Juliet Brodie is a professor of law at Stanford Law School and director of its Community Law Clinic, where she represents low-income tenants in eviction cases. Larisa Bowman is a visiting associate professor at the University of Iowa's College of Law and previously practiced eviction defense at a legal services organization in New York City. The views expressed in this commentary belong to the authors. View more opinion at CNN.
(CNN)The Covid-19 pandemic has exposed a basic fact of American life: When people unexpectedly lose work or face unforeseen expenses, they can't pay their rent. What's worse, they often get evicted as a result. As lawyers who represent low-income tenants, we are used to explaining to our clients the legal insignificance of their economic circumstances, however compelling. Your boss cut your hours? Not relevant. Your car needed a $600 repair? No defense. Your child support check didn't arrive? Not the landlord's problem. We tell our clients, "The law doesn't care about that." We usually follow up with, "It doesn't seem fair, does it?"
Juliet Brodie
Larisa Bowman
The pandemic, terrible as it is, has given some tenants a reprieve from the usual injustice of eviction. It took the greatest public health emergency in a century, but the US Centers for Disease Control and Prevention, followed by Congress, has temporarily prohibited evicting tenants who can't pay rent because of a loss of income or unexpected medical expense. The principle that made this eviction ban possible—that people shouldn't be rendered homeless and their health jeopardized when they've done nothing wrong—should be extended past the Covid-19 crisis.
Long before Covid-19, millions of American families were at risk of eviction each year. Rent hikes have outpaced wage growth for decades, with predictable results. According to Harvard's Joint Center for Housing Studies, more than 20 million American households were "rent-burdened" in 2019, defined as paying more than 30% of their income toward rent. Lower-income households are even more rent-burdened; the majority of tenants living below the poverty line, who are disproportionately people of color, spent more than half their income on housing costs in 2018. With rents too high and incomes too low, nearly 4 in 10 Americans don't have enough cash on hand to cover an unexpected $400 expense. They have no safety net to catch them when something goes wrong.
And when that something does go wrong, tenants can be quickly evicted. In California, for example, a tenant who fails to pay within three days of being notified by the landlord can be put out on the street a mere four to six weeks later, depending on how court days line up. There are some defenses (such as bad housing conditions), but neither a disruption to income nor an unavoidable but necessary expense cuts it. The result? Swift, court-ordered eviction.
But the pandemic has changed that. In September, the CDC issued an unprecedented and sweeping order that effectively halted nonpayment evictions nationwide. Congress extended the order through January 31, 2021, and President Joe Biden ihas taken executive action calling for an extension through March. The order applies only to low-income tenants who undertake best efforts to pay at least partial rent, seek available rental assistance, and have no other housing option. It does not relieve tenants of the obligation to pay; landlords can still sue them for the money in civil court. What it does do is take eviction off the table.
The rationale for the CDC order is public health in the face of the pandemic. People who are evicted are likely to end up in shelters or doubled-up with family and friends where social distancing is virtually impossible, or living on the street, which correlates with a higher incidence of severe Covid-19. But, pandemic or not, eviction is always a public health crisis. According to a study published in Pediatrics in 2018, simply being behind on rent is associated with poor health outcomes for children and their caregivers. Eviction itself is associated with many costly and negative social effects like food insecurity, job loss, and academic decline.
The CDC order could easily be extended beyond the pandemic. The order itself practically invites it. To claim its protections, tenants do not have to connect the dots between their inability to pay rent and Covid-19. Any tenant who has experienced either a "substantial loss of household income" or "extraordinary out-of-pocket medical expenses," and meets the other requirements, is eligible. Why can't tenants always be protected from eviction in these kinds of situations? Why should eviction ever be the response when tenants can't pay rent due to circumstances beyond their control? State and local jurisdictions, which normally regulate when eviction is permissible, could and should prevent these forced displacements—as a matter of basic fairness.
Like the present order, an enduring "not-my-fault" defense should apply only to tenants who did nothing wrong and who have no other housing option. It should be paired with relief on the landlord side of the ledger. After all, the landlord isn't to blame for a tenant's sudden hardship. And landlords — at least some of them — rely on rents to meet their own bills and may not be able to hold off their creditors while they pursue tenants for rent debt in civil court.
This isn't rocket science. First, robust public and philanthropic financial assistance should be available to strapped tenants and distressed landlords alike. We should prioritize landlords who truly need their rental income over those reaping exorbitant profits from supply-and-demand dysfunction. Landlords under financial strain should be protected against foreclosure (New York's recent anti-eviction bill includes this measure). These policies would incentivize landlords to work with their existing tenants instead of using eviction as the easiest way to generate income from a rental unit. In the longer term, we need the kind of moonshot investment in building rental housing that would bend the price curve to a place where tenants are less strapped in the first place. Raising the federal minimum wage would help, too.
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Our collective willingness to acknowledge that morally blameless families should not be evicted during a public health crisis is a good first step. But if we can devise a system to forego evictions while balancing the needs of landlords in an unprecedented year when economic catastrophe has befallen millions of Americans simultaneously, surely we can devise one for "normal" conditions.
Tenants who do everything right but still fall behind on rent should never be put out on the street. Let this lesson survive the pandemic. Let us tell our clients that the law does care.