How Policymakers (and Courts) Sabotaged Eviction Moratoria
Emily Benfer Apr 02, 2021
When Tmeka Thorpe received a notice of eviction, she pleaded with her landlord: “Can you just work something out? It’s in the middle of a pandemic.” She tried to pay the rent, but the recalcitrant landlord refused to accept it and the judge, skeptical of the protections she claimed under the federal moratorium, ordered the eviction, ruling that she had stayed beyond the lease term.
Thorpe and her children were just one of the 71,000 families and individuals who received an eviction filing in North Carolina during the pandemic, where judges have denied only three percent of cases despite both the federal and state moratoria on evictions. Across the country, people are falling through the gaps left by eviction moratoria intended to protect them.
The pandemic driven economic recession has resulted in widespread job and wage loss that has placed tens of millions of families and individuals at risk of eviction. While Congress has appropriated over $45 billion in housing supports, rental assistance has yet to reach the most vulnerable renters, and the lack of funds, combined with fickle interpretations of moratoria, have put one in five renter households with children at risk of displacement.
Across the country, eviction moratoria have been among the most widely used and well publicized interventions to protect renters during the pandemic. But as Thorpe’s experience shows, they are hardly sufficient to prevent widespread harm. Instead, the patchwork of local, state, and federal moratoria have proven porous, needlessly complicated, poorly understood, and rarely enforced. While they should remain part of the solution, the moratoria will only be effective if they are strengthened to protect all renters throughout the crisis and used alongside supportive measures like rental assistance and the right to counsel
State Eviction Moratoria: A Fraying Patchwork
At the outset of the pandemic, state and local policymakers immediately identified the importance of housing stability to stopping the spread of COVID-19. Governors, legislators, and courts across 43 states, five U.S. territories, and the District of Columbia adopted varied and temporary eviction moratoria—some lasting as few as seven days and others extending for more than a year. In mid-March 2020, courthouses across the nation closed and heard only emergency cases. Since evictions were categorized as “non-essential,” eviction proceedings were postponed, creating de facto moratoria. For their part, governors and legislators, exercising emergency authorities, suspended forcible entry and detainer (eviction) statutes or limited the ability of landlords and sheriffs to pursue or enforce eviction orders. By mid-May 2020, governors in 31 states issued statewide freezes on at least one stage of the eviction process, including the landlord’s initiation of the lawsuit, the court hearing or order of eviction, or the sheriff’s execution of the order.
But these interventions were heterogeneous, patchwork in nature, and largely short-lived, falling far short of model protections and receiving low-scores in my and the Eviction Lab’s COVID-19 Housing Policy Scorecard. States far more frequently halted the final stage of the eviction process (the sheriff’s execution of an order of possession) than the initiation stages (notice to tenant and filing of an eviction). As a result, even tenants who ultimately avoided eviction have been left with a permanent legal record that negatively affects credit scores and pushes families into substandard housing and under resourced communities. Only the District of Columbia sealed COVID-19-related eviction records and only a handful of states have eviction expungement laws that predate the pandemic.
The majority of these state eviction moratoria lapsed by July, when the COVID-19 daily infection count was more than double what it was in April. This premature lifting of state moratoria further thwarted their purpose. A recent study that Dr. Kathryn Leifheit led, and I co-authored, found that the lifting of moratoria in 27 states was associated with increased COVID-19 transmission, infection, and death, amounting to 433,700 cases and 10,700 deaths that could have been avoided. Today, just over a dozen state moratoria remain in effect and many are at their weakest level of protection, prohibiting eviction only in certain cases, like nonpayment of rent or where a tenant can prove a COVID-19 hardship, and blocking only part of the eviction process.
As the number of COVID-19 cases climbed, landlord lawsuits seeking to enjoin state moratoria increased, the protections of state moratoria expired or diminished, and courts found ways to reopen in order to process the mounting cases. Despite the designation of eviction proceedings as non-essential, courts resumed eviction hearings in person or remotely as early as April 2020. While remote hearings, permitted or adopted in nearly every state, ensured the physical safety of litigants and court personnel, the remote format itself created access to justice issues for many tenants who faced technology barriers or whose right to be heard could be obstructed simply by a mute button. In other jurisdictions, courts spaced out hearings or shifted to larger spaces to facilitate social distancing. The Franklin County Housing Court in Ohio set up eviction court in the Columbus Convention Center in order to process eviction hearings while limiting face to face interactions and allowing for social distancing. In March 2021, eviction filings in Columbus were 31% above historic averages. While the hearings alone may not have increased the transmission of COVID-19, the evictions ordered and housing displacement that followed likely did.
Although every state-level court upheld the legality of eviction moratoria, most governors lifted or eroded them by narrowing eligibility, increasing the burden on tenants to prove eligibility, and expanding loopholes for landlords. In more than half the states with moratoria, policymakers limited protections to nonpayment of rent cases. In Connecticut, renters received even lesser protections: the governor amended the moratoria to allow evictions when there is “serious nonpayment of rent,” exposing the most economically unstable tenants to harm. In other jurisdictions, governors required tenants to demonstrate a COVID-19 hardship, usually defined as health or financial hardship due to the pandemic. These narrow approaches created multiple gaps in protection. For example, where landlords sought to evict a tenant who failed to pay rent, they could file for eviction on the basis of a minor lease violation or a holdover beyond the lease term to skirt the moratoria. In states that limited protections to tenants with a COVID-19 hardship, it had the effect of converting moratoria to affirmative defenses that tenants were required to raise and prove in court in order to avoid eviction. Because the vast majority of tenants lack access to counsel, those who needed protection rarely received it.
