As COVID-19 Safeguards End, Eviction Wave Begins
Alicia Moore, a recently evicted tenant in Nashville, Tennessee, is one of thousands who've lost their housing due to the pandemic. Experts say millions more could be at risk without federal action. (Annie Pancak | Law360)
On March 27, the U.S. government responded to the coronavirus pandemic with historic legislation that included, among other things, a moratorium on evicting renters who live in federally backed housing.
The $2 trillion package known as the CARES Act also provided foreclosure protections, stimulus checks and a $600-per-week bump to unemployment benefits. Many state and local governments augmented the federal measures with their own, adding to a patchwork of policies that largely plugged the eviction pipeline in March and April. But most of those moratoria have since lapsed, despite a new surge in national COVID-19 infections. By the end of this week, courts in at least 39 states will be accepting eviction lawsuits — sometimes submitted and heard remotely due to the pandemic — against people behind on their rent. And in 12 days, the CARES Act moratorium that protects an estimated 1 in 3 rental units will expire. When it does, millions of Americans will become vulnerable to a legal process in which 90% of landlords typically have lawyers while only 10% of tenants do. Diane Yentel, president of the National Low Income Housing Coalition, told Law360 that without significant federal intervention, "there will be a wave of evictions and a spike in homelessness." "In fact, the wave has already begun — evictions are happening now, and they're happening in states where new coronavirus cases are surging," she said. "We're running out of time to prevent the wave from becoming a tsunami." In an attempt to protect tenants from homelessness and courts from overwhelming dockets, Yentel said at least 120 new rental assistance programs have launched nationwide since the pandemic began. But demand is fast outstripping financial supply, especially in markets like Houston, where 25% of renters spend more than half their income on rent. In June, that city's relief program ran through $15 million less than 90 minutes after opening and had to close. And in some places, efforts to stem the tide may be too little, too late.
A moratorium in Wisconsin expired on May 26. Since then, eviction case filings in Milwaukee have exploded from 61 in May to nearly 1,500 in June, which also marked a 17% increase compared with the historic average for the month, despite the ongoing CARES Act moratorium. According to data collected by a Princeton University research group called the Eviction Lab, two-thirds of Milwaukee's new cases have been filed in majority Black neighborhoods, substantiating concerns that a pandemic infecting Black people at three times the rate it infects white people will also have a disparate impact in court. "Black and Native American people are bearing the brunt of infections, and Black and Latino people are bearing the brunt of historic job losses," Yentel said. "Without immediate federal action, millions of people of color will be evicted from their homes in coming months." Even before COVID-19 struck, people of color were the most at risk of evictions: The American Civil Liberties Union reported in January that Black renters have evictions filed against them at nearly twice the rate of white renters. Those disparities are especially stark in Richmond, Virginia, which evicted more than 1 in 10 renters in 2016 — second-highest among large American cities. Palmer Heenan, an attorney at the Central Virginia Legal Aid Society, said his clients are typically Black women, often with children. On June 29, the same day that Virginia eviction courts reopened, the state opened a $50 million program to help renters avoid nonpayment evictions, but Heenan questioned whether the funds would be enough. "It's going to be difficult to get the money to the right people in time for July rent," Heenan said. "And I don't think the money will even come close to addressing the problem. Richmond just by itself is going to need tens of millions of dollars to prevent a catastrophe of evictions." An additional $100 billion in direct rental payments could come via the Emergency Housing Protections and Relief Act, which the U.S. House of Representatives passed in May. The bill also includes a 12-month national eviction moratorium, but the Senate has signaled no interest in considering it. One reason could be opposition from landlords and landlord interest groups, which have filed at least eight lawsuits over eviction bans in Los Angeles, San Francisco, New York state and Illinois, among other places. Christopher Fluegge, director of operations for the National Landlords Association, said that while rental assistance programs can be helpful, "a lot of landlords have been pretty frustrated with the moratoria." "There's quite a few landlords that built a small business and a significant portion of their portfolio is in arrears," he said. "You're talking about months and months — some people stopped paying in March."
