In a largely overlooked move late last week, the Trump administration—following a deluge of legal challenges from the real estate industry—weighed in on the pandemic-driven federal eviction moratorium for nonpayment of rent that expires at year's end, issuing new guidance that housing policy analysts said rolls back tenant protections, stacks the deck in favor of landlords, and exacerbates the spread of Covid-19.
"Why would a landlord want to start eviction proceedings in October for an eviction that can't happen until January? The answer: to pressure, scare, and intimidate renters into leaving sooner."
—Diane Yentel, National Low Income Housing Coalition
Because the new guidance (pdf) issued by the White House on October 9 allows landlords to challenge tenant declarations of eligibility for protection and to immediately begin proceedings for evictions scheduled in 2021, progressive critics say that it "undermines the intent of the order," which was to safeguard public health by making it easier for "struggling renters to remain stably housed" amid the coronavirus crisis.
When the Centers for Disease Control and Prevention (CDC) ordered in early September a temporary halt in evictions for the remainder of 2020 to prevent the spread of Covid-19, housing and health justice advocates applauded the immediate public health benefits of the intervention but criticized its absence of rental assistance funding for cash-strapped households.
As Common Dreams reported at the time, experts warned the absence of such funds would only postpone a tsunami of displacement, not prevent it.
The National Council of State Housing Agencies (NCSHA) estimated that as of September 14, approximately 10 to 14 million renter households—home to 23 to 34 million people—were behind on rent by a total of $12 to $17 billion, while a more recent NCSHA report (pdf) anticipates that there will be a nationwide rent shortfall of $25 to $34 billion by the time the federal eviction moratorium comes to an end.
Soon after the CDC issued its temporary eviction ban last month, legal challenges poured in from the real estate industry arguing that the moratorium should be declared unconstitutional, and reporting from VICE showed that some property owners were still "trying to kick tenants out" despite the order.
Emily Benfer, a law professor at Wake Forest University, told VICE that the mishmash of state and local laws related to tenants' requirements to appear in court and present evidence as well as inconsistent interpretations of the CDC moratorium, "especially those that limit the scope... or undermine its authority, will result in widespread confusion" regarding "rights and obligations."
Several housing and public health scholar-activists said that the new guidance issued "late Friday night when no one was looking" by the Trump administration—which was pushed for by the Koch-backed New Civil Liberties Alliance, according to Tuesday reporting from the Center for Media and Democracy—tilts the scales even further in favor of landlords.
In its answers to frequently asked questions, the White House reiterated that the CDC measure does not require landlords to inform tenants of their rights, a situation that critics say has led many renters to remain unaware of the necessity to submit eligibility documentation.
3) The order does not require notice to tenants of their rights. If CDC wanted the order to work, it would require landlords to give tenants notice of their rights under the #eviction moratorium. This is the most direct way of ensuring every eligible tenant can exercise rights.— Emily A. Benfer (@emilyabenfer) October 12, 2020
Furthermore, as the National Low Income Housing Coalition (NLIHC) explained Tuesday in a memo, the new guidance enables landlords to challenge tenant declarations of eligibility, which "shifts the burden of gathering paperwork and evidence to renters struggling to remain stably housed during the pandemic."
Moreover, the new guidance also permits landlords to begin eviction proceedings for nonpayment of rent at any time so long as the eviction itself does not occur before the CDC moratorium expires. The NLIHC explained that this "provides landlords new opportunity to intimidate tenants who are behind on their rent and pressure tenants to vacate their homes sooner."
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NLIHC president and CEO Diane Yentel tweeted in response to the guidance: "Why would a landlord want to start eviction proceedings in October for an eviction that can't happen until January? The answer: to pressure, scare, and intimidate renters into leaving sooner."
"Evictions—even just a single eviction filing—create a long-term mark on a renter's record that can make it much harder for them to rent in the future," Yentel said. "Some renters avoid that mark by leaving before the formal eviction proceedings happen."
Yentel added that "other renters, especially the most marginalized and the most vulnerable people—immigrants, seniors, people with disabilities—fear the process and/or can't participate in court proceedings due to accessibility issues. This is especially true now, with some courts holding virtual eviction proceedings," she added. "Many low-income renters don't have access to needed technology to show up to court via Zoom, especially with libraries, schools, and rec centers closed due to Covid-19."
The new guidance "ignores public health evidence and undermines its purpose—to prevent Covid-19," tweeted Benfer in response to the Trump administration's recently published clarification.
"Tenants are all too aware that filing damages credit and future housing opportunities," Benfer said. "In response to the filing, to avoid the hamful effects, many will double up and seek shelter in overcrowded environments further increasing Covid-19 infection."
Benfer noted that "the order encourages tenants to seek legal aid," but said that "it's not possible for legal aid to represent, let alone advise and educate, every tenant facing eviction." According to Benfer, "the 90% of tenants without a lawyer will not likely be able to exercise their rights under this order."
In an amici curiae brief published Monday, Benfer and other legal scholars argued that "deleterious health impacts and the spread of Covid-19 are tied to the act of eviction itself and are likely quite preventable if eviction is halted under the CDC moratorium."
To prevent evictions, which contribute to the spread of coronavirus, Benfer and Yentel were unequivocal in their call for rental assistance from the federal government.
Assuming that congressional gridlock continues for the foreseeable future, the Urban Institute pointed out Tuesday in an analysis that state governments could use Temporary Assistance for Needy Families funds to prevent the dislocation of people most vulnerable to eviction.
Landlords "have been put in a tough position," acknowledged fair housing lawyer Barbara Samuels. "But eviction solves nothing if renters can't pay."
Instead of fighting for the right to displace households in the midst of a pandemic and depression—increasing the risk of disease transmission and long-term economic devastation—Samuels said that "landlords need to direct all their considerable clout at federal and state governments that failed to provide meaningful rental assistance."
"Public health evidence is clear," said Benfer. "Eviction increases Covid-19 deaths and spread."