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PROVO — The BYU Center for Peace and Conflict Resolution has begun conducting arbitration hearings for students and landlords locked in housing contract disputes related to the burdens imposed by the novel coronavirus pandemic.
The arbitration hearings, overseen by a third-party retired judge, will be legally binding.
“We decided to hire a retired judge to be the arbitrator because we knew that these were going to be especially contentious and high-profile cases and they were likely going to rely on an interpretation,” Benjamin Cook, director of the BYU Center for Peace and Conflict Resolution, said. “There’s a provision of the housing contact that’s really the key legal issue that talks about catastrophic loss. Most of the tenants are saying this is catastrophic loss and a lot of the landlords are saying it’s not.”
The arbitrator’s decisions are likely going to come down to the interpretation of the clause in the BYU housing contract that says students can terminate their contract if they leave “school due to a verified unforeseeable and unexpected catastrophic loss or serious illness,” Cook said.
This clause appears in most contracts as BYU requires all single undergraduate students to live in approved housing unless they receive approval from the Off-Campus Housing Office. The clause has been interpreted to mean different things by various stakeholders.
“A lot of these are going to come down to how the arbitrator is interpreting that provision in light of each of these circumstances that come before him,” said Cook, who is a court-qualified mediator and an associate professor at the J. Reuben Clark Law School.
The arbitrator and the center’s work will go on for some time as the center has seen a surge in requests. A wave of students are hoping to get out of their housing contracts after BYU encouraged them to return home in light of the pandemic, but the landlords are reluctant to let them do so because of the financial burden this would impose.
The center, which is connected to the J. Reuben Clark Law School, conducts about 180 mediations a year, but it’s received around 200 requests related to COVID-19 in just a few weeks, according to Emily de Schweinitz Taylor, the center’s assistant director.
The center, which has been conducting mediations and arbitrations via Zoom, has done about two dozen mediations a week since March 25, Taylor said. Mediators do not act as judges, but they do help guide parties through a negotiation of issues. Those who can’t settle during the mediation session can request arbitration.
Provo Mayor Michelle Kaufusi and the BYU administration have encouraged landlords to release students from their housing contracts, but are leaving final decisions between students and the property owners.
Some landlords are letting students out of their contracts without either party requesting mediation from the center, others have not budged. Cook said those requesting mediation have had mixed results. Some landlords are willing to work with students and others are not as “willing to be flexible.”
The arbitrator’s decisions are expected to be posted to the center’s website in the coming week. The decisions deal with individual cases but could incentivize landlords and students to be more flexible during mediation, Cook said.
BYU student Benjamin Schneider said he was given the option to cancel his housing contract after he reached out to his landlord explaining that he has a car and student loan to pay off, is searching for a job and doesn’t feel living in Provo under the circumstances is best. He cited the clause pertaining to terminating contracts based off of “unforeseeable and unexpected catastrophic loss,” and was told he could cancel after forgoing his security deposit and last month of the contract’s rent.
On the other hand, Annie Kate Cutler said she’s been unsuccessful in canceling her contract. The BYU junior said she was hit by a car in February. While she initially was able to remain in her apartment because she had roommates to help her navigate the injury, once they moved out because of coronavirus, she needed to leave as well.
Cutler emailed her landlord explaining the situation and was told to provide documentation proving the injury prohibits her from living alone. When she did, Cutler said her request was denied. She has since moved out and hired a lawyer to help sort the situation.
The center and the arbitrator also invited students and landlords to submit amicus briefings detailing arguments related to the issue.
Cook said the arbitrator will consider the arguments as well as factor in similar cases conducted in the past, however, this is challenging because “circumstances are so unique.” The arbitrator will also likely look at the implications of what might happen if all students were allowed to cancel their contracts under the clause.
It is not a simple situation and the center is striving to be as fair as possible for both landlords and students, Cook said.
“I think it’s important not to assume bad intent on either side,” he said. “There aren’t a lot of bad people here – there are a lot of good people who are struggling.”
