First in Time Lawsuit: Yim et al. v. City of Seattle

By Evan L. Loeffler

The First in Time lawsuit continues. The City of Seattle filed an answer to the plaintiffs’ complaint in early April essentially denying all relevant allegations and claiming the matter should not be litigated.

In 2016, the Seattle City Council enacted the “First in Time” ordinance restricting landlord’s tenant-selection process by requiring landlords to rent to the first applicant that satisfies the landlord’s advertised rental criteria.  A group of landlords sued the city, arguing that the ordinance improperly violates landlords’ constitutional rights. The complaint argues that the First in Time ordinance improperly affects the rights of landlords by violating the constitutional “takings” clause, the landlords’ right to due process and the landlords’ right to free speech.

The plaintiffs’ first allegation is that the ordinance is an impermissible “taking.”  The Washington State Constitution provides that the government may not appropriate the property of a private citizen without just compensation.  In other words, the government may not take a citizen’s property without paying for it. This is also a right protected under the U.S. Constitution.

First in time lawsuit curtails rights plantiffs say

The plaintiffs allege that since the right to sell or lease property to a person of the owner’s choosing is a protected property right (the Washington State Supreme Court ruled as such in 2000), and since the First in Time ordinance curtails that right by requiring owners to rent to the first qualified applicant, the City has taken a property right without compensation.

The City filed an answer to the complaint denying that denies this is a taking and therefore no just compensation is required.  The City may argue later that, to the extent there may be a taking, it has a right to do so in order to advance a legitimate public purpose whose importance outweighs the individual rights of property owners.

Landlords argue due process rights violated

The plaintiffs’ second argument that the ordinance is unconstitutional states that landlords’ due process rights are violated.  The complaint alleges the City Council improperly determined that unfair housing practices are prevalent in Seattle.   Members of the City Council were quoted stating the intention of the First in Time ordinance is to curtail unfair housing practices by landlords who may unconsciously make biased decisions when choosing tenants.  The housing study relied on, however, concluded that the alleged bias was not a provable fact.

Therefore, the First in Time ordinance is improper and not reasonably necessary as its goal is to police against an implicit bias that has not been proven.  Further, the plaintiffs argue that the ordinance is overbroad and unduly burdensome to landlords because the First in Time ordinance would apply even if none of the qualified applicants belong to a protected class.

Landlords’ free speech rights violated they argue in first in time lawsuit

The third charge the plaintiffs make against the ordinance is that landlords’ free speech rights are improperly curtailed.  Landlords are already required by the City of Seattle to register with the City in order to be allowed to rent their residential property.  In order to keep one’s registration, each landlord must agree to comply with Seattle’s landlord-tenant laws including the First in Time ordinance.  The complaint alleges that complying with the ordinance in order to obtain a permit to conduct one’s business impermissibly infringes upon the landlord’s commercial speech rights.

What the landlords are requesting is “declaratory relief,” which means that they want the court to issue an order that says the First in Time ordinance violates the Washington State Constitution.  The plaintiffs further request an order prohibiting the City of Seattle from enforcing the legislation.

The City has not responded substantively to the pending action as of this writing.  The answer filed with the King County Superior Court states only that the allegations are incorrect and that the controversy is not “justiciable,” meaning that the court does not have the authority to rule on the issues presented.  As the case progresses through the system—a process that may take over a year—the plaintiff landlords and the defendant city will better define their arguments.  Once the trial court judge makes a decision, the matter may be appealed.  The appellate process may take another year.

As with nearly all litigation, the sides have staked out positions that are polar opposites.  In their most basic form, the arguments may be characterized as follows:

    • The City takes the position that landlords cannot be trusted to not violate fair housing laws, so it is imposing requirements on Landlords to save them from making unconscious decisions that might be discriminatory.
    • The landlords opposing the legislation accuse the city lawmakers of enacting laws to stamp out “thoughtcrime,” a term coined in George Orwell’s novel, Nineteen Eighty-Four, where a repressive and overbearing regime criminalized unspoken beliefs and doubts that questioned the ruling party.

The final ruling on this is many months, maybe years, away.

Unless a court makes a preliminary ruling concerning the enforcement of the ordinance—and no such ruling has been requested by the plaintiff as of this writing—landlords must comply with these requirements.

Landlords unsure of how to comply should consult their legal representative for guidance to avoid fines and costly litigation.

See Rental Housing Journal story “Landlords Sue Seattle Over Right To Choose Their Tenants.”

About the author:

Evan L. Loeffler is the principal at the law firm, has practiced law in Washington since 1994 and is the author of multiple landlord-tenant law sections in the Washington Lawyers Practice Manual. He frequently lectures and teaches continuing legal education (CLE) courses on the subject of ethics and landlord-tenant law. Mr. Loeffler relies on extensive litigation experience and knowledge of the law to effectively represent tenants and landlords in Seattle and surrounding counties. He received his law degree from Gonzaga University School of Law in 1994. He is the author of the Real Estate Closing Deskbook, Third Edition, published by the American Bar Association.You can contact him at 206.443.8678.