Combating an Eviction Crisis in the Midst of a Global Pandemic
Over the past many months, politicians, the press, the legal community, and tenants’ advocates warned of a COVID induced housing crisis and an impending “tsunami” of evictions. As a tenants’ lawyer on the front lines of eviction defense, I can tell you: it’s here.
Voices for Civil Justice, a nonprofit organization in Washington, DC, wrote in their August 2020 newsletter “[w]e have all seen the beginnings of what promises to be a wave of pandemic-driven evictions, dutifully processed by court systems too often passively playing their part in the housed-to-homeless pipeline.” COVID-related evictions are not only for nonpayment of rent. Since June 2020, landlords have also filed summary ejectment actions for breach of lease. Some are alleged to have unauthorized occupants in the home after family members arrived to help provide childcare. Others have allegedly breached their lease based on incidents of domestic violence. The issues that give rise to these evictions have only been aggravated over the past year.
As of the date of this writing, tenants will have no protection against eviction after January 31, 2021—in the dead of winter at the height of the pandemic. Evicting people during this pandemic not only threatens the health and safety of those evicted, it puts everyone in the community at greater risk. A recent study found that COVID-19 incidents significantly increased in states where evictions were allowed to proceed. Nationally, the results translated to a total of 433,700 excess cases and 10,700 excess deaths associated with eviction moratoriums lifting.1 In North Carolina alone, 15,690 cases and 304 deaths were directly related to the lapse in eviction protection between June 20, 2020, and September 4, 2020.2 North Carolina was found to be the 10th worst in terms of coronavirus spread from eviction of the 27 states studied.3
The Housing Crisis
Frankly, North Carolina faced a housing crisis among low-income families long before the virus. In NC there are currently 135,575 affordable housing units available for a low-income population of approximately 3 million.4 Housing is considered affordable when a person pays no more than 30% of her annual income toward rent and utilities.5 Families paying more than 30% of their income for housing are considered cost burdened and may have difficulty affording necessities such as food, clothing, transportation, and medical care.6 In order to afford the NC average monthly rent for a two-bedroom apartment plus utilities—without paying more than 30% of income on housing—a household must earn $35,256 annually.7 The average household gross income for a Legal Aid of North Carolina client is less than half of that.
An analysis by the Eviction Lab at Princeton University listed eight North Carolina cities (Greensboro, Winston-Salem, Fayetteville, Charlotte, High Point, Durham, Wilmington, and Raleigh) among the 100 American cities with the highest eviction rates. The COVID-19 pandemic has intensified the housing crisis in our state, the exact numbers of which are still hard to predict. There have been estimates that over 700,000 North Carolinians could be at risk of eviction.8
In his 2016 critically acclaimed book, Evicted: Poverty and Profit in the American City, Professor Matthew Desmond wrote, “If incarceration had come to define the lives of men from impoverished Black neighborhoods, eviction was shaping the lives of women. Poor Black men were locked up. Poor Black women were locked out.”9 In July 2020 the Center for Public Integrity released a report that nearly two-thirds of eviction cases nationwide were filed against tenants living in communities of color. On July 22, 2020, the US Census Bureau reported that 56% of renters afraid they could not pay their next month’s rent were Black or Latinx. Eviction cases are filed against Black women at almost twice the rate of all white renters.10
Not only do people of color make up a disproportionate number of tenants in eviction court; Black and Latinx people disproportionately suffer economic inequality, discrimination in healthcare, increased rates of food insecurity, disparity in the child welfare system, and are overwhelmingly over-policed and arrested. Additionally, the CDC reports higher COVID-19 infection and death rates among Black Americans.
Then Chief Justice Cheri Beasley spoke publicly on June 2, 2020, to address racial inequity in America and, specifically, in the court system. She said, “[i]t is essential to understand the root cause of the pain that has plagued African-Americans and the complexities of race relations in America…[a]nd while we rely on our political leaders to institute those necessary changes, we must also acknowledge the distinct role that our courts play.”
Policies in renting, lease enforcement, and eviction filing and judgements that disparately impact people of color all contribute to housing instability which, in turn, can have devastating and long-lasting effects on individuals, families, and their communities.
How Evictions Impact Tenants
Evictions have a lingering effect. Families and individuals who are evicted have increased physical and mental health issues, children experience educational disruption, parents lose jobs, and families become homeless.11 In North Carolina, landlords regularly search databases for tenants’ previous evictions, even when those evictions were dismissed in court. Oftentimes the filing itself will compromise a tenant’s credit score or rental history. With an already inadequate supply of affordable housing, families are forced into overcrowded shelters, poorly maintained homes, or vulnerable and often exploitative situations.
