On the first of September, the Centers for Disease Control issued a moratorium on evictions to curb the spread of Covid-19. But the moratorium, which applies only to qualifying tenants through the end of the year, is riddled with loopholes and has been ineffectively enforced. Thousands of tenants have been evicted despite the ban.
Edward, who lost his job as a contractor for a financial company based in Spain in February, is one of those thousands. He should have been covered by the CDC’s eviction ban. But he is currently homeless, living in a hotel and hoping the eviction on his record doesn’t keep him from finding somewhere else to live.
Edward, who wished to use only his first name, had lived in his Texas townhouse for about a year and a half before the pandemic hit. The rent was a bit steep—about $2,000 a month—but he wanted a yard for his aging dog, and his job paid generously. Then when Spain was hit hard by Covid, his employer started laying people off. His last paycheck was February 21.
Edward suffers from diabetes and feared that another job that might expose him to the coronavirus. “I don’t get afraid of much, but the way the virus broke out, I was totally afraid,” he said. He enrolled in unemployment, which helped, but not enough. His elderly father lives nearby, but he survives on a fixed income. “I couldn’t ask him for $2,000 a month,” he said. “That’s crazy.”
Edward tried to pay rent when he could, $1,000 here, $500 there. But he wasn’t able to pay in full. In late June his landlord moved to evict him. A remote court hearing was scheduled for September 9, but Edward got the date mixed up and didn’t appear, and the judge ruled in his landlord’s favor. It was then that he reached out to Legal Aid of NorthWest Texas, which told him that that he likely qualified for protection under the CDC ban.
Seeking to prevent eviction, Edward filled out the CDC’s declaration form, testifying that he met all of the requirements: he was making less than $99,000 a year, couldn’t afford his rent because of lost work, had made his “best efforts” to make partial payments and seek rental assistance, and would likely become homeless if evicted. The judge agreed to rehear his case. But at the hearing, his landlord challenged him over whether he had tried hard enough to seek rental assistance. Edward says he looked for help early on, but that he was told that the funding for various assistance programs had dried up, and he didn’t have any documentation of his search. A veteran of the army, he later contacted a few agencies, including Veterans Affairs, and kept documentation.
That wasn’t enough. The judge ruled again in favor of his landlord. He was evicted—for the first time ever in his life—and left his townhouse by the end of October. He still owes $14,000 in back rent. He’s planning to sell his Jeep to try to at least pay some of it back, but he doesn’t have it all. “You can’t squeeze money out of a turnip if you don’t have any money to give them,” he said.
The CDC eviction ban was explicitly implemented because, the agency said, “the evictions of tenants could be detrimental to public health control measures to slow the spread of SARS-Cov-2, the virus that causes COVID-19.” But housing advocates and attorneys across the country say that the ban’s lack of clarity and enforcement means that judges are still allowing evictions to move forward in many places. The CDC has only exacerbated the problem since issuing that initial declaration.
In October, the agency issued an FAQ saying that landlords can take every action in the eviction process up to actually removing someone from a home. That means many tenants will be threatened with an eviction and simply choose to move, rather than risk the ordeal or having an eviction on their record. And once the moratorium lifts on December 31, a flood of cases will be teed up such that people will face immediate removal. The FAQ “made an already challenged order worse,” said Diane Yentel, president of the National Low-Income Housing Coalition.
The FAQ also explicitly allowed landlords to challenge tenants on the veracity of their declarations. Some courts are going as far as holding evidentiary hearings over them. That’s not how the declarative statement that tenants sign should work, says Yentel. “The whole point of having a declarative statement [is that] when it’s difficult to prove something, you sign under the threat of perjury that it’s true,” she explains. That should spare tenants from having to gather evidence that they qualify, evidence that could be difficult or impossible to piece together. Renters also face perjury charges if they are found not to qualify after signing a declaration. That’s having “a chilling effect,” said Emily Benfer, a visiting professor of law at Wake Forest University. “The majority of tenants, who already understand that the eviction system is tilted toward the landlord’s favor, will not expect it to uphold their rights. So why would they gamble with their liberty?”
Then, there’s the fact that the FAQ made it clear that landlords have no obligation to tell tenants about the eviction ban. If renters don’t know about the CDC ban, they stand to be kicked out of their homes, even if they might qualify. And at the same time, the FAQ clarifies that landlords can only evict tenants for failing to pay rent. They’re free to evict them on any other grounds—and landlords are finding their way around the CDC ban by claiming to evict tenants for lease violations or refusing to renew their leases.
