Fending off an eviction could depend on which judge a renter in financial trouble is given, despite a federal government order intended to protect renters at risk of being turned out.
The order, a moratorium imposed by the Centers for Disease Control and Prevention, is meant to avoid mass evictions and contain the spread of the coronavirus. All a qualifying tenant must do is sign a declaration printed from the C.D.C. website and hand it over to his or her landlord.
But it’s not as simple as it sounds: Landlords are still taking tenants to court, and what happens next varies around the country.
Some judges say the order, which was announced on Sept. 1, prevents landlords from even beginning an eviction case, which can take months to play out. Some say a case can proceed, but must freeze at the point where a tenant would be removed — usually under the watchful eye of a sheriff or constable. Other judges have allowed cases to move forward against tenants who insist they should be protected, and at least one judge, in North Carolina, has raised questions about whether the C.D.C.’s order is even constitutional.
The uneven treatment means where tenants stand depends on where they live.
“It’s paramount that we have uniform enforcement,” said Emily Benfer, a professor at Wake Forest University School of Law who has been tracking the differing interpretations of the C.D.C. moratorium.
With millions of people unemployed and no progress on an agreement on another relief package, housing advocates and legal aid lawyers are fretting over the confusion. They say they are going to unusual lengths to inform tenants — who usually go to court without a lawyer — of their rights under the moratorium. In Kentucky, there is an online tool for generating declarations. In Atlanta, lawyers created a YouTube video about how to comply with the order. In Indianapolis, housing lawyers are working with the city on a plan to better publicize the need for tenants to sign a declaration of their inability to pay because of the health crisis.
But most pressing, lawyers say, are the wildly varying interpretations of what seems like a simple order.
The C.D.C. says individual renters expecting to make under $99,000 in 2020 are protected until the end of the year if they sign a declaration — under penalty of perjury — that eviction would be likely to leave them homeless or force them to live in close quarters with others. When the order was issued, most legal experts believed that the act of handing the declaration to the landlord would keep the landlord from even filing an eviction case. If the case had already begun, experts believed, the signed declaration would halt the process.
Marilyn Hoffman showed up to a hearing in North Carolina — where court administrators informed state court clerks last week that the protections “must be invoked by a tenant” — and expected to have her eviction case put on hold. But the judge refused to accept her signed declaration.
Ms. Hoffman, who rents a single-family house in Sanford, N.C., said the judge seemed to be under the impression the C.D.C. order applied only to rental apartments that were covered by a previous moratorium under the CARES Act, which had a more limited scope.
“He was very rude. He said, ‘This doesn’t apply to you,’” said Ms. Hoffman, who had lost her job as an aide at a group home for mentally disabled adults and now volunteers at a homeless shelter.
The judge gave Ms. Hoffman, whose monthly rent is $649, 10 days to come up with more than $3,000 in back rent and late fees or face eviction. A group of volunteers tried to appeal the judge’s order on Monday but were told by a court clerk that Ms. Hoffman first needed to pay $500 toward the overdue rent, one of her representatives said.
“If I had the money, I would pay the rent,” she said.
Isaac Sturgill, a Legal Aid lawyer in North Carolina, said judges were doing “a mix of things” for tenants who invoked the C.D.C. moratorium, and eventually they should be more consistent. “Judges and magistrates need an opportunity to ask questions and discuss the law and process it,” he said.
In New Hampshire, the state’s Supreme Court has put the onus on the landlords. An order from the court said they must file affidavits stating that they are in compliance with the C.D.C. order before commencing an eviction proceeding and must notify the court if at any point a tenant signs a declaration saying she can’t pay rent because of the pandemic.
Other states fall somewhere in the middle. In Missouri, some courts are allowing landlords to file eviction cases as long as the landlord states that the tenant has not signed a declaration. In Michigan, court administrators said it was a matter of “judicial interpretation” whether landlords could continue to file eviction actions.
But even with guidance there can be confusion. Geoff Moulton, the Pennsylvania state court administrator, told judges that the plain language of the C.D.C. order means a signed declaration prevents the filing of an eviction and suspends any pending cases. But in a follow-up message to the judges, he said his earlier memo was not intended “to supplant judicial interpretation.”
In Maryland, tenants can’t use declarations to keep an eviction case from starting, but they can use them as a defense once a case begins. The only thing the declaration automatically prevents, according to the Maryland Supreme Court, is a judgment of eviction that puts a renter out on the street.
Maryland is essentially saying tenants have no choice but to go to court if they want to keep their homes, said Matthew Vocci, a Baltimore-area housing lawyer. “That seems to encourage more people to attend in-person court proceedings,” he said. “I’m not a scientist or a physician but I’m uneasy about having more people inside courtrooms.”
Landlord groups have problems with the moratorium, too, because they’re being asked to house nonpaying renters while still paying their own bills, including mortgages, utilities and taxes. Tenant and landlord organizations alike argue that the moratorium would work better if it were paired with money for rent-assistance programs, which would allow everyone to pay their bills.
But with little indication there will be an agreement on another stimulus bill, landlords have already have started fighting the moratorium. Last week, one landlord filed a legal challenge in federal court in Atlanta. That lawsuit contends the C.D.C. order is unconstitutional because it impairs private contract rights and the C.D.C. lacks the authority to “order state courts and relevant state actors not to process summary evictions.”
And even as they argue that the C.D.C. has overstepped, property owners are still filing eviction cases.
Corporate landlords, including private equity firms, filed more than 1,500 eviction actions in large counties in Arizona, Georgia, Florida, Tennessee and Texas since the C.D.C. announced it was imposing a moratorium, according to Private Equity Stakeholder Project, an advocacy group.
Jim Baker, the group’s executive director, said tenants have hardly had a chance to figure out how the moratorium works.
Tonya McElroy, a home health care aide in Georgia who hasn’t worked since March, is awaiting a court hearing to find out if she will be able to stay in her apartment. She owes more than $5,000 in rent.
Ms. McElroy, who has a 12-year-old grandson living with her, was protected by the CARES Act moratorium until it expired in late July. Her landlord filed an eviction action against her on Aug. 31, the day before the C.D.C. announced the new order.
Ms. McElroy is trying to get rental assistance — one of the things she must try to do to qualify for the moratorium. And her daughter helped her print a copy of the declaration from a website and leave it in the landlord’s dropbox. But nobody has returned her calls.
Now, “they won’t even talk to me,” said Ms. McElroy, who couldn’t come up with enough money for a burial service for her father this summer. “All they said is if I didn’t have the money, they will file an eviction order.”