Landlords are getting really good at finding loopholes in the eviction moratorium

Grossly unfair distribution of rental assistance and other updates of the COVID-19 catastrophe

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During the pandemic, this once-per-month newsletter may be split into two issues: one monitoring developments related to the COVID-19 pandemic, and one for other news on housing justice.

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Pandemic job losses are truly catastrophic. In the worst week of the Great Recession, 665,000 people applied for unemployment benefits. Since the start of the pandemic nearly a year ago, we have not had a single week with fewer than 770,000 people applying for unemployment benefits. In a single week in April, 5.3 million people applied for unemployment benefits, and in the 4 weeks spanning mid-March to mid-April, more people lost their jobs than the total number of jobs that had been created in the previous decade.

Most recent (January 20-February 1, 2021) Census Bureau data reveal an ongoing catastrophe:

  • 47% of Americans reported a loss of employment income since the start of the pandemic (of themselves or a household member)

  • 25% of Americans reported they expect themselves or a family member to lose employment income in the next 4 weeks

  • 33% of American households — and 38% of households with children — reported cutting back on food: either not having enough to eat or buying food they don’t like to save money

  • 10% of households with a mortgage reported being behind on mortgage payments 

  • 18% of households that pay rent for their housing reported being behind on rent

  • Shockingly, just 66% of households with mortgages reported “high confidence” they could make their next monthly payment

  • Astonishingly, only 46% of renters reported “high confidence” they could make their next rent payment

Gaping holes in the eviction moratorium

Photo: “Evicted” by Joris Louwes

The federal eviction moratorium forbids landlords from removing someone from their home due to nonpayment of rent. Landlords are getting really good at trumping up reasons to remove people from their homes even if the actual reason they want them out is over nonpayment of rent. Below, we look at a selection of stories from local and national media about loopholes in the eviction moratorium:

  • “Material breach of contract” loophole: looking for little things that are technically against rental lease but a bogus reason to evict someone — from having two cats instead of one, to not trimming hedges, to (allegedly) not picking up dog poop.

  • Nonrenewals: The eviction moratorium does not force landlords to renew a lease. Because most leases in the US are for one year — and the moratorium has been in place almost a year now — this is a massive loophole. If your lease expires on March 1 in most parts of the country, your landlord can simply refuse to renew it, thus legally circumventing the moratorium and throwing you on the street.

    • The National Housing Law Project argues that the language of the moratorium actually does forbid nonrenewals, yet nonrenewals are occurring throughout the country.

  • Some landlords simply ignore the order and many judges are allowing them to do so.

  • Some judges go a step further and simply refuse to allow anyone to benefit from the moratorium, throwing people out of their homes as though there were no pandemic.

  • Countless tenants aren’t aware of the moratorium or how to access it.

  • Many tenants are not even being told of the date, time, or location of their eviction hearing (or how to access it if virtual) or are being evicted because they didn’t know how to complete the right moratorium paperwork.

Eviction Lab tracks evictions in 5 states and 27 cities. With over 3,500 weekly filings in these sites alone, by the end of the week, landlords are on pace to surpass 250,000 eviction filings since the start of the pandemic.

Tens of thousands of households have been evicted during the pandemic. Clearly, the moratorium is not working.

A new research paper shows that eviction moratoria save lives when properly enforced. This was the stated purpose of the federal eviction moratorium: To curb the spread of COVID-19 infections and save lives. When landlords and judges look for loopholes in the moratorium, they are throwing people out into homelessness and literally causing people to die:

We find that policies that limit evictions are found to reduce COVID-19 infections by 3.8% and reduce deaths by 11%. Moratoria on utility disconnections reduce COVID-19 infections by 4.4% and mortality rates by 7.4%. Had such policies been in place across all counties (i.e., adopted as federal policy) from early March 2020 through the end of November 2020, our estimated counterfactuals show that policies that limit evictions could have reduced COVID-19 infections by 14.2% and deaths by 40.7%. For moratoria on utility disconnections, COVID-19 infections rates could have been reduced by 8.7% and deaths by 14.8%.

Eviction and foreclosure armageddons approaching

We face separate cliffs for evictions and foreclosures, coincidentally with the same end-of-March deadline:

The eviction moratorium was extended to March 31 by President Biden, but as it is designed today, it will result in a wave of evictions as soon as it expires.

  • Researchers at the Urban Institute estimate that a typical renter owes $5,600 in unpaid rent and utilities. Because most fell behind on rent after losing their job, these bills for back rent and utilities are simply unpayable. Without cash assistance or their unpaid rent being forgiven, most delinquent renters will be evicted as soon as the moratorium ends. This would leave tens of millions of people homeless.

  • Those same researchers estimate that American renters are collectively behind on rent by $57 billion, more than double the $25 billion for rental assistance passed by the Trump administration at the end of December.

