by Wade Rathke
September 16, 2020
New Orleans I didn’t want to be right on this, but from any reading of the Center for Disease Control’s federal eviction ban, it was clear that it was going to be a hot mess when it came to implementation. At one level, the order was full of a Swiss cheese of holes left open to subjective interpretation, self-certification, and potentially contentious disagreements. The CDC offered no straight path for tenants to follow, other than a declaration statement of their income, and no incentive for landlords to do anything but grin and bear it, which they are notoriously unable to do. With neither the tenants nor the landlords getting any relief, they would all just swim in the unhappy stew until the end of the year. What could go wrong? Just about everything it had seemed to me, and, tragically, that seems to be playing out around the country.
A story by Matthew Goldstein in the New York Times makes the case that any dental inspection of the CDC order to determine whether or not it has any teeth or is all gums, pretty much depends on where you live and even what judge you might happen to draw, if you are facing eviction. Local judges in North Carolina have questioned the constitutionality of the order, and a landlord in Atlanta has filed suit over the question. Some judges believe the order only affects tenants who were covered under the CARES stimulus package. Some think it only deals with new filings or freezes them in place. Some don’t seem to care what the order says and ignore it completely. About the only encouraging word came out of New Hampshire of all places where,
…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.
Anarchy rules and tenants suffer. Housing advocates, lawyers, and professors who study this are all unanimous in arguing that there needs to be uniform interpretation and implementation of the order, but without a real mechanism for enforcement, how is that going to happen? The fines detailed in the order were significant, but I would take a bet that when this is all said and done, less than a handful of landlords will suffer any penalties, and one or none will end up with a $200,000 hit. This is actually why we elect people to Congress to make real laws and real policies that have the full strength of the federal government, and proof again why the US pandemic response has been so lame and incompetent.
Meanwhile the big boys do what they want, when they want, and how they want. According to the Private Equity Stakeholder Project,
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….
What’s a $100 or $200,000 fine to the big whoops, compared to losing rent from tenants, imperiled and out of work? It’s chickenfeed, and makes a mockery of the order from the CDC providing any hope for most tenants as little more than chicken scratch.