Posted May 9, 20214:18 pm
Written by Carly Stern and Mollie Bryant in The Sun Herald on 05/09/2021.
Genea Wall was resting in her San Diego, California condo on a November night when the doorbell rang. Wall was nursing an open wound on her foot, which hadn’t been at full strength since a surgery in 2019, so she rose slowly to find a notice pinned to the front door.
The paper stated that her landlord was withdrawing the residence from the rental market to “conduct substantial repair and remodel.” She had 60 days to leave.
At first, Wall felt like this had to be some sort of sick, retaliatory joke, she said. Since August, she’d been asking her landlord to make repairs to the two-bedroom condo she’d previously shared with her aunt. But her landlord replied that those repairs weren’t high on her list, emails show.
Wall, a 48-year-old Black woman, tried to reach an agreement and continued paying rent through October while dealing with bedbugs, mold and a hole in her kitchen where vermin were entering, she said. The conditions were particularly harmful for Wall’s asthma and eczema, on top of the foot injury that already limited her hours and income as a contractor for Uber, Lyft and Instacart.
Wall eventually filed a code enforcement complaint through the city, she said. She shelled money out for expenses like fumigation, and she could barely sleep from the stress. When November rent came due, Wall filed a document that allows California residents to claim financial distress from the pandemic and gain protection from the state’s eviction ban.
That’s when the notice arrived.
“I kept feeling like, ‘Am I on a hamster wheel of chaos?’” she said. “When you’re in the middle of the chaos, you start reaching for straws. And sometimes those straws have nothing attached to them, and you fall.”
About eight months since the Centers for Disease Control and Prevention (CDC) banned certain evictions, advocates say that many at risk of losing their homes still don’t know the rule exists — a serious flaw when renters must fill out paperwork to be protected by the moratorium.
And 12 legal aid attorneys, housing advocates and other experts told Big If True the ban has not prevented landlords from exploiting loopholes in the policy or sidestepping it altogether.
Advocates say that landlords are filing more evictions that allege criminal activity and other lease violations that aren’t covered by the ban. In some cases, renters who should be protected may face eviction and owe both back rent and the balance of their lease.
Meanwhile, a booming housing market is pushing home prices up and renters out, as property owners seek to capitalize on climbing values or move into rental units under financial hardship themselves.
After months of strain, some conflicts between landlords and their tenants have led to violence.
In March, a landlord in Albany, New York was arrested on allegations that he kidnapped two tenants at gunpoint and left them in a cemetery. New York City station WABC reported that his actions stemmed from frustration that he couldn’t evict the renters because of the CDC moratorium.
One of Southeast Louisiana Legal Services’ clients was stabbed during an argument with his landlord, Executive Director Laura Tuggle said. In another case, a pregnant woman called police after a uniformed sheriff’s deputy attempted to force her out of her home without any eviction papers or the authority to do so, as deputies don’t evict tenants in Louisiana.
The New Orleans Advocate reported in March that the deputy, who Tuggle said was a friend of the landlord, was the subject of an internal investigation at the Jefferson Parish Sheriff’s Office.
“I think the desperation that a lot of folks are feeling is starting to really come out this late in the pandemic,” Tuggle said. “These kinds of things — they just don’t typically happen.”
Landlords harassing, threatening and assaulting tenants has reached a new level, said Cassandra Goodman, director of housing and homelessness services for Neighborhood Legal Services of Los Angeles County.
“They just sort of lost it,” she said. “And the tenants bear the brunt of it.”
OTHER REASONS FOR EVICTIONS
As millions of Americans lost work a year ago, Mississippi created a statewide eviction ban. Before it expired last June, the moratorium offered a glimpse of how some landlords would respond to such bans.
“What we found very quickly were landlords trying to get around the eviction moratorium,” Mississippi Center for Justice housing attorney Will Bedwell said, adding that he saw a marked increase in illegal lockouts and utility shutoffs.
Abigail Staudt, managing attorney for the Legal Aid Society of Cleveland’s housing group, and other attorneys said some landlords have avoided making major repairs to push renters out. Most landlords in Staudt’s service area in Ohio know rent assistance is in place or on the way, she said, but others have grown frustrated while waiting for the relief.
“It just has taken longer to make that turnaround from application to a check in the landlord’s hand, so I think there are some landlords — who are probably in the minority — who have taken matters into their own hands,” Staudt said in March.
In January last year, 97% of evictions in Tulsa County, Oklahoma were filed for past-due rent, according to a report from the University of Tulsa’s Terry West Civil Legal Clinic. Because landlords can’t evict tenants for past-due rent under the CDC ban, Eric Hallett, the statewide coordinator of housing advocacy for Legal Aid Services of Oklahoma, expected evictions to fall dramatically. That’s not quite what happened.
“The CDC moratoria on evictions is supposed to prevent rent-based evictions, and if 97% of our evictions are rent-based, why did eviction filings only drop by a third?” Hallett said.
Legal aid attorneys in seven states said that some landlords have shifted the allegations in their eviction filings away from rent nonpayment, citing lease violations and other claims that make renters ineligible for protection under local, state and federal bans.
In Tulsa County, Hallett said the most common lease violation currently cited in eviction filings is that the tenant was involved in criminal activity. Those allegations often lack evidence, like a police report, citation or arrest, he said, making them difficult for a landlord to prove in court.
Some renters have been evicted based on allegations they posed a health and safety threat, including through nuisance complaints, said Ora Prochovnick, director of litigation and policy at the Eviction Defense Collaborative in San Francisco.
“Some landlords are beefing up their allegations to try to fit that definition,” said Margaret DeMatteo, senior supervising attorney at Legal Assistance to the Elderly in San Francisco. “Unfortunately, what that translates into is the most disabled folks are being evicted.”