    • That $25 billion is allocated in a grossly unfair way. Wyoming, with some of the cheapest rents in the US, is allocated $2,936 per renter. New York, with some of the highest rents in the US, is allocated just $379 per renter.

  • President Biden has urged Congress to pass additional aid but nothing is yet final.

The expiration of the eviction moratorium would be a fiscal catastrophe for local governments. That’s because landlords do not pay for evictions; evictions are paid for by the public by funding emergency shelter and services to homeless children and their families, foster care for homeless children, among other costs. The Portland State Homelessness Research & Action Collaborative points out that as soon as the eviction moratorium is lifted, the state of Oregon and local governments will collectively be responsible for $1 billion to $3.3 billion in costs associated with the massive eviction wave that will immediately follow. (You can estimate costs for your own community with the Cost of Eviction Calculator used in the Portland State analysis.) 

Meanwhile, some homeowners have been able to apply for 360 days of mortgage forbearance. The end of March will mark 360 days since the beginning of the program. In other words, homeowners who lost their jobs and applied for forbearance early in the pandemic and remain out of work today will start facing foreclosure unless there is an extension.

  • Black Knight’s most recent data estimates 2.7 million homeowners in forbearance entering January; if trends continue, there will be 2.5 million homeowners in forbearance at the end of March, with 600,000 forbearance plans expiring.

  • Remember: For mortgages, only federally insured or owned mortgages are eligible for forbearance, leaving many homeowners unprotected in the middle of a pandemic and catastrophic recession.

Much more information on federal and state eviction moratoria in previous issues.

Gaping holes in the eviction moratorium

Just two months into 2021, heartbreaking stories in local and national media are everywhere; here are some recent examples. We’ve linked to other examples from earlier in the pandemic in previous issues.

The moratorium does not cover nonrenewals

The federal eviction moratorium does not force landlords to renew a lease. Nearly all apartment rental leases in the US are for one year. As we approach the end of the first year of the pandemic, close to 100% of all rental leases have already or are about to expire, essentially rendering the eviction moratorium moot.

Citylab:

Unable to work and relying on disability benefits, Nondorf says she had struggled to pay rent for her $700-per-month apartment since September. At the same time, she escalated complaints to the city about roaches, bats in the walls and broken appliances that she says the building’s new management failed to address. After her lease rolled over at the end of October, Nondorf and her fiancé, Gary LaBarge — who was living in an adjacent unit on a month-to-month lease, and who has stage 4 chronic obstructive pulmonary disease — received notices in November to vacate.

The couple applied for emergency rental assistance. They also filed the declaration forms required under the federal eviction moratorium issued by the Centers for Disease Control and Prevention in September. But attorneys for the landlord told Nondorf that the CDC order didn’t apply, since the landlords were simply declining to renew the couple’s leases. And while Nondorf and LaBarge were each eligible for up to $5,000 in rental assistance in Kansas, their landlord wouldn’t take the money.

“The CARES fund was there,” says Nondorf, who was served with an eviction order in mid-January. “We reached out to our landlord. ‘I know we owe rent. We’re not trying to screw you.’ They flat-out refused.” (Nondorf’s landlord, Rodney Steven III, confirmed the eviction but declined to answer other questions.)

Ignoring the moratorium

Vice on large, corporate landlords simply ignoring the moratorium (and judges allowing them to do so):

Between September 4, when the partial ban took effect, and February 5, corporate landlords managed to file more than 40,000 eviction cases across select counties in just six states — Arizona, Nevada, Texas, Florida, Georgia, and Tennessee — according to data collected by the Private Equity Stakeholder Project … Saniece Hunter has slept on a futon in her hair salon’s break room ever since she got the red-lettered final eviction notice from the Seminole County Sheriff’s Office in Florida late last month. Her landlord took her to court after she fell nearly $11,200 behind on her rent payments during the coronavirus pandemic, which temporarily closed the small business she now relies on for shelter ... Invitation Homes filed an eviction case against her in December, which Hunter was unable to fight.

“How can this even happen?” Hunter said. “How can they move forward in these evictions?”

Journalists in Oakland document hundreds of eviction notices in spite of a national, state, and local ban on evictions, with a single landlord sending out 150 notices. The Fresno Bee reports 200 open eviction cases in the San Joaquin Valley alone, with 1,600 throughout California in just a 6-month period. Maryland’s Public Justice Center reports 2,500 legal evictions in Maryland during the moratorium.

“Material breach of contract” loophole

Landlords are getting very good at finding technicalities to throw people out of their homes. For example:

Heinz says landlords are using something called "material breach of contract" to kick tenants out of their homes over seemingly small issues.

