Practicing with grace: Covid-19 and the coming eviction crunch

By Manaire T. Vaughn

To truly understand the impact of the coronavirus pandemic, we must look at all covid-related legal issues with a systemic lens and be open to creative problem solving. It’s hard to think of an area in which this is more emphatically true than with respect to the impending tsunami of eviction filings once federal and local moratoria are rescinded. 

Currently, Minnesota renters are protected from being evicted for non-payment of rent according to the terms of Gov. Tim Walz’s Executive Order 20-79, issued last July 14.¹ But landlords may still file an eviction if the tenant endangers the health and safety of others, significantly damages the unit, or if the landlord or the landlord’s family member seeks to move into the unit. Tenants may also face an eviction if their actions violate specific laws involving drugs, guns, stolen property, or prostitution at the property. These exceptions have caused an uptick in eviction filings.

As a housing attorney, I have seen my share of creative eviction complaints. Minor lease infractions have become grave dangers, and many landlords have conveniently found distant relatives to move into their units. Some landlords have chosen to ignore the moratorium completely by changing the locks on units or simply refusing to make repairs. 

If the current response to Executive Order 20-79 is any indication of what lies ahead, we are in trouble. In a recent study conducted by the U.S. Census Bureau, of the 54,752,332 adult tenants surveyed, 15,031,589 tenants reported no confidence or only slight confidence in their ability to make the next month’s payment.² Additionally, in Minnesota, it is projected that if EO 20-79 is rescinded, there will be about 13,330 eviction filings statewide.³ 

Pause and try to imagine 13,330 eviction filings. Think about your favorite clerk. Imagine what the courts will look like. Standing room only at most first appearances, a massive calendar, slower Zoom hearings, an overwhelmed e-filing system, and the possibility of a super-spreader event. Scary.  

Under Minn. Stat §504b.291, a landlord may bring an eviction action for nonpayment of rent.⁴ Tenants typically have two options in non-payment cases. Tenants can redeem, which requires the tenant to pay back the balance owed within a specified time, or the tenant can ask the court for seven days to move. 

Although more government funding to support tenants who have struggled to pay rent is rumored, it is important to understand the often-lengthy timeline that comes with procuring funding to pay landlords. On average, a tenant receives a letter guaranteeing agency or nonprofit payment assistance two to three weeks after submitting their application—hardly a comfort to anyone facing eviction for nonpayment in seven days. Further, not all tenants will qualify for federal or local funding, leaving a population of tenants facing homelessness. 

If no assistance is available, the tenant will be forced to move. In Minnesota, once an eviction has been filed, it becomes public record. This can have a devasting impact on a person’s ability to find housing. Tenant-screening agencies can report on evictions for seven years. As such, eviction filings are often seen as scarlet letters by prospective landlords, and can be used to exploit tenants. People with evictions on their record are often forced, for example, to pay double deposits, and they are more likely to be rented units with significant repair issues.

Another challenge to consider is how the covid-19 pandemic has exacerbated existing racial disparities in housing. Prior to the pandemic, Black, Indigenous, and People of Color (BIPOC) were more likely to face eviction than white renters.⁵ Across their lifetimes, one in five Black women are evicted, compared to 1 in 15 white women.⁶ 

Pandemic fallout will likely worsen this disparity. A recent study revealed that renters of color have reported less overall confidence in being able to pay their next month’s rent and have reported not having paid the previous month’s rent on time at disproportionately higher rates than their white counterparts.⁷ Additionally, over half of Black and Latinx renter households were cost-burdened going into the pandemic, compared to 42 percent of Asian and white households.⁸

A call for grace

The incomparable legal scholar and Howard University Law School Dean Charles Hamilton Houston once said, “A lawyer is either a social engineer or a parasite on society.” As we begin to make sense of everything that has happened during the covid-19 pandemic, it is imperative that lawyers remember the importance of being social engineers. 

The need for systemic thinking in eviction cases is crucial. Before lawyers rush to file evictions once the current moratorium is rescinded, they must first examine how the tenant got behind.

Here are a few questions to ponder before filing an eviction:

• Was the tenant unemployed for a significant period? 
• Did the tenant lose a loved one during the pandemic? 
• Is the tenant a domestic violence survivor?
• Has the tenant made partial payments during the moratorium? 
• Is the tenant from a historically marginalized community? 
• Is a solution possible without filing an eviction? 

I am sure some lawyers will argue that approaching eviction cases systemically creates opportunity for inequality. However, systemically approaching cases furthers equality by creating opportunities for equity. All situations will not be the same, and thus we cannot apply a “one size fits all” approach.  

We must be creative, and abandon false narratives. For example, the narrative that tenants do not want to pay rent and are simply seeking to exploit the moratorium is untrue. Most tenants want to pay, and are willing to work with landlords if afforded the opportunity to do so. Working with tenants does not mean setting unrealistic deadlines to pay balances in full. Working with tenants does not mean forgoing repair requests until past due balances are paid. Working with tenants involves assessing all factors that may have contributed to the past due balance, and figuring out the necessary steps to resolve the outstanding balance. 

If a tenant is unable to pay the past due balance, enter into mutual termination agreements that are fair, and provide the tenant with a neutral reference. If an eviction has been filed, request that the case be marked confidential, and allow the tenant to get the case expunged. 

Landlords need money to operate. I get it. Non-paying tenants compromise business operations and can cause significant financial burdens. But as we quest to be social engineers, we must think about the lasting impact a hastily made decision centered in profits can have. We must challenge ourselves, and ask if we are a part of the solution or the problem. 

Tenants are people. They too have experienced the ongoing trauma created and exacerbated by the covid-19 pandemic. Is having an empty unrented apartment or home worth uprooting a family? 

Although the future remains uncertain, we know that the moratorium will eventually be rescinded. When that awaited day comes, practice with grace. You just may change the trajectory of someone’s life. 

¹  https://www.leg.mn.gov/archive/execorders/20-79.pdf  

² Table 2b: Confidence in Ability to Make Next Month’s Payment for Renter Occupied Housing Units (United States Census Bureau 3/10/2021). https://www.census.gov/data/tables/2021/demo/hhp/hhp25.html 

³ Larry McDonough, Housing Issues in the Justice Tsunami: Legal Issues Now and Eviction Estimates When Minnesota Reopens (Poverty Law UMN Law School and UST School of Law Jan 2021). 

⁴ Minn. Stat §504b.291

⁵ Brittany Lewis, The Illusion of Choice: Evictions and Profit in North Minneapolis (2019). http://evictions.cura.umn.edu/illusion-choice-evictions-and-profit-north-minneapolis-full-report  [https://perma.cc/X36S-FD36] (reporting landlords disproportionately file evictions against Black women).

⁶ Jaboa Lake, The Pandemic Has Exacerbated Housing Instability for Renters of Color (Center for American Progress, October 2020). https://www.americanprogress.org/issues/poverty/reports/2020/10/30/492606/pandemic-exacerbated-housing-instability-renters-color/ 

⁷ E. Benfer et al, The COVID-19 Eviction Crisis: An Estimated 30-40 Million People in America Are at Risk (The Aspen Institute August 2020). https://www.aspeninstitute.org/blog-posts/the-covid-19-eviction-crisis-an-estimated-30-40-million-people-in-america-are-at-risk/ 

⁸ Joint Center for Housing Studies of Harvard University, The State of the Nation’s Housing 2020 (Harvard University November 2020). https://www.jchs.harvard.edu/sites/default/files/reports/files/Harvard_JCHS_The_State_of_the_Nations_Housing_2020_Report_Revised_120720.pdf