What an Effective Eviction Moratorium Must Include

An eviction moratorium must hit all five phases of eviction, and more, to protect public health. Here's what to look for to make sure an eviction halt does its job.

A notice in red letters is taped to a wooden door. It reads "Notice: by order of the [blanked out] County Special Civil Part. Tenants of these premises have been evicted and the plaintiff placed in full possession thereof. NO TRESPASSING."
Photo by Flickr user rickonine. Creative Commons BY-NC.

To protect the public and slow the spread of the coronavirus, countless schools, businesses, and offices have been closed across the country. Several states have issued shelter-in-place orders and many more will likely follow. Many courts have stopped hearing non-emergency matters, including evictions. All of these urgent actions are being enacted in order to “flatten the curve.”

If we are lucky, these measures will reduce the rate and incidence of COVID-19 infections. But there is no way around the fact that our efforts to flatten the curve have already sharply increased the unemployment curve and are setting up a steep increase in evictions. Last week’s unemployment figures (which come out a week behind) already showed an astounding increase in claims, and next week looks exponentially worse. The longer businesses are shut down and shelter-in-place orders are in effect, the higher the total unemployment numbers will climb. Moody’s Analytics recently estimated up to 80 million U.S. jobs face some level of risk due to coronavirus, with 27 million at “high-risk.” Without income, millions will be unable to pay rent (or mortgages). As a result, millions of people are at risk of losing their homes during and in the aftermath of the pandemic.

In addition to bolstering workers with paid leave and stabilizing local economies, federal, state, and local governments must also protect Americans from the threat of eviction and homelessness. Every government branch with the power to do so must take steps immediately to protect the public health by: (1) adopting moratoriums to keep tenant households from being evicted throughout the duration of the crisis; (2) advancing social distancing goals by eliminating unnecessary interpersonal contacts for non-emergency inspections, meetings, moves, serving notices, lawsuits, hearings, physical evictions, and other such purposes; and (3) developing policies that enable tenants or mortgagees who fell behind in payments due to the pandemic to resolve their arrearages over time and remain in their homes once the moratoriums are lifted. 

Halting Evictions Flattens the Curve

Each stage of the eviction process has the potential to increase COVID-19 transmission. Tenants, landlords, juries, attorneys, judges, court personnel, process servers, and sheriffs’ departments are all at increased risk. And, of course, anyone infected during this process could then spread the novel coronavirus in other clusters. 

At the same time, any tenants who are evicted and lose their housing during the pandemic will have a reduced ability to practice social distancing—and most definitely cannot comply with shelter-in-place orders. For these families and individuals, contagion risk will increase. Their health will be further compromised as eviction almost always results in increased instability and homelessness, or a downward move to a disadvantaged neighborhood and/or substandard conditions. Many families and individuals who are evicted are forced to double up, reside in poor-quality housing, or become homeless, which have all been linked to poorer health outcomes

What Eviction Moratoriums Must Include

All states and local jurisdictions should take steps immediately to ensure that evictions processes are halted. While many states and local jurisdictions have taken steps to halt evictions, others have yet to do so. Those who have taken action have often taken steps that are incomplete or inconsistent, creating a risk of increasing barriers to justice. Here are the components that would be required to truly have the public health effects needed.

Cover All Phases and Facets

An effective eviction moratorium must cover the five key phases of an eviction.

Details may vary between states, between local jurisdictions within states, and even between courtrooms within a single jurisdiction, but generally eviction entails five key phases:

    • First, the landlord gives the tenant an eviction notice, directing the tenant to vacate the dwelling unit by a specified date.
    • Second, the landlord initiates a judicial eviction lawsuit (often called “unlawful detainer” or “forcible detainer”) against a tenant who has remained in the premises beyond the date specified in the eviction notice.  
    • Third, the court holds a hearing (or series of hearings) to receive evidence and legal arguments (from the landlord, the tenant, and other witnesses or relevant persons) that will be used to decide the case.
    • Fourth, the court issues a ruling. If the ruling is to evict the tenant, this will include a judgment directing the tenant to vacate the premises (and, often, to pay back rent or other damages and costs to the landlord), and will include (or authorize the court clerk to enter) an order directing the local sheriff to physically remove the tenant.
    • Fifth, and finally, the sheriff will execute the order to remove the tenant by conducting a physical eviction. 

Stopping any one phase will tend to prevent eviction cases that have not yet reached that phase from proceeding during the moratorium period. However, stopping only one phase of eviction does not affect cases that have already passed that phase, and does not prevent cases from being processed through the stages prior to the one that is halted. 

For example, a moratorium on court hearings would prevent any tenant whose case has not already been heard from being evicted (since without a hearing, the court cannot enter an order directing the sheriff to remove them, and without such an order the sheriff will not conduct a physical eviction). But such a moratorium would not prevent the physical eviction of tenants whose cases have already been heard. And it would not prevent landlords from issuing eviction notices, with which many tenants would likely comply to avoid being sued (and thus risking liability for court costs and attorney fees and likely acquiring eviction records that could harm their ability to secure housing elsewhere). A restriction on hearings would also not prevent landlords from filing new cases, potentially building up an avalanche of pending evictions for when the moratorium expires.

