Off-campus housing arbitrations split

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A retired judge acting as an arbitrator ruled in favor of one student seeking to terminate her BYU off-campus housing contract due to COVID-19 Thursday, May 7.

The ruling was made by Anthony W. Schofield in an arbitration case overseen by the BYU Center for Peace and Conflict Resolution (CPCR).

Schofield ruled against another student seeking the same thing. These were the center’s first two rulings in coronavirus-related housing arbitrations the center is currently overseeing.

The CPCR accepted amicus briefs from students from April 23-28, during which time they received 27 briefs. Amicus briefs are written statements from landlords and students, outlining on what legal basis students can or cannot terminate rental contracts. CPCR Director Benjamin Cook said this was being done “in fairness” to inform Schofield, the arbitrator deciding on the initial cases. Schofield is a retired presiding judge in Provo’s 4th District Court.

A single student walks outside the Wilkinson Student Center after the campus was closed down. Many students fighting their rental contracts are no longer living near Provo. Instead of visiting the Center for Peace and Conflict Resolution in the Wilkinson Student Center, they are using Zoom to mediate and arbitrate their conflicts with landlords. (Hannah Miner)

Each brief could represent a number of complainants. Some of these briefs were similar to that of Julie Brooks. “I worked with a team of attorneys, law students and regular BYU students,” Brooks said.

In an email exchange, Brooks sent her amicus brief to Rosemary Thackeray, BYU assistant to the president. According to Thackeray, her job is to present data to the President’s Council. In an email, Thackeray asked for Brooks’ brief so that she could “share (it) with members of the BYU President’s Council.”

When the Universe reached out to Thackeray, however, she said that the President’s Council would not be reviewing the brief. “I personally asked for permission to share with others in case I wanted to share at some point,” she said.

Key legal definitions from the Student/Landlord Contract section 23b were explained in both rulings. The section reads: “If the student leaves school due to a verified unforeseeable and unexpected catastrophic loss or serious illness, the student can terminate their own contract.”

According to Schofield, the term “leaves school” means that the student does not enter campus. A majority of buildings on campus were closed, making it impossible for students to physically attend class. To “leave school” does not mean that a student withdraws his or her enrollment from the institution. He also pointed out that the BYU Off-Campus Housing Office encouraged students to consider leaving campus and returning home — an announcement that was emailed to landlords and tweeted by the university on March 12.

Landlords represented in the first rulings complained about the term “verified” in the student/landlord contract. According to Schofield’s ruling, an illness can only be verified by “some direct, personal impact of the serious illness.” However, Schofield did not find it necessary that the illness be verified by a doctor but ruled that even a landlord knowing about the individual case of illness was enough to be a “verified” illness.

When it came to the term “serious illness,” Schofield clarified that “a tenant can leave due to the illness even if the tenant is not personally sick with the illness.” But he added that “the illness must have a direct, personal effect on the tenant.”

The first student successfully terminated her contract in the first ruling. She had a roommate who was experiencing “COVID-19 like symptoms” and her landlord knew about it. By the time of the arbitration, she had already paid the month’s rent for March and April, also subsequently giving up her security deposit because she had left some belongings behind in her apartment.

In contrast, Schofield ruled that the second student’s situation was not enough to terminate her contract. She did not have an instance of “serious illness” because she did not have any direct contact with anyone experiencing symptoms. According to Schofield, it was clear that because approximately 60% of the tenants in the student’s building continued living there, “performance of the lease is still possible for both parties.”

Both students alleged to have lost work, one due to a furlough and the other due to reduced hours. Schofield did not classify this as “catastrophic.” Instead, he cited the Merriam-Webster definition of the word, which reads, “a momentous tragic event ranging from extreme misfortune to utter overthrow or ruin.”

CPCR Assistant Director Emily de Schweinitz Taylor said she doesn’t know when all arbitrations regarding rental contracts will be finished. “We have not set an exact number of cases for Mr. Schofield to hear, but we intend for him to hear enough variety of cases to review the contract from several different angles,” de Schweinitz Tayler said.

Each session is scheduled to take only 90 minutes, following a seven-day period for Schofield to make a decision. Parties can still appeal these arbitration rulings in court.

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