The ban is keeping some people in their homes who would otherwise be evicted. But far too many tenants are falling through the cracks. Corporate landlords have filed nearly 10,000 evictions in just five states since the ban was in place. This all raises the question: “Is this administration at all serious about having renters protected under the order, or was this just a show?” Yentel asks.
The ban’s lack of detail means implementation is inconsistent across different states and jurisdictions. In Texas, courts are postponing eviction cases until December 31st any time a tenant signs the declaration form. But landlords can revive a case by challenging the declaration, and many are, particularly pushing back on whether tenants made their “best faith efforts” to pay partial rent or seek assistance. These provisions are “very subjective,” noted Huma Yasin, an attorney at Legal Aid of NorthWest Texas. What if someone doesn’t have internet access and doesn’t have a car—what is a best faith effort to reach out to rental assistance agencies in that case? What does it mean to try to make partial rent payments if someone has no income coming in at all?
A number of Yasin’s clients have said that they tried to make partial payments and their landlords refused, saying they only wanted the full balance. Other landlords refuse to accept rental assistance because it requires them to complete paperwork. It’s “one of the loopholes” in the ban, Yasin said. “It requires your best efforts to do these things, but it doesn’t compel the landlord to accept these things.”
Whether judges are sympathetic to landlords’ arguments varies significantly. “It really depends on what judge you’re in front of, what day of the week it is, and if they had coffee that morning,” Yasin noted. Some aren’t requiring tenants to show any proof for the declarations. Others are still skeptical even after an evidentiary hearing.
In North Carolina, judges are similarly all over the place. “It’s like the wild west,” said Isaac Sturgill, an attorney at Legal Aid of North Carolina. Some judges refuse to allow an eviction against a tenant who has signed a declaration. But others have only done so for federally subsidized housing, confusing the CDC ban with the eviction ban included in the CARES Act Congress passed in March that has since expired. Sturgill says that at least one magistrate has shown “naked contempt” for the ban, saying “it’s not worth the paper it’s printed on.”
In the majority of cases Sturgill has been involved with, landlords or their attorneys are cross-examining tenants to question whether they qualify. In some cases, where the landlord hasn’t raised questions, he’s seen the magistrate, who is supposed to remain neutral, question tenants.
North Carolina governor Roy Cooper tried to address some of the shortcomings of the CDC ban, issuing an executive order in an attempt to clarify who is protected that also required landlords to tell tenants about the CDC ban. But the state’s Administrative Office of the Courts had already sent out a notice a few days after the CDC ban went into effect telling the court’s clerks that the moratorium doesn’t stop them from accepting eviction filings and that they should still issue writs of possession that allow evictions to be carried out. Then on October 30, the North Carolina Sheriffs’ Association sent guidance to its members saying, “The CDC Order does not change a sheriff’s duty to execute a writ for possession of real property,” or in other words, enforce an eviction, adding, “the sheriff does not have the authority to determine the legal correctness of the basis for eviction.” That runs contrary to the executive order, Sturgill says. He says he’s seen evictions carried out against tenants who should qualify for protection.
A similar landscape faces tenants in Kansas City, Mo., and some landlords are going to some extremes to disprove their tenants’ declarations. Shanice Taylor, a fellow with housing advocacy group KC Tenants, is fielding calls from renters on a legal hotline she helps staff. She has heard from renters whose landlords have demanded grocery bill receipts and bank account statements and interrogated them about whether they own a television or recently had their nails done. One renter who had recently started a new job told her landlord she couldn’t get current on rent yet because she had just started earning money. Her landlord called her employer, McDonald’s, in an effort to find out how much and when she was getting paid.
Then there’s the fact that the CDC order only bans evictions of qualifying tenants based on the nonpayment of rent. If the intent of the order was to keep people housed to prevent the spread of Covid, that “is completely nonsensical,” said Tara Raghuveer, founding director of KC Tenants. “Any eviction is going to displace someone from their home regardless of whether or not it’s because of the rent.”
It’s also a loophole that landlords are explicitly using to get around the ban. In a webinar hosted by the Kansas City Regional Association of REALTORS and Heartland MLS on October 7, Megan Booth, director of federal housing at the National Association of Realtors, assured the landlords in the audience, “You can evict for nonpayment of rent,” pointing out that the “most useful” way stipulated in the CDC order is any lease violation other than nonpayment.
Julie Anderson, managing partner at the law firm Anderson & Associates in Missouri and Kansas that represents landlords, spelled it out even more clearly. “I’m having significant discussions with client saying, ‘Can we terminate for something other than nonpayment of rent?’” she said. “If we can file for a lease violation it would be my preference at this time. I don’t want to have to get into the CDC order unless we have to.”