Many evictions citing public health and safety issues occur in affordable housing communities that provide supportive services to residents, such as help with mental health care or employment, Prochovnick said.
“There’s an escalation of some of these … so-called nuisance behaviors,” Prochovnick said, because tenants haven’t been getting the supports they need.
Prochovnick added that some housing providers are “using eviction as behavior modification. And that’s a pretty heavy bludgeon to use.”
As the economic impact of the pandemic stretches on, some landlords have terminated the leases of tenants who fell behind on rent since last year. Legal aid attorneys in five states, including Ohio, Louisiana and Mississippi, said that they’ve seen a rising number of evictions filed against these “holdover” tenants, who continue to stay in the property after their leases end.
In some courts, legal aid attorneys said, judges consider holdover evictions a stand-in for past-due rent. In those places, courts tend to side with tenants, preventing their eviction.
Other courts decide case by case. Letters, text messages or other communication between landlords and renters can sometimes persuade judges that the eviction was really about rent, said Tuggle, the head of Southeast Louisiana Legal Services.
Exemplifying this patchwork approach to a single issue, Hallett said that in Oklahoma, courts in rural areas have largely avoided evicting holdover tenants, while judges in the largest counties believe an expired lease eclipses the CDC ban.
“It is a huge, major failing of the CDC order,” Hallett said. “In reality, these moratoria have been going on a year now, and most leases don’t exceed one year, so for all of these families that had been protected by the eviction moratoria, their leases have been expiring, so fewer and fewer of them are actually protected by the CDC in counties and in states where the judges will allow expiration of a lease to overcome the CDC’s protections.”
In California, landlords can also withdraw building units from the rental market through a state law called the Ellis Act. Some landlords have been leveraging the law to continue evicting tenants during the pandemic.
For Hallett, dodged eviction bans validate a push in Oklahoma to ensure tenants have access to attorneys.
“I think all of these loopholes show why it’s important to have a right to counsel in housing court, because while a clever lawyer will exploit loopholes, a legal aid lawyer will help close those loopholes,” Hallett said.
ARMING RENTERS WITH LAWYERS
In housing courts, most tenants don’t have attorneys, but most landlords do. Renters without a lawyer are much more likely to lose in court.
This creates a power imbalance, where landlords’ counsel may feel emboldened to intimidate or push renters out, said Goodman, the housing services director for Neighborhood Legal Services of Los Angeles County.
“There are huge differences in terms of the outcomes of cases when you have attorneys representing someone,” she said. “The process is not clear and clean, … and there are a lot of collateral consequences to getting (an unlawful detainer) eviction in your name.”
This issue is coming to a head as evictions mount during the pandemic. Tenants without counsel may enter unfavorable settlements that jeopardize their ability to transition into new housing. Attorneys have been helping clients negotiate so-called “soft landings,” such as additional time, money to cover moving expenses or an agreement not to report eviction cases to background agencies, said Brandon Lawrence, managing attorney of the Right to Counsel Workgroup for the Legal Aid Foundation of Los Angeles.
Eviction judgments and other housing disputes can stay on tenants’ background reports for years, even if they win their cases, potentially affecting their ability to secure housing in the future.
“We will not settle anything … if the landlord does not agree to mask the case, which is hiding it from the public,” said Gregory E. Knoll, CEO and chief counsel for the Legal Aid Society of San Diego, which runs a housing pilot that guarantees counsel to qualifying tenants in eviction cases.
Sealing records prevents renters from being entered into a registry that landlords can access when vetting prospective tenants. Knoll describes the registry as “the dreaded black hole” of housing disputes.
“It doesn’t matter the outcome (of the case),” Knoll said. “If your name’s there, you’re not going to get an apartment unless you know a landlord.”
Four years ago, New York City became the first city to create a right-to-counsel program for those facing eviction. Since then, a growing number of cities, including Cleveland, Louisville, Kentucky and San Francisco have passed similar laws meant to level the playing field between tenants and landlords.
In March, the Seattle City Council passed an ordinance guaranteeing lawyers to its lowest-income tenants. A month later, Washington became the first state to adopt a right-to-counsel law. Maryland lawmakers are also considering a bill that would give low-income renters access to counsel in eviction proceedings.
In places where a right to counsel is not enshrined in law, pilot programs can fill the gap. In 2015, California launched a program to provide legal services to tenants facing eviction in seven counties.
Edmund Witter, senior managing attorney at the King County Bar Association’s Housing Justice Project, said Washington’s program will be the first in this country to provide the right to counsel in a rural area.
“Landlords are getting away with murder in rural areas,” Witter said. “The cases are a lot more egregious, even though they’re fewer.”
Wall, the renter in San Diego, has experience working in leasing, so she knew where to seek help when she received her eviction notice. She contacted a city council representative, who directed her to the nonprofit community organization ACCE Institute, along with the company Legal Shield and the Legal Aid Society of San Diego, which assigned her an attorney.
In February, Wall’s lawyer alleged in court filings that her landlord had failed to make electrical, plumbing and other significant repairs to the unit. The records also claim that the eviction was filed against Wall in retaliation for her past-due rent connected to the pandemic, her requests for repairs and her complaint to the city.
In early March, Wall received a letter saying her landlord’s management company had dropped the case. She felt a surge of relief, though it was short-lived.
“What happens after covid, and she wants to put me out?” she said.
She dreams of saving enough to start a nonprofit to serve trauma victims and buy a home of her own.
“It’s your house, your walls,” she said. “You don’t have to worry about somebody saying, ‘Get the hell out of my property. … I don’t want to rent to you no more.’”