Advocates hammer Biden over landlords defying eviction ban

President Biden is coming under fire from housing advocates who say his administration is turning a blind eye as landlords seek to boot tens of thousands of cash-strapped renters from their homes despite a nationwide eviction freeze.

Tenant rights groups say the Department of Justice (DOJ) has yet to file a single criminal charge for violations of the Centers for Disease Control and Prevention (CDC) eviction moratorium, which carries penalties of up to $200,000 and a year in jail.

“I think it would be helpful if they prosecuted landlords who are violating the law,” said Isaac Sturgill, an attorney at Legal Aid of North Carolina. “From my knowledge, DOJ hasn’t been enforcing the order. It does make it look more like a paper tiger.”

Enacted in September as a public health measure, the CDC order aims to mitigate the spread of coronavirus by helping financially distressed tenants remain in their homes, instead of forcing them into homeless shelters or other crowded living spaces.

Since then, however, the federal eviction protections have steadily eroded. A catchphrase has even emerged among some tenants’ advocates to sum up the current beleaguered state of the CDC moratorium: “It’s better than nothing.”

“It’s getting weaker as time goes on,” Sturgill said. “People are figuring out more and more ways around it, and landlords are getting more and more emboldened to ignore it.”

Housing advocates say three developments have primarily undercut the protections: Trump-era guidance that put a thumb on the scale for landlords, a slew of lawsuits against the moratorium and efforts by pro-landlord attorneys to exploit legal loopholes.

But advocates also say the eviction ban could be bolstered if only the Biden administration would take action, both to make an example of repeat offenders and deter would-be violators.

“I think it’d be important to see DOJ bring suits against especially big actors who are repeatedly violating the moratorium,” said Sarah Saadian, vice president of public policy at the National Low Income Housing Coalition. “If there is no enforcement, landlords can continue to violate the moratorium without any real consequences.” 

Sources told The Hill that federal prosecutors in Texas and North Carolina have sought input from DOJ headquarters on how to respond to eviction proceedings, but it’s unclear what guidance if any was provided.

DOJ declined to comment on its enforcement of suspected eviction ban violations.

Advocates say the lack of federal leadership is partly to blame for the legal patchwork that has emerged across the country as state courts apply the CDC order unevenly, allowing many landlords to sidestep the protections.

“There aren’t real consequences for whatever shady behavior you might engage in in trying to evade the moratorium,” said Shamus Roller, director of the National Housing Law Project. “The way it’s playing out, the government needs to defend the laws it’s created and the orders it’s signed to create uniformity in how this is working across the country.” 

Reports from media outlets and tenants’ rights groups reveal instances where judges in Georgia, Missouri, North Carolina, Ohio, Tennessee and other states have either diverged from the eviction moratorium in favor of landlords, or disregarded the protections completely. In Texas, a judicial advisory panel has explicitly given a green light to state courts to ignore the moratorium.

Private equity firms and other major corporate housing groups have filed more than 56,000 eviction actions since the eviction pause took effect last September, with almost half of those filed by landlords just this year, according to a study by the Private Equity Stakeholder Project of seven states.

“The data we found only scratches the surface of eviction filings that are happening,” said Jim Baker, the group’s executive director. “We know definitely some of the cases have moved forward to eviction. We know some cases have been dismissed, and many are ongoing.”

Those notices, which don’t always lead to evictions, are being sent even as billions in rental assistance authorized by Congress continues to make its way from Washington to tenants in need of aid. Experts say there is no nationwide data tracking how many notices have led to evictions during the freeze.

“It’s really hard when we have a crisis like this when we don’t have that underlying data,” said Saadian. “All of us are just piecing together what we can from stakeholders on the ground.”

As landlords and tenants have faced off in state courts, federal courts have seen a number of constitutional challenges filed against the Biden administration. DOJ’s response to these suits has been vigorous, although their win-loss record is about 50-50.

But where DOJ’s defense of the eviction ban’s constitutionality has been robust, its crackdown on landlords has been virtually nonexistent.

Without a strong federal ally, many renters have been left to fend for themselves, advocates say.

Faced with eviction actions, some tenants — even those eligible for federal eviction protections — simply vacate their homes, rather than mount an often costly legal defense. Others are simply not aware that federal protections exist.

Advocates say that landlords’ attorneys have also gotten better at exploiting legal loopholes. Common maneuvers include cloaking eviction proceedings as different types of legal actions to get around the moratorium, or challenging the credibility of a tenant’s sworn declaration that attests to their financial hardship.

Some state courts have enabled these sorts of tactics, said Roller of the National Housing Law Project. Rather than shut down eviction proceedings when a tenant claims financial hardship, some judges have allowed landlords to scrutinize the details of a tenant’s declaration form.

The CDC declaration asks renters to certify they would face homelessness or overcrowded conditions if evicted, and asks if they’d made partial rent payments to the best of their ability. In some eviction proceedings, lawyers have been permitted to essentially cross-examine tenants about their answers.

“Well, what does ‘best of my ability’ mean? What if I can’t pay utilities or get books for kids at school?” Roller said. “‘She paid $100 but I think she could have paid $200.’ It’s just mind numbing. It’s just ways for landlords to exploit the system to try to kick people out who are barely making it.”

Tenant rights groups say their disappointment in the Biden administration goes beyond the DOJ’s lack of enforcement. Some groups also fault the administration for failing to issue new guidance through the CDC or Department of Health and Human Services that could help judges apply the eviction freeze in a more uniform way.

In the absence of DOJ action, the Consumer Financial Protection Bureau (CFPB) and the Federal Trade Commission late last month launched their own effort, vowing that “both agencies will be monitoring and investigating eviction practices.”

But it’s unclear that it’s resulted in any enforcement.

“We are looking carefully at evictions practices and complaints we receive and will take action as appropriate to protect tenants from illegal conduct,” a CFPB spokesperson told The Hill by email without providing further details on any progress.

Sandra Park, an attorney with the American Civil Liberties Union, said that though DOJ has issued some general statements about how judges should apply the order, more clarity is needed.

“I do think more targeted communication with courts that we know are problematic is something that should be done,” she said.

But part of the issue, she added, is that it’s not clear which section within DOJ should be leading the charge.

“As far as I know, nobody’s really claimed that role,” she said.