Federal eviction order prompts calls for further state action

Earlier this week, when the U.S. Centers for Disease Control and Prevention announced a moratorium on evictions across the country until the end of this year, the move raised some eyebrows. Who would have thought that the Trump administration would be taking bolder action on protecting tenants than the progressive bastion of New York, where residential renters currently are only protected from evictions until Oct. 1.

But digging into the CDC’s order reveals that the federal moratorium is not as far-reaching and will likely leave many renters at risk of being evicted. Tenant activists and some state lawmakers say there’s still much more for the state to do to avoid a disaster scenario next month. 

Released on Tuesday, the CDC’s order says that through Dec. 31, 2020, residential tenants cannot be evicted for being unable to pay rent. It doesn’t include any kind of rent forgiveness, meaning that tenants will eventually still have to pay all missed rent payments. That threat has been hanging over not only tenants in New York, but across the country, where some states and local jurisdictions without eviction moratoriums have continued to put people suffering from job loss, insufficient income or health problems out on the street even in the middle of the pandemic. The federal order does not supersede any state or local guidance, meaning a state with stricter rules against evictions can still enforce their own policies.

But despite the little bit of breathing room that the federal order provides, tenant advocates say it leaves out a large swath of people. The order doesn’t apply to renters who face holdover evictions – which is essentially when a landlord kicks a tenant out for reasons other than not paying rent, such as when a lease expires or when a tenant violates the terms of their lease. It would also only apply to people below a certain income level – individuals making up to $99,000 or joint filers making up to $198,000 in 2020 – or people who received federal stimulus checks. 

Notably – and apparently the reason that the order comes from the CDC – the impetus for the moratorium is not the financial hardship caused by the pandemic but the fact that housing stability increases people’s ability to quarantine or self-isolate, and that eviction and homelessness poses a public health risk. 

State Sen. Zellnor Myrie, who represents parts of Central Brooklyn and who has been a vocal advocate for rent relief during the coronavirus pandemic, suggested that the CDC’s eviction moratorium order has more to do with the upcoming election than with protecting tenants facing eviction. “It's hard to not view this as an attempt to win votes by an administration that thus far has advanced policy after policy to hurt working families,” Myrie wrote in an emailed comment. “But even if just an electoral ploy, it is a clear recognition that the eviction crisis is of national import and requires bold, universal action.” 

However, Myrie joined housing activists in calling the federal order inadequate because it only applies to some renters and because it doesn’t last the length of the pandemic. There are other shortcomings beyond its limited scope. “One of the main problems with this is not only does it not apply to everyone, it requires the tenant to take an affirmative step with their landlord,” said Judith Goldiner, attorney-in-charge of the Civil Law Reform Unit at The Legal Aid Society. The federal order requires tenants to sign a declaration to their landlord affirming that they have used all best efforts at obtaining government assistance for rent or housing, that they have faced substantial loss of income or work, that they are making best efforts to pay partial rent and that eviction would render the person homeless or force them to live in close quarters with others. Putting the onus on tenants to prove to their landlords that they qualify is problematic, in part because most tenants don’t have lawyers. “A moratorium that just says that landlords can’t evict and the marshals can’t evict is much better because the tenant doesn’t have to enforce it,” Goldiner said.

While the federal order lasts longer than New York’s, it could leave out many people, including homeowners who cannot afford their mortgage, or small landlords who cannot keep up with their bills if their tenants aren’t paying rent. “It asks renters to attest to facts that will almost certainly be litigated by landlords and those same tenants just as certainly will not have lawyers to fight their case,” Myrie said. “It provides zero protection for homeowners, small property owners, or commercial tenants.”

That is effectively how New York’s current pause on evictions – a sometimes confusing patchwork of state court guidance and state law – is working. Guidance issued by the state court system confirms that residential evictions cannot be executed until Oct. 1 at the earliest. A tenant does not have to prove anything to benefit from that pause. That guidance is in addition to the Tenant Safe Harbor Act, a state law passed earlier this year which says that any residential tenant who can prove they faced a financial hardship during the pandemic can’t be evicted for nonpayment of rent accrued since March 7 until all pandemic-related restrictions are lifted. Gov. Andrew Cuomo also recently extended a moratorium on commercial evictions and foreclosures related to the pandemic until Sep. 20.

Landlords have come out against the federal order, pointing out that kicking the can down the road doesn’t help landlords either. “Tenants who haven’t had the rent money for five months are not going to come up with nine months of rent in December,” Joseph Strasburg, president of the Rent Stabilization Association, a trade association that represents landlords in New York City, told The Real Deal. Some landlord groups have called for the state or federal government to create rent voucher programs that would provide temporary subsidies to tenants who can’t make rent – a move that would result in landlords still getting some revenue. 

Progressives want the state to take action that would not only extend a moratorium on all evictions until the end of the pandemic, but also create rent forgiveness for tenants – something that neither the federal order nor state rules currently does. Several bills in the state Legislature address these issues, including one sponsored by Myrie that would prevent evictions from being executed through the duration of the pandemic, and for one year after, but which would not in itself cancel rent. Myrie’s bill would not require tenants to prove loss of income from the pandemic. Another bill sponsored by state Sen. Julia Salazar and Assembly Member Yuh-Line Niou – and cosponsored by Myrie – would cancel rent for residential tenants and suspend mortgage payments for small homeowners, and create a fund for small landlords, co-ops and affordable housing providers to apply for relief. Both bills apply universally and don’t require tenants to demonstrate a loss of income. The latter bill does not require tenants to prove financial hardship either. 

The immediate priority for some tenant advocates, however, is creating an ongoing moratorium on evictions, as Myrie’s bill would do. Michael McKee, treasurer at Tenants PAC, a pro-tenants political action committee said that because of all the tenants not covered by the federal order, many in New York will still be at risk of eviction this fall if the state does not extend a moratorium on evictions. “We’re literally facing a tragedy beginning October 1st if Albany does not act,” McKee said.

With the state court system saying that it would no longer keep extending the residential eviction moratorium past Oct. 1, it’s up to the state Legislature or Cuomo to act. “In the progressive capital of the nation, we should be able to enact a true moratorium that provides protection for renters, homeowners, and commercial tenants all over this state,” Myrie said. Representatives for Cuomo did not respond to a request for comment.

But even though housing activists called the federal order deeply flawed, some, like Cea Weaver, campaign coordinator at the tenant group coalition Housing Justice for All, drew attention to the irony of the Trump administration issuing a sweeping eviction order while New York has yet to extend its own eviction moratorium. “New York is the progressive capital of the country or whatever, and Trump is saying bolder things about eviction defense than Cuomo,” Weaver said.