Federal Eviction Moratoria: Piecemeal Protections
In response to insufficient state action, the Centers for Disease Control and Prevention (CDC) issued a federal eviction moratorium, effective September 4, 2020 and extended through June 30, 2021. While the federal moratorium is critical to protecting public health, it’s insufficient for a number of reasons. First, instead of automatic eligibility, the moratorium requires tenants to trigger their rights by providing their landlords with a written declaration under penalty of perjury. Moreover, the adoption, interpretation, and implementation of the moratorium has varied from state to state and even across counties, exposing fault lines and thwarting the order’s public health potential. The Texas Justice Court Training Center, for example, recently placed tenants across the state in jeopardy by issuing deleterious guidance that the federal moratorium has no impact on courts’ ability to order an eviction but merely provides criminal or civil penalties for landlord violations. Tenants, often without legal representation, are forced to untangle the confusing and disparate interpretations of the moratorium by local judges, who get to decide when in the process an eviction is halted.
Guidance from the CDC and the U.S. Department of Health and Human Services also narrowed protections by allowing landlords to both file evictions even against tenants who are covered by the moratorium (without informing them of their rights), and challenge the veracity of tenant declarations. Many landlords have succeeded in evicting tenants by exploiting these loopholes, namely the ability to bypass the moratorium and evict tenants for reasons other than nonpayment of rent, like the non-renewal of a lease that Tmeka Thorpe’s landlord cited as the reason for her eviction. As the Government Accountability Office reported, since the federal government has yet to address these gaps, many renters remain unsure of their rights or without any protections at all. The result of inconsistent coverage, lack of education, and little to no enforcement is a moratorium that has had a much smaller effect on eviction filings, reducing filings by 49.9% on average, than state and local moratoria.
With over half a dozen pending lawsuits challenging the legality of the federal moratorium, there is a risk that any remaining protections will be lifted before housing stabilization and rental assistance is secured. Tenant advocates and national medical associations submitted amici curiae briefs in support of upholding the moratorium. The premature lifting of the order could result in an avalanche of evictions, which numerous studies associate with multiple comorbidities. At the same time, the people most at risk of eviction are also more likely to suffer from health conditions that place them at high risk of severe or fatal cases of COVID-19. During the pandemic, the disproportionate effect of housing precarity and eviction on Black families has continued, making it a driver of health inequity. The U.S. cannot continue to uphold a system that targets women and children and disproportionally affects vulnerable and historically marginalized people and causes severe and lasting harm.
More Effective Solutions for Securing Housing Stability and Public Health
To avert immediate and long-term harm, illness, and death and to protect the health and safety of rentera and their families across the country, federal and state policy makers must engage in a coordinated response that adopts national and state-level eviction moratoria and supportive measures.
Eviction moratoria will only be truly effective if they: stop all—and especially the first—stages of eviction; apply to all renters and types of evictions; are coupled with rental assistance and supportive measures; and are supplanted, ultimately, with systemic and structural reform that cures the underlying housing crisis. A handful of states froze all stages of eviction. States that stopped the earliest stages of eviction were more likely to reduce eviction filing rates and associated COVID-19 harms.
Any interventions will be far more effective if they are uniformly adopted and accompanied by widespread, community-based education of tenants and landlords on rights and obligations, as well as enforcement mechanisms. In one helpful move, the Consumer Financial Protection Bureau (CFPB) recently extended its complaint hotline to tenants facing violations of the moratorium and issued a joint statement with the Federal Trade Commission announcing its intent to investigate evictions that may violate legal rights, especially those that occur without apprising renters of their legal rights under such moratoria. Now, courts must exercise their duty to apply and uphold the law by making it possible for self-represented litigants—the vast majority of defendants in eviction—to raise defenses and exercise their legal rights.
Moratoria only postpone evictions and do not resolve the financial shortfall faced by renters or endured by property owners. This makes additional measures, including equitable rental assistance programs, coordination with family health care providers and social services, and other supports, critical to mitigating the effects of the eviction crisis on public health and the housing market. The adoption of a civil right to counsel in eviction cases and court- or community-based diversion programs can drastically decrease rates of eviction. Supportive measures, such as prohibiting late fees and reporting to credit bureaus, sealing eviction records, grace periods to pay rent, and adjustments to the eviction process are important interventions that, when coupled with robust rent relief programs, can prevent the fallout of the eviction crisis. Although these interventions can increase housing stability, to date only 14 states and D.C. adopted one or more supportive measures other than a utility shutoff moratorium or rental assistance.
In the same way our scientific and public-health sectors have evolved to meet the changing threats of COVID-19, so too must our housing policy. When public health and human life depend on reform, we must replace the system that perpetuates injustice and lasting harm with one that preserves affordable housing and affirms the right to a safe and decent place to call home. For Tmeka Thorpe, home is a distant cry from the short-stay motel where she and her children are currently sheltering in place, but it doesn’t have to be.