The State of Eviction in the COVID Era

sadness of homelessness, eviction or moving out

COVID-19 has exacerbated the eviction crisis in the United States. There are an estimated 30-40 million Americans at risk of eviction.[1] Renters face homelessness, property owners face foreclosures, and lenders face default. Evictions usually involve less than $600 in rental debt.[2] In general, communities of color feel the hardest impact of the eviction crisis. Absent a national solution to this issue, evictions are continuing business-as-usual, with a few major exceptions. Here’s what you need to know if you are representing either the landlord or the tenant in an eviction proceeding.

Moratoriums

Temporary moratoriums were enacted on eviction at the federal, state, and local levels. The Coronavirus Aid, Relief, and Economic Security (CARES) Act in particular provided for a temporary halt in evictions on properties that were protected by federal mortgage insurance. This ban on evictions was one of several Congress took to provide Coronavirus relief, including the Paycheck Protection Program, the individual economic impact payments checks, and many others.^[3] The CARES Act eviction moratorium expired on June 24, 2020, and Congress is struggling to agree on another relief bill.^[4]

The Centers for Disease Control (CDC) has since put forth a ban on evictions that applies to all rental properties in the United States.[SC1] This moratorium applies to evictions only for nonpayment of rent and not for other causes such as other breaches of a lease. Tenants seeking to invoke the CDC order to defend against an eviction must fill out a declaration and deliver it to their landlords.[SC2] The CDC ban extends until December 31, but is more legally tenuous than was the CARES Act moratorium.

Despite the altruistic nature behind the CDC ban, its legal authority was attacked almost immediately by landlords.^[5] The main complaint is its constitutionality. Whereas the CARES Act ban came through the legislature, the CDC is an executive agency with limited rulemaking ability. The CDC is authorized to take measures to stop the spread of contagious diseases, and while an eviction ban is based on research about the high transmission rate in homeless shelters – one model projects one death per 60 evictions^[6] – some argue that it is still too broad to be enforceable.

In practice, the CDC order has been hit-or-miss. In the first place, few renters know about the ban and of those who do, they may not know the procedure required to successfully invoke the order.^[7] Evictees also tend not to be represented by counsel, sometimes not even appearing at their hearings, so it seems unlikely to expect the average evictee to know the ins and outs of this temporary measure.

Further, a Texas court advised landlords that they may seek an eviction and challenge the validity of the declaration. For instance, tenants have to meet several criteria to qualify, so the courts have made it clear that landlords may challenge whether the moratorium even applies to their tenant. The criteria include:

Expect to have income less than $99,000 in 2020, or have received a stimulus check, or not have been required to report income to the IRS in 2019;
Be unable to pay full rent due to an income loss or “extraordinary” medical bills
Have used best efforts to obtain governmental rent assistance,
Be likely to become homeless or forced to “live in close quarters” if evicted, and
Promise to “make timely partial payments that are as close to the full payment as the individual’s circumstances may permit.”

If the tenant fails to meet any of these criteria, they do not qualify for the moratorium.

The other catch with the ban is that there’s nothing stopping landlords from starting proceedings before the end of the period, as long as the actual eviction does not take place until after December 31, 2020. The CDC had to concede this in its FAQs after a wave of criticism:

As indicated in the Order, courts should take into account the Order’s instruction not to evict a covered person from rental properties where the Order applies. The Order is not intended to terminate or suspend the operations of any state or local court. Nor is it intended to prevent landlords from starting eviction proceedings, provided that the actual eviction of a covered person for non-payment of rent does NOT take place during the period of the Order.^[8]

For better or worse, after the expiration of this moratorium, absent any state or local orders, eviction procedure will be back to business as usual. Tenants still owe all their back-rent, and evictions can begin again on January 1, 2021.

Rent Relief Programs

Some landlords may have been eager to fill their properties with paying tenants, but perhaps many were concerned that there wouldn’t be a long line of well-off applicants waiting to fill their properties. For landlords not itching to evict, but who are still feeling the financial burden of non-payment, various rent relief programs may have been a viable solution. The CARES Act allocated funds to states to provide rental assistance. Each state has handled it differently, but generally, these programs were administered at the county or city level and required an application. For many, the deadlines were earlier in the summer, but some had to extend and adapt as they went to make sure they were actually addressing the needs of the community.

In Wisconsin, for example, where the local eviction ban expired in June, the counties administered the Wisconsin Rental Assistance Program (WRAP) using $6.7 million in CARES Act funding.^[9] Unsurprisingly, the program became backlogged right away and struggled to keep up with capacity – by June 30, there were already 24,000 names on the list. The application was quite arduous, not only requiring coordination with the landlord, but also asking for proof of the whole household’s income, proof of residence, like gas or electric bills, and lease information.^[10] The program was scheduled to end by November 18, 2020, but it had already run out of funds by that time.^[11]

How to Go Forward

If you are an eviction attorney, you most likely represent landlords. After all, most tenants facing eviction are being evicted for non-payment so it’s unlikely they can afford a lawyer. However, even as a landlord’s attorney, it’s important you advise your clients of the potentially adverse consequences of evicting in the middle of a pandemic.

Beyond the complex web of federal and state regulations protecting – or attempting to protect – tenants from evictions, it may not even be in a landlord’s best interest to evict right now.

Evictions are expensive – and can take a long time, exacerbating a landlord’s lost rent. Then there’s the cost of filing fees, serving notice, hauling personal items, cleaning the unit, and advertising it. And of course, lawyer’s fees.

Couple this with the fact that the rental market is not good right now. If 30-40 million Americans are facing eviction, where are they going to move? Either into a lower-cost rental, in with family or friends, or to a shelter. For many landlords, it is probably not an ideal situation to replace an evicted tenant with a new tenant who was recently evicted.

What are some options to advise landlords who may be calling you about evictions if you aren’t certain an eviction is the right path?

Repayment PlansHas the landlord considered “refinancing” the lease, or offering a repayment plan at reduced rent? For many evictees, rent is an “all-or-nothing” – they either have it, or they don’t. If landlords can afford to recoup a portion of the rent, at least for the short-term while their tenants are applying for unemployment or rent relief, or seeking new employment, they may find that it’s a more workable solution than jumping to eviction for a few months of back rent.
Pay Them OutOne other creative solution is to incentivize the tenants to move out, sometimes called “cash for keys.”^[12] This is often a cheaper alternative to eviction because it can help avoid the costs of the judicial process, the tenants may be amenable to a quick cash boost, and the tenants won’t have an eviction on their record.
Exchange ServicesMaybe your tenant could work off some of their rent. If they have any special skills, such as handiwork or design, you may consider asking them to perform repairs or decoration that would improve the value of your property to the tune of one month’s rent. This isn’t always feasible, especially with more corporate landlords, but in some cases, it could turn out to be a mutually beneficial situation.
Talk to Your TenantsLandlords come in all shapes and sizes, from the billion-dollar property management company to the guy who lives upstairs. Some landlords are a little too close for comfort, and some are LLC’s who take a monthly withdrawal from the checking account. Regardless of how well the landlord and tenant know each other, however, sometimes eviction is a knee-jerk reaction to avoid having a difficult conversation. In some cases, a simple conversation with the tenant to understand their circumstances may help avoid the whole ordeal. Perhaps the tenant is expecting to start earning income soon or has applied for a loan to cover the cost of back rent.

If your client does elect to proceed with eviction, ensure they understand the costs involved and are certain the cost of evicting their tenant does not outweigh the potential benefits of letting them stay – remember, the average eviction is for less than $600 in back rent.

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