A ride-share app and delivery driver in Nashville, Tennessee, Moore grew fearful to work when the pandemic started because she cares for her 74-year-old mother. "She's diabetic, she's had two surgeries, we're dealing with a skin graft now," Moore told Law360 in a video interview. "The slightest [infection] could take my mom out." Moore's subsequent application for unemployment benefits has yet to reap any payment from Tennessee's overwhelmed system, where 29,000 claims were pending late last month. By the time a local sheriff left an eviction notice on her door, Moore was three months behind on rent and Tennessee courts had reopened for in-person hearings. So on June 16, Moore went to court, pro se, to defend herself and her home. She wasn't alone. That morning, the 10 a.m. docket at Nashville's General Sessions Court listed more than 100 eviction and debt collection cases in which defendants, mostly women and disproportionately Black, had no listed counsel. Many of them wore homemade masks, trying their best to adhere to social distancing by heeding blue X's taped to courthouse benches. "The racial issues that preexisted the coronavirus will likely be exacerbated by the coronavirus," said Kerry Dietz, a housing attorney at the Legal Aid Society of Middle Tennessee and the Cumberlands. Moore had tried calling the Legal Aid Society for assistance, but her attempts came at a time of overwhelming demand that repeatedly crashed the organization's phone systems. She never got through. Legal Services Corp. President Ronald Flagg said it's no wonder some groups have had trouble fielding calls. In normal times, the country's 132 federally funded legal aid providers only have the resources to address an estimated 14% of low-income America's civil legal problems, including evictions. "And that was pre-COVID-19," Flagg said. "Existing levels of legal aid, even supplemented by the funding LSC got in the CARES Act, are not nearly enough." In court, the judge told Moore's landlord, Kenneth Crenshaw, he needed to formally declare the CARES Act excluded his property and then wait 10 days before a judgment could be entered. The requirement gave her time to look for a new place before the next hearing on July 2. As she left the courtroom, Moore ran into Dietz in the hallway and asked for some offhand legal advice. "I would say, if at all possible, get out before July 2," Dietz told her, noting Tennessee had no COVID-19 protections for nonpayment of rent. "He'll likely get a judgment for possession."
Kerry Dietz, a legal aid lawyer, advises Alicia Moore to move out before her next hearing to avoid an eviction judgment on her record. (Annie Pancak | Law360)
Last week, Moore told Law360 that she'd found a new apartment but couldn't move out in time. As a result, the judge formally evicted her on July 2, giving her 10 days to pack up her remaining possessions. The judge also ruled that Moore owes Crenshaw $2,200 in back rent — a sum she says she can't afford. "Now the COVID situation has started again, so I can't even make money still," Moore said. "I want to try to appeal it, but I don't know what I'm doing." Moore was especially unlucky to have been evicted July 2; the next day, Nashville's General Sessions Court shut down eviction dockets for the rest of the month due to Tennessee's recent surge of infections. Crenshaw, who also represented himself in the case, told Law360 he had no choice but to sue her. "It was costing me money, her staying and not paying me," he said.
The Debate Over More Moratoria
The National Landlords Association is advising landlords to try their best to work out payment plans or other arrangements, according to Fluegge.
"Eviction should always be the last resort," he said. "You don't want to put people on the streets." But stories like Moore's could become increasingly common in the COVID-19 era. According to surveys by the Census Bureau, roughly 1 in 4 American households missed June rent or mortgage payments, or said they had little confidence they'd be paying in July. Many of those households are in states with little to no protection left in place, according to a policy scorecard developed by the Eviction Lab and Emily Benfer, a Wake Forest University law professor and health justice expert. "Ultimately, without a nationwide moratorium and the federal financial support to address past-due rent, it is estimated that 20-28 million renters will face eviction and the extreme hardship and poor health outcomes it causes," Benfer warned in a Law360 interview last month. Some of the states with the largest renting populations, including New Jersey, California and Florida, still have state and local moratoria in place, but landlords' attorneys are concerned that the bans unfairly limit access to justice. Derek Reed, a partner at Ehrlich Petriello Gudin & Plaza APC who represents landlords in Newark, New Jersey, said locking landlords out of court allows troublesome tenants to go unchecked. "Literally the doors are closed to one group of litigants, which is pretty remarkable when you think about it," he said. "Right now we're having conversations with tenants who are being victimized by other residents and we're like, 'There's nothing we can do. We can't even get a court date.'" He also noted situations in which a tenant has died but the landlord still needs to go through the legal eviction process to repossess the unit. "In many cases those are affordable housing units with a waiting list," he said. "But right now because of the eviction moratorium, those units can't be turned over to new families." New Jersey's moratorium won't expire until Gov. Phil Murphy declares an end to the current state of emergency. But when that does happen, Khabirah Myers, coordinator of Newark's Office of Tenant Legal Services, said thousands of late-paying tenants could go hurtling over "an eviction cliff."
Her office has helped 950 tenants stay housed since opening in June 2019, one iteration of the nationwide "right to counsel" movement for low-income tenants. Similar efforts have launched in New York, Philadelphia and San Francisco in recent years, fueled by studies showing that providing lawyers on the front end is actually cheaper than paying for homelessness services on the back end. During the pandemic, Myers has been working to help tenants whose landlords illegally changed the locks despite New Jersey's moratorium. While she said unlawful evictions happen far more often than most people realize, she worried aloud about the lawful evictions that could be just around the corner. "One of the reasons why Gov. Murphy issued the moratorium is because of the health hazards that come with homelessness," she said. "Once that suspension is lifted, God only knows what things are going to look like." --Editing by Aaron Pelc.