For low-income families generally, it is not hard to imagine the consequences of the COVID-19 pandemic: loss of hourly wage work, cost-prohibitive childcare, meeting the needs of school age children whose schools have closed, and lack of transportation, to name a few. In 2018, the Federal Reserve found that 40% of Americans would not be able to afford a $400 emergency. Many families live paycheck to paycheck with no health care benefits and struggle to make ends meet. They have no savings to rely on to fix a car in need of repairs, let alone financially survive during a global economic crisis due to an unprecedented and highly contagious virus. These circumstances coupled with an eviction paint tenants with a scarlet “E” and exact a heavy toll on the tenant, her family, and the community.
On September 5, 2020, the American Bar Association wrote a letter to Congress requesting support for emergency rental assistance to end the COVID-19 eviction crisis. In it, they described the devastating impact the pandemic has had on both tenants and landlords. They wrote, “[t]his assistance is desperately needed…[f]ailure to act will lead to a sharp spike in unemployment and homelessness, as well as extreme demands on community health and housing services during a time of year when such resources are in highest demand.”
Legal Protections during COVID-19
From March 27, 2020, through July 25, 2020, there was a federal eviction moratorium included in the CARES Act that prevented landlords from evicting tenants for nonpayment of rent from federally subsidized homes, including homes with federally subsidized mortgages. On May 30, 2020, Governor Cooper initiated an eviction moratorium preventing landlords from evicting tenants for nonpayment of rent. The governor’s moratorium lasted for three weeks and required landlords to give tenants a minimum of six months to pay back June rent.
On September 4, 2020, the federal government initiated a sweeping national moratorium—the Center for Disease Control order (“CDC order”) published in the federal register. It prevents all evictions for nonpayment of rent through January 31, 2021. The CDC order applies to all residential tenancies; however, it only helps tenants who know how to invoke its protections. It requires that tenants sign a declaration under penalty of perjury and deliver the declaration to their landlords. In the declaration the tenant swears, among other things, that he or she makes under a certain income, has suffered substantial loss of income, and has applied for governmental rental assistance.
The CDC order sparked controversy and widespread confusion among landlords, tenants, lawyers, and judges. On September 16, 2020, the New York Times published an article titled, “How Does the Federal Eviction Moratorium Work? It Depends Where You Live.” The article addressed the vastly different ways that judges across the country responded to the order—from ignoring it all-together to dismissing cases on the spot. On October 28, 2020, Governor Cooper issued Executive Order No. 171, “Assisting North Carolinians at Risk of Eviction,” which attempted to clarify the CDC Order’s application in North Carolina. However, there continues to be a lack of uniformity in how the order is applied and, in some cases, an outright refusal to comply.
Some landlords and landlord-advocates across the country challenged the constitutionality of the CDC order; however, a federal court in Georgia denied a preliminary injunction to stop its enforcement.
On October 15, 2020, North Carolina introduced the Housing Opportunities and Prevention of Evictions (“HOPE”) program. The HOPE program provided $117 million of rental assistance for tenants that made 80% or lower than the area median income and got behind on rent or utility payments. On November 11, 2020, less than one month later, the funds ran out and the program stopped accepting applications.
Although eviction moratoriums and rental assistance undoubtedly provide relief for struggling tenants, they ultimately delay the inevitable. The tsunami continues to grow and will hit harder without more comprehensive relief. Eviction moratoriums do not address the deeper issues that plague tenants facing housing instability.
Legal Aid of North Carolina Responds
Legal Aid of North Carolina has a robust eviction defense practice, with 20 offices covering all 100 counties. But the demand is overwhelming and both legal and financial resources are limited. While some funds have become available for rental assistance that will help both tenants and landlords, there is no guarantee of ongoing financial support for even the poorest tenants. Landlords have also been severely impacted by this pandemic and some are beginning to face foreclosure with months of unpaid rent accumulating. Even so, many landlords have shown compassion towards tenants falling behind on rent and have been willing to waive late fees and implement payment plans to help residents catch up.
In an effort to respond to the overwhelming demand, Legal Aid’s Statewide Volunteer Lawyer Program has organized and provided ongoing training to a cohort of pro bono lawyers who have volunteered to help prevent evictions and avoid homelessness. The project, called the Eviction Negotiation Project (ENP), partners volunteer attorneys with tenants facing eviction for nonpayment of rent. Volunteer attorneys represent the tenants to negotiate with landlords in order to maintain the tenancy and to compromise the rent owed.
