state statutes as well as 200 years of common law. It is also patently ridiculous,” he said. “For example, if a tenant threatens a neighboring tenant with physical harm, and that activity is prohibited by the lease … the landlord would still have to give the offending tenant a 60-day notice to vacate.”

O’Brien disagreed with the assertion that extending the notification period for eviction to 60 days would violate state law.

“We looked at the same statutes, and we thought it was a fair interpretation that the city could extend the fair notice period,” he said.

The proposed ordinance’s restrictions on what qualifies as an acceptable cause for eviction would create other problems for owners of subsidized rental housing, said Dana Totman, president and CEO of Portland-based affordable housing developer Avesta Housing.

Totman said that in order to comply with federal law, owners of subsidized housing must have the ability to evict tenants on grounds such as failure to complete their annual income certifications, and to accelerate evictions for violations of the Violence Against Women Act. As written, it doesn’t appear that Question 1 would allow either of those things to happen in Portland, he said.

“This ordinance does not clearly provide for these types of evictions,” Totman said.

He also noted that Avesta will evict tenants for smoking inside their homes, and that the proposed ordinance does not mention smoking as an acceptable cause for eviction.

“This ordinance is silent on smoking, and we are not convinced smoking would be considered a substantial breach of a material term by the rent board,” Totman said.

Wilkinson said rent-stabilization ordinances have provided substantial benefits to other communities around the country, and that it’s not unusual for initial kinks that need to be worked out with further revisions.

“My expectation is that were this to pass, there would be additional clarifications and additions,” he said. “The lawyers will pick up the remnant fights.”

One of the objections raised by Question 1 opponents is that the ballot measure prohibits any changes to the ordinance for five years, but Wilkinson said that sort of moratorium on revisions and clarifications is highly unusual and likely would not be enforced by city officials.

J. Craig Anderson can be contacted at 791-6390 or at:

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