Tenants face evictions despite CDC ban on them
Few moratoriums are more porous and confusing than the Centers for Disease Control and Prevention’s ban on evictions.
Since the CDC ban took effect Sept. 4, Milwaukee County sheriff’s deputies have evicted 109 people from their homes, and landlords filed about 249 new eviction suits. Statewide about 727 eviction actions have been filed through Wednesday.
While the numbers are less than half of what they were during the same period in 2019, it’s more than might be expected given a federal ban during a pandemic.
“People need to know that there are still people getting evicted,” said Heidi Wegleitner, a Legal Action of Wisconsin attorney in Dane County. “The CDC order has not really solved this crisis.”
The CDC ban puts the burden on tenants to figure out if they are eligible
for protection from eviction. Eligible tenants must sign a declaration stating that they meet the criteria that would protect them from eviction actions until the end of the year. The declaration must be given to their landlord.
Wegleitner, who represents clients of Legal Action’s Eviction Defense Project, said many tenants are unaware of the CDC order.
“The big question is does the tenant know about the protection they may have,” she said, adding that there have been cases where tenants didn’t learn of the moratorium until their trial, or when a sheriff’s deputy came to their home with the eviction order.
Courts are handling eviction cases in different ways, including some dismissing cases or delaying action until the moratorium expires at the end of the year. Some are taking steps to ensure that tenants are aware of the moratorium.
The state Supreme Court in Texas last week ordered that when eviction suits are served on tenants, landlords must also give tenants a copy of the declaration and a written explanation of it.
“That’s a huge step by the Texas Supreme Court,” said Fred Fuchs, the housing group coordinator for Texas RioGrande Legal Aid. “That’s going to be a big help in informing tenants.”
In Milwaukee, court commissioners and judges hearing eviction cases inform tenants about the moratorium and the need to file a declaration if they are eligible, said Mary Triggiano, Milwaukee County’s chief judge.
“At the least, we can tell people that there is public health policy that they could take advantage of” to stop the eviction action, Triggiano said. “I would guess there are probably more tenants that don’t know about it than do —including landlords.”
Milwaukee County sheriff ’s deputies will not carry out an eviction if a tenant has filed a declaration, said Ted Chisholm, chief of staff to Sheriff Earnell Lucas. Deputies will refer the parties to court “if a dispute exists between a landlord and tenant regarding a declaration,” Chisholm said.
The effectiveness of the moratorium is “contingent on a tenant knowing that these protections exist,” said Matt Mleczko, a research assistant at Princeton University’s Eviction Lab.
“We’re seeing a lot confusion nationwide in terms of implementing this moratorium,” Mleczko added.
The Eviction Lab was founded in 2017 by Matthew Desmond, author of “Evicted: Poverty and Profit in the American City.” Desmond wrote the Pulitzer Prize winning book after living in Milwaukee and studying the impacts of eviction in the city.
The CDC issued its moratorium order in response to the COVID-19 pandemic. The order states that “housing stability helps protect public health because homelessness increases the likelihood of individuals moving into congregate settings, such as homeless shelters, which then puts individuals at higher risk to COVID-19.”
The action bans evictions from Sept. 4 through the end of the year, provided a tenant gives their landlord a declaration stating they meet the criteria to be covered by the moratorium. Those who do not meet the income or other criteria can find themselves homeless if they fail to pay rent.
Tenants must state, under the threat of perjury, that:
They cannot pay their full rent due to a “substantial loss of household income, loss of compensable hours of work or wages, lay-offs, or extraordinary out-of-pocket medical expenses.”
They have used best efforts to obtain all available government rent assistance.
They expect to earn no more than $99,000 this year or $198,000 if they file a joint income tax return.
They are “using best efforts” to make partial rent payments.
They would likely become homeless, move into a shelter or “into a new residence shared by other people who live in close quarters” if they were evicted
Some of the criteria in the order are open to interpretation and may be confusing — especially to tenants who generally are not consulting lawyers.
To clear up the confusion, Legal Action of Wisconsin and Wisconsin Judicare this week asked the state Supreme Court to issue an emergency order that would require judges and court commissioners to tell defendants in eviction cases about the moratorium, inquire whether the tenants are covered by it and to provide them with a copy of the declaration.
“Savvy tenants will know of the order, be able to print the declaration, and submit it to their landlord. Many tenants will not,” Chris Donahoe, Legal Action housing priority coordinator wrote in the the request for the order.
Many tenants in eviction court are “pro-se” litigants, meaning they are representing themselves.
“Pro-se litigants, who are disproportionately low-income and people of color, find themselves in a confusing and complex world, trying to protect themselves and their interests at a time when it has never been more difficult to navigate the court systems,” Donahoe wrote.
Heiner Giese, legal counsel for the Apartment Association of Southeastern Wisconsin, said in an email that he agreed that the court “needs to issue guidance on how evictions should be processed in light of the CDC Order.”
But, he added, “the high court must instruct local courts that landlords are entitled to challenge any CDC tenant declaration if the tenant does not respond to a landlord’s request for partial payment of rent.”
Giese said that while tenants are required to make a best effort attempt to pay partial rent “most tenants are simply submitting the declaration to their landlords and not offering to pay anything.”
Tenants are still responsible for the rent payments, as well any late fees, during the moratorium on evictions.
Many housing and legal experts are nervous about what will happen in January when when landlords will be able to again file eviction actions against tenants who have not been paying their rent.
“Delaying a tenant’s eviction for five months and having a landlord fail in the interim does not help anyone and it certainly does not stop a housing crisis,” Tristan Pettit, a landlord’s attorney wrote in his blog about landlord-tenant law.
Judge Triggiano called the moratorium “a bandage.”
Some fear a wave of evictions will be filed when the moratorium ends unless governmental agencies provide additional rent assistance. Currently the state, city and county are funding rent assistance programs that are being distributed by various agencies including Community Advocates and the Social Development Commission.
Combined, the governments are providing more than $40 million in assistance, though social service officials are already warning it will not be enough if the unemployment rate remains high and the economy continues to limp along.
“I am definitely worried that come January a lot of people are going to reach a cliff where they may have to fall off it and be evicted if they haven’t found some financial resources,” said Raphael Ramos, head of Legal Action’s Eviction Defense Project.
Ramos noted that many of the eviction cases filed in Milwaukee are being adjourned until January. He said tenants who are facing eviction should take advantage of the delay,
“During that window,” Ramos said “people should try to find financial assistance or to relocate.”
To apply for rent assistance in the Milwaukee area, contact either Community Advocates at renthelp@communityadvocates.net or (414) 270-4646 or the Social Development Commission at www.cr-sdc.org .
“I am definitely worried that come January a lot of people are going to reach a cliff where they may have to fall off it and be evicted if they haven’t found some financial resources.”
Raphael Ramos Head of Legal Action’s Eviction Defense Project