By Dick Hall-Sizemore
In his July 24 letter to the Chief Justice, the Governor requested the Supreme Court extend its moratorium on evictions. He concluded his request by saying, “This [the moratorium] will provide my administration the time to both work with the General Assembly to develop and pass a legislative package that will provide additional relief to those facing eviction and to expand financial assistance for tenants through our rent relief program.”
So, now that the General Assembly is in session, what has the Governor done for those who lost their jobs due to the pandemic and are facing eviction? The answer is: (1) some help in delaying evictions and (2) no help, so far, in getting the money needed to pay the rent.
Moratorium extension. A provision in the introduced budget bill (see here, page 241), would impose a moratorium on evictions for nonpayment of rent until April 30, 2021. If the tenant has experienced financial hardship due to the COVID-19 public health emergency, the landlord must provide the tenant an opportunity to enter into a payment plan in which the arrearages are amortized over 12 months, with no late fees. (If less than 12 months remain on the lease agreement, the back due amounts would be amortized over the remainder of the lease.) Furthermore, the landlord must cooperate in the tenant’s “efforts to secure rental assistance funds or other subsidies or benefits that could pay down or retire the COVID-19 arrearage.”
If the tenant does not comply with the terms of the payment plan, the landlord can proceed with eviction. If the tenant refuses to enter into a payment plan, the landlord could terminate the tenancy and take action to evict the tenant if the landlord (i) made a reasonable effort to enter into a payment plan and (ii) made reasonable efforts to “secure rental assistance funds or other subsidies or benefits that could pay down or retire the arrearage.”
The language goes on to say that the landlord is allowed to file unlawful detainer orders in court while the tenant is participating in a payment plan.
For a situation in which the tenant is working and just decides he does not want to pay his rent for a while, the language is not clear. The first paragraph flatly imposes a moratorium on evictions. Subsequent paragraphs seem to condition the eviction prohibition on financial hardship created by the pandemic. In any event, the language could provide freeloaders and deadbeats with extra time to stay in the rented space without ultimately paying.
Financial help. A temporary moratorium on eviction and a payment plan to spread out the back due amounts will be helpful to those folks who were laid off from their jobs temporarily, are now back working, and need some breathing room to catch up. Those provisions really do not help those who are still out of work, have seen their federal supplemental unemployment insurance benefit lapse, and cannot afford to make the current rent payment, much less begin to pay off the back due amounts. And the Governor has not proposed any additional help to these people, so far. Apparently, the administration is still trying to decide whether to participate in the President’s proffered plan for supplemental unemployment insurance. Another option would be to devote more federal CARES funding to its newly-launched Rent and Mortgage Relief Program.
In his recent address to the General Assembly, the Governor stated his introduced budget includes “$88 million to combat evictions and expand affordable housing.” That is misleading. There is $85 million designated for the Housing Trust Fund, which makes grants to entities to construct affordable housing and also provides support for homeless persons.
The attempt to use some of this funding to help those actually facing eviction is a mess. The 2019 General Assembly established an Eviction Prevention and Diversion Pilot program to be administered by local courts in four cities. That program just went into effect on July 1 of this year. Rather than wait to learn how that program works or even to build upon it, the Governor has proposed $3.3 million in the first year only to “establish a competitive Eviction Prevention and Diversion Pilot Program that will support local or regional eviction prevention and diversion programs that utilize a systems approach with linkages to local departments of social services and legal aid resources.” That program would be administered by the Department of Housing and Community Development.
First of all, such a bureaucratic program will probably end up providing only a relatively small amount of money for actual people facing eviction. Second, experience has shown that pilot programs that are funded only for one year are doomed to failure. Finally, the court-administered pilot eviction prevention and diversion program and, presumably, the one proposed by the Governor, rely on the establishment of payment plans. That is the approach taken in the Governor’s proposed moratorium. One wonders why the state would need both the moratorium and two different eviction prevention and diversion programs. That is a lot of redundancy and overlap.
Avenue not pursued. If the Governor’s goal were to decrease evictions, it would have been more effective for him to have spread that $3.3 million over both years to hire more lawyers to represent poor people facing eviction. In states and cities in which tenants were provided access to an attorney, evictions declined significantly. (See here and here.) A recent article in the Henrico Citizen, a community newspaper, demonstrated the value of an attorney in eviction proceedings. A pair of Legal Aid attorneys spoke up for a group of tenants from a local housing community who were on the eviction docket for that day. Because the housing community had utilized federal related financing, the CARES Act prohibited evictions. Apparently the judge was unaware of the CARES Act provisions. After hearing the lawyers and researching the law, he dismissed the cases.
The 2020 General Assembly provided an additional $1.5 million for each year of the biennium to hire more attorneys to add to those hired with a new appropriation in the 2019 budget Instead of following up on that approach, which would have provided direct help to folks facing evictions, the administration chose to take that money and go with an unproven program that promises to be comprised of significant bureaucracy, will take a long time to get up and running, and will likely prove to be of little value to people facing eviction.
I blame the Governor for depending too much on his policy office for these shortsighted proposals. That office is comprised of staff with little direct experience in state government and who are focused primarily on the political aspects of issues. They are loath to seek advice and recommendations from staff in agencies such as the Department of Planning and Budget, who are much closer to agency programs, understand how they operate, and know their history.
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