She offered advice about how to go about it, telling the audience to “pay close attention” to tenants’ behavior. “A lot of nonpaying tenants are also bad actors. They are also not good housekeepers. They have a lot of problems in their life,” she said. “If they’re violent, if there’s trash on the balcony, if they moved in their boyfriend, if they’ve got an unauthorized dog, they’re cooking PCP, they made a threat to their landlord, ‘Get off my this or that,’ that’s good grounds.” She noted that she’s “having quite a bit of success” pursuing these kinds of evictions.
Anderson also pointed out that if all else fails, a landlord can put a tenant whose lease is expiring on a month-to-month agreement and then refuse to renew it the following month. She said she’s discussing with clients “as to whether or not they should just put everybody into a month-to-month tenancy so if they stop paying we can terminate the month-to-month tenancy rather than dealing with the CDC order.”
Meanwhile, given that there’s no obligation for landlords to tell their tenants about the CDC protection, she urged the audience to continue “business as usual” with those who aren’t paying rent, until they sign a declaration form. Out of over 800 eviction cases that she has worked on since the ban went into effect, she noted that only about 100 tenants had signed declarations. Her clients have overseen “numerous lockouts every day.” She added, “I don’t want you to stop filing. We need to keep filing.”
And when tenants do sign forms, “I am challenging or encouraging my clients to consider challenging,” she said. When judges allow her to cross-examine tenants, she said, she asks, “Which agency did you apply to, when, where, how much did you get, how much did you ask for, did you try again, did you try the next month, how much money do you make, where do you bank?”
Raghuveer sees landlords putting Anderson’s advice into practice. Many are refusing to renew leases, a legal way to force people out who aren’t able to pay rent because of the pandemic.
That’s what happened to Alicia Wright, who lives in south Kansas City. A mother of four, she was excited to move into her current home: this was the first place she was renting on her own without government assistance. She’s been living there for about a year. But she’s a pre-K teacher who’s paid hourly, not a salary, and when schools shut down in March, she was furloughed. She managed financially for the first month, but in late April her bills started to catch up with her. Things got really dire by June. “There was no money,” she said. She got help paying June’s rent, and she made most of her July rent by selling some of her possessions to a pawnshop.
Still, she hoped she could hang on, because she was scheduled to go back to work on July 30 to oversee remote instruction for the children of essential workers—and the hours would be longer and the wage slightly higher, allowing her some breathing room to catch up on what she owed. Then on July 8th she was diagnosed with Covid after her fiancé was exposed at his job in a nursing home. She suffers from lupus, and she was knocked out for eight days with body aches, a fever, and difficulty breathing.
She had to have two negative tests before she could go back to work, which wasn’t until August 8. She still had other bills to catch up on—utilities, her car payment—so she started paying what she could in rent. But her landlord was demanding full restitution. Then toward the end of September the landlord asked if she wanted to renew her lease. She told them yes, but she was informed she couldn’t renew unless she paid everything she owed in full, which at that point was about $3,000, by October 1. She offered to pay in installments as she earned more, but they refused. “I’m like, there’s no way, because I’ve been behind for so many months,” she said. She had no intention of moving, but her landlord told her that if she wasn’t renewing her lease, that would considered to be issuing an intent to vacate.
She got in touch with legal advice through her employer, but the lawyer informed her that her situation—a landlord’s refusal to renew a lease—wasn’t covered by the CDC order, even though the reason she can’t pay rent is the pandemic.
Wright was told to hand in her keys on October 31. She refused. We spoke on November 3, and at that point she was still living in her home, but she knew it was a matter of time. “You’re walking on eggshells because you don’t know what’s going to happen day to day,” she said.
These tactics are common in North Carolina, too. Leases in the state automatically convert into a month-to-month agreement after the first year is up. Now, landlords are simply refusing to continue month-to-month leases. “We know the real reason they’re evicting them is because they’re behind on the rent, but they won’t even mention the rent in the legal papers,” Sturgill said. He’s even seen landlords who file nonpayment evictions and lose because of the CDC ban turn around and file again after refusing to renew a lease.
Mark Melton, a partner at Holland & Knight LLP who helped set up pro bono legal advice for people facing eviction at the Dallas Evictions 2020 campaign, sees this happening “all the time,” he said. Some landlords claim tenants are destroying the property, but when he goes out to survey it, it’s clear that the property as already long in significant disrepair.