“Allows [sic] the landlords and their lawyers to say, oh wait, you haven't trimmed the hedge in two months, or you have two cats instead of one cat so now I am throwing you out because of a material breach of contract... and that language is a legal loophole that is not covered under the CDC’s moratorium,” he added.

Of course, judges could easily see through these ploys and refuse to allow the evictions to proceed. Judges are willfully blind to what is happening.

Use of this loophole is often transparently cynical. Frequently, landlords had no problem with the “material breach of contract” until the pandemic started:

Snow described one case in which an elderly woman in a duplex allowed her son to move in.

“The landlord knows. They talk about it at the mailbox,” Snow said. “Flashforward to April. Adult son lost his job. Now that he lost his job, they file a COVID hardship claim in October. Landlord comes back and says the adult son is an unauthorized subtenant. You have three days to either get him out or you both leave.”

A very sick, pregnant woman and her family lost all their possessions (including their clothes) and are now homeless over dog poop:

Finley said the couple filed a CDC declaration to halt the eviction but said property managers countered by claiming the protection didn’t apply because they were being evicted for not cleaning up after their dog and for having unauthorized occupants, not for failure to pay rent.

Their lease agreement stated that they could be penalized $200 for not cleaning up after the animal, but they never received a bill for such a fee. The eviction notice arrived, coincidentally, after they failed to make rent at the first of September.

The couple, their 2-year-old son and dog were locked out of their townhome and moved in with family. Allred, who said she is expecting a baby in March, said they were fighting to retrieve all their belongings, and she had just been released from the hospital due to a bad kidney infection.

“I have no clothes, I have no food,” Allred said, “all of my important paperwork is in there — my ultrasounds, everything.”

There simply are no consequences for landlords who attempt to find bad faith loopholes in the moratorium. Why wouldn’t they try and see if something works?

Judges ignoring the moratorium

From Atlanta Public Radio:

She said her family enjoyed living in Carroll County at first. Duren worked at the mall. Her husband was a mechanic. When the pandemic began, they both lost work.

She said the state never approved their unemployment.

“So we fell behind,” she said. “We had to find a new job. And it went downhill fast from there.”

After several months, Duren’s landlord filed for eviction.

That’s when her husband learned about the order from the CDC that bans landlords from evicting tenants who are behind on rent during the pandemic. Duren’s family filled out the CDC form claiming they qualified.

“We even went and got the paper notarized. That way, the judge knew that we did everything we were supposed to in a timely manner,” she said.

They showed up to the small brick courthouse in Carroll County feeling confident, she said.

But then they approached the judge. According to Duren, he didn’t even look at the CDC paper. He told them Carroll County doesn’t honor that...“The CDC, as far as I know, has no control over Georgia courts,” [the judge] said. ... Asked why most other magistrate courts in Georgia have come to a different conclusion, Johnson said he didn’t know.

As with landlords, there are no consequences for judges who refuse to honor the moratorium.

Some tenants don’t know; some can’t know

The Kentucky Equal Justice Center is suing the Louisville court system for failing to tell renters how to attend their eviction hearings.

Many tenants simply don’t understand what they have to do to be protected. This tenant attempted to bring the eviction moratorium up in court, only to be told that because he did not fill out the right form, he would not be protected:

It was January 27. Nicholson, 64, had logged on to Zoom for her eviction hearing, but she’d been given the wrong access number. Though she phoned the district court clerk’s office and got the right number, it was too late. The judge had ruled. She had seven days to leave her Louisville, Kentucky house...“I didn’t know a stinking thing about CDC forms” until being told about them after her hearing, Nicholson said.

The “CDC form” is the declaration form a tenant needs to present in court to be covered by the moratorium. If you don’t know about the form, you can’t be protected, no matter how desperate your situation.

On the one hand, the moratorium should be automatic; people should be protected and shouldn’t have to jump through hoops. Confusing requirements ensure that people who should be protected will fall through the cracks. But on the other hand, these heartless judges could easily allow the tenants to complete the form in court.

Grossly unfair distribution of rent assistance

The $25 billion in rental assistance passed in late December by the Trump Administration is being distributed in a nonsensical way: proportionate to a state’s population rather than proportionate to a state’s number of renter households. Many have pointed out this means that more rural, whiter states are getting a vastly higher proportion of aid despite the concentration of renters, renters behind on rent, and the economic recession in larger states.

New York and California have some of the most expensive rental housing in the entire country. According to calculations by Peter Hepburn, California will receive $443 per renter household and New York, $379. Meanwhile, New Hampshire will receive $1,300 per renter household and Wyoming, $2,936.

Wyoming is home to some of the least expensive rental housing in the entire country. Wyoming’s share of federal aid is enough to cover three months of rent for every renter in the entire state. New York’s share is only enough to cover one week.

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