CRITICS: EVICTIONS EFFORT NOT ENOUGH

With thousands of Va. cases pending, Northam could issue an executive order to extend pandemic ban, but he’s so far resisted

Like thousands of Virginians, 55-year-old Danny Saad got laid off in March, when people began testing positive for the coronavirus in the state and businesses began closing.

He’d been working at Nordstrom, but suddenly was out of a job while having to care for his parents, who live with him in an apartment complex in Fairfax County. His adult son and daughter, who also live with him, lost their jobs or had their hours cut.

Until now, he’d managed to pay the rent on time, with his children contributing financially. But this month, he reached out to his landlord, explaining that he would have trouble paying. The landlord immediately responded with a letter saying Saad would have five days to pay rent or he would take legal action.

Despite saying he has a good relationship with his landlord — Saad has been living in the same apartment complex for 15 years — he’d been sued before for unpaid rent. In 2015, he underwent six cancer surgeries in five months and had to file for bankruptcy as a result of his medical bills.

Around the complex, Saad has seen stacks of eviction notices that are being placed at people’s doors. Since the Virginia Supreme Court lifted the moratorium on evictions last month, 7,315 cases have been heard, according to information provided by Virginia Court Data, a private group that makes case records searchable statewide since Virginia courts don’t. As of Saturday, 9,760 cases are scheduled to be heard through the end of August.

Virginia is trying to help people like Saad stay in their homes, including with a new $50 million pool of federal money the state received. But he and others say the state should be doing more. They point to other governors using their executive powers to bar evic

tions during the pandemic, something Virginia’s Democratic governor, Ralph Northam, has resisted since the Virginia Supreme Court’s eviction ban — which he asked for at the start of the pandemic — ended in late June.

While he’s waiting for notice about a court date, Saad, who is originally from Lebanon, is finally going back to work next week with reduced hours. And as someone who previously had cancer and could have a weakened immune system, he has to worry more than most about exposure to the virus.

“Here are cases surging, it’s scary, especially for people like me with an underlying issue,” he said. “I always have fears, because if I catch it I won’t live.”

Saad said he wishes Northam would issue an executive order extending the moratorium on eviction cases, as governors of both parties in states including Pennsylvania, Maryland and New Jersey have done.

“I don’t know why Virginia would not do it yet. People are still struggling,” Saad said.

On Tuesday, after Newport News Del. Marcia “Cia” Price asked what can be done under the law to bar evictions during the pandemic, Virginia’s attorney general issued an advisory opinion saying a governor’s executive order is one possibility.

“Whether any particular executive order is an appropriate exercise of emergency power depends on the scope of the executive order and the facts and circumstances,” Attorney General Mark Herring wrote.

Elaine Poon, an attorney with the Legal Aid Justice Center, said Herring’s opinion was clear: The governor has the authority to issue an executive order halting evictions, and he can look to other states where that’s happened as models.

“The next question is whether he will exercise the power to prevent the potentially thousands, maybe even hundreds of thousands of people who may become homeless without a moratorium,” Poon said in an email.

In June, Northam’s administration said an executive order would likely raise legal complexities that would “hinder the expediency needed to help Virginians.” A spokeswoman for Northam’s office reiterated that position Wednesday.

“The most important thing is keeping Virginians in their home now and in the long-term,” Alena Yarmosky said in an email. “That is why the governor put an initial $50 million into Virginia’s comprehensive eviction and rent relief program, and why he continues to urge General District judges to postpone docketing eviction proceedings.”

Some advocates think Northam is hesitant to issue an executive order because he’s afraid it’ll lead to a lawsuit.

Steve Fischbach, the litigation director for the Virginia Poverty Law Center, said the threat of having an executive order challenged in court isn’t an excuse not to issue it. The governor has been sued several times over his executive orders during the pandemic, including for his restrictions on businesses and places of worship.

“So rather than do something because someone might get an injunction against it happening, we’ll do nothing to help Virginians,” Fischback said. “It’s a cop out. It’s not a legitimate explanation in my opinion.”

‘Definitely panicked’

On the first day following the end of the moratorium, ForKids CEO Thaler McCormick said the organization’s housing crisis hotline received 935 calls, compared to the 250-300 calls it gets on an average Monday in the summer. In an interview on Monday, McCormick said the hotline had received more than 4,500 calls since the moratorium ended.

“I think people are definitely panicked,” she said. “The stress level has gone up. Some people are calling more than one time, elevating call volume.”

ForKids is one of 30 organizations distributing part of $50 million in federal CARES Act funding Northam designated for rental and mortgage assistance as the eviction moratorium ended. ForKids received $900,000 so far to distribute to households in Virginia Beach, Norfolk, Chesapeake and Suffolk.

McCormick said her staff is reviewing a little more than 100 applications, but implementation of the relief program has been challenging. Applicants need to provide documentation like proof of income and a lease, and landlords have to be willing to participate in the program.

In a report released Tuesday, the state Department of Housing and Community Development said applications are taking five to 14 business days to be processed. In the first nine days since the rent relief program launched, 310 households have been approved for a total of $356,000 in help, an average of about $1,148 each. Another 591 households have been approved pending required documentation.

The organizations distributing the money say households “close to eviction” who are applying for the rent relief program aren’t eligible because they aren’t able to certify that they can’t pay rent because of a job or financial loss related to the COVID-19 pandemic, a criteria for receiving the federal assistance.

Court data shows 71% of cases heard last week were filed in February and March, before the pandemic took hold in Virginia. Of the 3,017 cases that were heard last week, 27% were continued and 35% were dismissed. In 23% of the cases, the judge ruled in favor of the landlord.

Newport News, Norfolk, Virginia Beach and Portsmouth courts take up four of the top 10 spots for courts that held the most eviction hearings last week, with Newport News topping the list at 343 hearings, in 27% of which the judge ruled in favor of the landlord.

Fischbach, Thaler and Amy Disel Allman, an attorney with the Virginia Legal Aid Society, said many people aren’t showing up to their court hearings and are receiving default judgments, meaning the judge automatically rules in favor of the landlord and orders them to be paid the rent owed. That’s also when a landlord can ask the sheriff for a writ of possession that forces the tenant to vacate the home within 72 hours.

Disel Allman called it a doubleedged sword as people are having to decide whether to risk their health to go to court during a pandemic.

Legislation

Price, a Democrat who was joined by 11 other delegates in asking for the attorney general opinion, said she’s looking at filing a package of legislation during the upcoming special General Assembly

session, expected to be in August, to address the housing and eviction crisis.

But she’s concerned with how long it could take the legislation to go into effect. Any bills passed during a special session must be approved by the governor, and if Northam wants to amend or veto any bills, lawmakers would have to come back the sixth Wednesday after the special session ended to consider his changes.

“We are working on trying to fix a broken system that the pandemic has exacerbated,” she said. “But it would take the other two branches of government in order to take immediate action.”

Price got a bill passed earlier this year that allows tenants to ask for a 60-day continuance on an eviction hearing if they show proof they’ve lost income because of the pandemic.

Fischbach from the Poverty Law Center said a General Assembly-backed eviction moratorium was at the top of the center’s priorities, but it needs to be coupled with comprehensive rent relief, and he didn’t think $50 million from the CARES Act was enough. The Democratic-led U.S. House of Representatives recently passed another relief package that includes $100 billion in emergency rental assistance, but it has yet to pass in the Republican-led U.S. Senate.

When asked if the governor would support legislation halting evictions, Yarmosky from the governor’s office said Northam was working with state legislators on a “variety of issues to be taken up during the special session.”