Many tenants are simply unaware that they could be protected by the CDC ban. It depends, in many instances, on whether they have Internet access or if they’re in some other way connected to resources that could inform them of their rights. “Many of the most marginalized, and in many ways most vulnerable, people don’t have information about the moratorium,” Yentel said.
Every Saturday, KC Tenants has been disseminating handouts about the CDC protections at apartment complexes where landlords have initiated a number of evictions, as well as laundromats, grocery stores, community centers, and bus stops. They’ve knocked around 9,500 doors in the span of six weeks. “A lot of them don’t even know that [the CDC ban] exists,” Shanice Taylor said. And, she noted, “We can’t catch everybody, even though we’re trying. There are some people unfortunately who are slipping through the cracks.” The organization is going as far as to pull the addresses of every single person who has an upcoming eviction hearing and going to their home to give them information. But often, “by the time we get to those doors, the mail has piled up, there are letters taped to the door,” Raghuveer said. The tenant has already moved on.
Melton says he’s won every single case in favor of renters he’s represented. But most tenants show up to eviction hearings without a lawyer at their side; in civil cases, defendants—who, in eviction proceedings, are the tenants—only have counsel about a quarter of the time. Sturgill has been able to use the CDC moratorium to keep people in their homes, but he noted that his organization represents only about 5 percent of tenants in the state. “A large number of low-income people who can’t afford representation and can’t get a lawyer are being evicted in violation of the CDC order because they don’t know how to navigate the court system and because the state won’t do anything to implement it,” he said.
Yasin’s organization has created a spreadsheet of all rental assistance agencies, and she prints it out and makes sure her clients calls them all and documents the calls. She has a whole list of documents she asks her clients to bring to court. “I’m not going to leave it to chance,” she said. But she is also aware of how many people she isn’t able to reach when she watches the other cases in eviction court. “It’s painful,” she said.
Sometimes tenants reach lawyers too late. Melton recently got a call from a woman in her 60s who told him a constable was at her home of 20 years moving all of her belongings onto the front yard. She had been laid off while her state’s stay-at-home order was in effect and she couldn’t find another job, so she couldn’t afford her rent. The landlord claimed she was being evicted because she was a hoarder. By the time Melton got there, she was in tears in her yard, telling him she didn’t have the will to keep living. He was able to find her a spot in a shelter and some social services. But he wasn’t able to undo the eviction.
Evictions, then, are still proceeding. “All over the place, everyday,” Yasin said. The day we spoke, there were 26 eviction cases on the docket in the courthouse she had just come from. Sturgill’s organization has been getting “slammed” with calls from tenants facing eviction—some days, they’ve fielded around 1,000. “We’re seeing the cases continue to swell,” he said. There were over 8,000 pending eviction cases as of November 1 statewide in North Carolina. In 16 cities across the country, eviction filings surged by more than 3,000 just before the CDC ban went into place, and while they dipped the week after, they rebounded by nearly 2,000 the following week.
In Jackson County, Mo., which covers much of Kansas City, landlords filed 442 evictions between September 1 and 25. Nearly half of those were rushed into the three days before the CDC moratorium went into effect—but they’ve still continued. Raghuveer knows of at least a half dozen that have actually been executed.
Even Melton’s winning streak is going to come to a screeching halt in January without further legislative action. The CDC order expires on December 31, and the cases he’s had postponed are all now set for early in the new year. A few governors, such as in Colorado, have reinstated or extended moratoriums, but many others have let them lapse. Even if President-elect Joe Biden were to sign an extension on day one, the weeks-long gap between the two would allow countless landlords to force tenants from their homes.
“It’s going to be an absolute avalanche,” Yasin said.
And that avalanche will overwhelm the country just as the weather gets even colder. Covid is likely to still be spreading rapidly as people are stuck indoors. Homeless shelters are already at capacity after trying to socially distance residents. Rental assistance programs have been depleted.
Meanwhile, a tsunami of back rent will come due without an extension or rental assistance. Moody’s Analytics estimates that 12.8 million people could owe as much as $70 billion in back rent by the end of the year.
“What’s in store in January is terrifying,” Benfer said. “The expiration of eviction moratoriums across the country will usher in the next housing crisis of unparalleled proportions.” And more housing displacement will inevitably lead to more Covid spread. A recent analysis that controlled for mask orders, stay-at-home orders, school closures, and testing rates found that lifting an eviction moratorium was associated with 1.5 times more Covid cases and 2.1 times more deaths four and a half months later. “The failure to act, the failure to prevent this crisis, the failure to intervene at this exact moment will set the entire country up for harm we will be hard-pressed to recover from,” Benfer said.