While state legislatures have power to implement moratoriums that reach all five steps, many have yet to act. Where state legislation is not forthcoming, addressing all five aspects of the eviction process may require multiple, overlapping acts by different officials and levels of government, as each may control different aspects of the eviction process. For instance, a state emergency management statute may authorize the governor to restrict the issuance of new eviction notices or the physical execution of eviction orders, while an order restricting new court filings or canceling eviction dockets may need to come from the state’s supreme court or other judicial official. Local legislative bodies may have similar powers in their jurisdictions, especially in home rule states, but may be constrained by state landlord-tenant and judicial procedure laws. 

Prohibit Late Fees

In addition to freezing evictions, government officials should prohibit the imposition of late fees and similar charges. These provisions are necessary to ensure that no tenant is involuntarily displaced from her home during the pandemic, that tenants do not become powerless to avoid eviction at the end of the moratorium through accumulated fees they could not avoid, or the waiver of legal rights and protections they could not exercise. Halting these fees also helps to keep the eviction curve flatter than it would otherwise be.

Cover Everyone

Some jurisdictions are limiting their eviction moratoriums to nonpayment cases caused by COVID-19 matters. In adopting eviction moratoriums, policymakers should avoid limiting coverage to certain types of cases or making exceptions for particular types of lease violations. Any such limitations and exceptions create ambiguity, inviting litigation, counteracting social distancing goals, and undermining the security and peace of mind that many renters need when being asked to stay home, often at significant financial cost.  

While jurisdictions may be tempted to include exceptions for truly violent or destructive criminal activity, criminal law enforcement or civil protection order proceedings promise a faster and more expedient means of removing such a perpetrator than eviction. Should political circumstances make the inclusion of such a provision necessary, advocates should work to ensure any exceptions are narrowly drawn and carefully detailed to eliminate ambiguity and minimize the need for interpretation or opportunity for creative application.

Adjust Landlord Access to Units

During the crisis, critical conditions—like mold, leaks, lead hazards, or essential service terminations—that could threaten the health of occupants must be addressed in a timely manner and units be maintained by owners in a safe and habitable state. However, states should set reasonable limits on landlord access to rental units during this time so that public health objectives are not undermined. Limits should include halting routine rental inspections or other non-essential unit entry and allowing tenants to refuse access when they are or believe they may be ill or are in a group that is at high risk of complications from COVID-19.

Duration

Eviction moratoriums should remain in effect at least throughout the duration of the public health crisis, and ideally long enough thereafter to allow tenants whose incomes were disrupted during the pandemic to apply for and obtain any relief benefits that may be forthcoming or otherwise work out payment plans. States should not lift or cancel moratoriums without clear and well-publicized notice, at least 14 days in advance.   

Looking Forward

As vital as it is to ensure that the eviction process and related systems do not contribute to spreading COVID-19, it is also essential that leaders plan now for what happens after the health crisis is over. As with the medical system, there were known stress fractures in the system that are now being broken wide open.

Even before the COVID-19 pandemic, the eviction system was already stressed in many areas across the United States. Unless we plan for how the eviction system will evolve after the pandemic, courts everywhere will be clogged to a stopping point and our collective goal of securing access to justice will be delayed.

COVID-19 has put a spotlight on the United States’ affordable housing crisis and its deep socioeconomic divide. As we look ahead to the pandemic aftermath, it is paramount that any strategies to repair the country include improving health equity and ensuring safe and decent housing for every one of us.

Emily Benfer
Emily A. Benfer is visiting associate clinical professor of law and the director of the Health Justice Advocacy Clinic at Columbia Law School. She is co-principal of Health Justice Innovations, LLC.
Eric Dunn
Eric Dunn is the litigation director at the National Housing Law Project, and co-counsel for the plaintiffs in CFHC, Arroyo v. Corelogic Rental Property Solutions, LLC. Dunn previously worked for the Virginia Poverty Law Center, and in that position was also co-counsel for the plaintiffs in Simmons v. T.M. Associates Management, Inc. A housing rights advocate for nineteen years in Detroit, Michigan, and Seattle, Washington, Dunn is now based in Richmond, Virginia.
Norrinda Brown Hayat
Norrinda Brown Hayat is an associate clinical professor at Rutgers Law School in Newark and the director of the Civil Justice Clinic.
Rachel Blake
Rachel Blake is the associate director at Regional Housing Legal Services. She devotes most of her time to systemic advocacy efforts, using her six years of experience representing nonprofit affordable housing developers to inform her work.

3 COMMENTS

  1. Could eviction courts be used as a vehicle to validate COVID 19 as a cause for non payment (direct case or loss of employment due to…) and assign a rental voucher to the otherwise eviction eligible resident? This could preserve the housing service to the resident while protecting the rental property from debilitating economic vacancy.

  2. This story is so one sided. A landlord is still expected to pay heat, hot water, sewer, water bills, insurance, taxes, maintenance and a mortgage. I will work with my tenants and I wouldn’t evict anyone under these circumstances but the reality is I have bills to pay that keep everything running. I wonder how the town is going to feel if I don’t pay my real estate taxes?

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