The project is now placing appropriate cases with volunteers to help tenants avoid homelessness and ensure public health and safety. More attorneys are needed to meet the ongoing demand, and Legal Aid would welcome additional volunteers for this project as well as our other pro bono projects. (Attorneys interested in volunteering may send an email to firstname.lastname@example.org.)
Nationwide, tenants who are represented by a lawyer are twice as likely as pro se litigants to keep their homes. For example, in 2017 New York City implemented a law guaranteeing a court-appointed lawyer in housing cases. Since the law went into effect, 84% of tenants who had a lawyer avoided an eviction.
Investing in lawyers to advocate for tenants has multiple benefits: cities and counties save money paying less for homeless services, courtrooms run more efficiently, and tenants maintain housing stability which leads to economic stability and fewer incidents of crimes of poverty. There are even benefits for landlords. Tenant lawyers can help to mediate disputes before a summary ejectment case is filed, diverting cases from ever entering the courtroom. Landlords save money by not paying court costs and attorneys’ fees, avoiding the cost of tenant turnover, and increasing the likelihood of getting back-rents paid.
COVID-19 knocked out the shaky foundation supporting many tenants across North Carolina. Anita Johnson12 was one of these tenants. In the beginning of 2020, Ms. Johnson had a stable job working as a home health aide. She had never missed a rent payment or been late on rent. When her car broke down requiring $1,000 to repair, she started riding the city bus to work. In March she was let go from her job because, according to her employer, riding the city bus presented too strong a risk of COVID for her patients. She immediately applied for unemployment assistance. In June she received a determination denying her benefits. Currently, there is a 20,000-case backlog of unemployment benefits cases and almost half a million people unemployed in North Carolina.
Ms. Johnson’s landlord filed a summary ejectment action against her on August 7. Ms. Johnson continues to ride the bus every day diligently applying for jobs. She remains terrified of becoming homeless, and she fears that without stable shelter it will only make it more difficult for her to climb out of the hole. “[I]t is hard to argue that housing is not a fundamental human need. Decent, affordable housing should be a basic right for everybody in this country. The reason is simple: without stable shelter, everything else falls apart.”13
In a New York Times opinion article on August 29, 2020, Professor Desmond wrote, “[b]efore the COVID-19 pandemic, more than 800,000 people around the nation were threatened with eviction each month. Today, with unemployment levels unseen since the Great Depression and the expiration of federal benefits along with national and several state eviction moratoriums, millions of renters are at risk of losing their homes…”
Fortunately, Ms. Johnson was represented by Legal Aid in both her housing and unemployment cases. Legal Aid was able to successfully settle the housing case. She promptly appealed the unemployment denial and, though her hearing was not held until December 15, 2020, Legal Aid won her unemployment appeal hearing, securing thousands of dollars of retroactive unemployment. But Ms. Johnson is one of many tenants affected by the pandemic. Between January and December 2020, Legal Aid lawyers and volunteers have assisted thousands of tenants facing eviction under similar circumstances. Over the past few years, summary ejectment filings in North Carolina have sharply increased, almost doubling between 2018 and 2019. And that was before the pandemic.14
As a legal community we must come together to address this calamitous issue when housing instability threatens lives and evictions will help spread the virus. The tsunami is here, and I don’t know any other way we will weather the storm.
Holly Oner is a housing lawyer for Legal Aid of North Carolina in Greensboro. She joined Legal Aid in 2017 after practicing as a public defender for The Legal Aid Society in New York City.
1. Leifheit, Kathryn M. Linton, Sabriya L. Raifman, Julia Schwartz, Gabriel, Benfer, Emily, Zimmerman, Frederick J., and Pollack, Craig, Expiring Eviction Moratoriums and COVID-19 Incidence and Mortality (November 30, 2020). ssrn.com/abstract= 3739576.
4. bit.ly/Spring2021-12; Table 6, p. 22.
5. 42 U.S.C. § 1437a(a)(1)(A).
6. Affordable Housing, bit.ly/Spring2021-13.
7. That means someone working 40 hours a week for 52 weeks a year would need to earn $16.95 an hour—more than twice the current $7.25 per hour minimum wage in the state.
8. The Raleigh News & Observer, August 22, 2020, Thousands of NC Residents at Risk of Eviction after Rent Protections Expire Next Week.
9. Matthew Desmond, Evicted: Poverty and Profit in the American City, pp 98 (2016).
10. ACLU analysis released in January 2020 showing eviction filings against Black women at almost twice the rate of white renters in 17 out of 36 states between 2012 and 2016.
11. Desmond, pp 296-99 (2016).
12. Name has been changed to protect confidentiality.
13. Desmond at 300.