Courts ignoring COVID order on evictions

As an attorney defending lowincome families against evictions, my clients have lots of questions. Can my landlord lock me out? Do I have to pay rent even if I don’t have hot water? Didn’t the government cancel evictions?

The confusion is understandable. To answer these questions — and many others — you would need to read your lease, the Texas Property Code, the Texas

Rules of Civil Procedure and other laws and regulations. The experience can be overwhelming. My clients often tell me the system seems rigged and unfair. It’s difficult to disagree.

You may not be overly concerned about the fragility of housing for many of our neighbors. After all, the Biden administration, through the Centers for Disease Control and Prevention, has extended the moratorium issued by the Trump administration on residential evictions through March 31. The moratorium is a valuable tool to prevent homelessness for countless families and limit the spread of COVID-19 while the government develops an economic stimulus.

But the moratorium is only a stopgap and the situation remains dire. Renters account for 46 percent of households in San Antonio. Both unemployment and the coronavirus have surged in recent months.

Despite the moratorium, evictions haven’t stopped. In the 13 weeks following the original issuance of the moratorium, eviction filings in Bexar County dropped by less than 9 percent, according to the South Alamo Regional Alliance for the Homeless. The moratorium has failed to protect many families in San Antonio and across the country.

Why? First, protection is not automatic. A tenant must complete a declaration and submit it to the landlord and the court. Most tenants don’t know this procedure or even that the protection is available.

I have watched tenants explain in court that they have lost their jobs due to the pandemic, that they have been doing their best to pay rent and apply for government assistance, and that they have nowhere else to go. By any measure, they likely qualify for eviction protection. But the CDC order is never mentioned, and the tenant is evicted anyway.

In one recent case I observed, a tenant who lost income during the pandemic sent her landlord an email explaining she would like to invoke the CDC order’s protection. She sent a link to the declaration. The landlord’s attorney argued the tenant did not qualify for protection because she failed to sign the form — and the justice of the peace ordered the tenant evicted. The tenant explained she would have to live out of her car. The court simply wished her luck.

As is too often the case, a lack of knowledge of their rights prevents people from exercising them.

Second, landlords and the courts are finding legally dubious ways of evading the moratorium. Since the moratorium only covers evictions based on nonpayment of rent, some landlords resort to surveilling and nitpicking their tenants’ behavior to allege lease violations. These can include unauthorized patio furniture or walking a dog from the parking lot into the apartment without a leash.

Third, practitioners and researchers across the country have consistently found that informal evictions, involving no legal process whatsoever, are at least twice as common as evictions processed by courts. In Texas, it is illegal to conduct a “self-help” eviction, in which a landlord forcibly removes or locks out a tenant without legal process. But if the tenant doesn’t know it’s illegal or doesn’t have the time or resources to fight it, the tenant will be wrongfully evicted.

To survive this crisis, renters and landlords alike need support. Robust government assistance, more affordable housing, foreclosure protection and a living wage are all necessary. Our city, spurred by community activists, has taken some vital first steps, including developing the Emergency Housing Assistance Program.

Our justices of the peace, elected to serve the people of Bexar County, should not proceed with an eviction if the tenant meets the CDC order requirements. The Texas Supreme Court has given express authority to justices of the peace to ask tenants whether they are aware of the protection and have had an opportunity to complete the declaration. At a minimum, justices of the peace, who have broad discretion in these cases, should reset the hearing to allow the tenant to learn about the order and sign the form.

Landlords and their attorneys should not take advantage of tenants who qualify but don’t know how to access the eviction protection. Everyone, from landlords and the courts to our local elected officials, must do their part to educate renters about their rights and make the process fairer.