The United States continues to face a threat of mass evictions, as has persisted throughout the coronavirus pandemic. The Census Bureau estimates that about 8 million renter households (18.6%) are behind on rent and that about 3.5 million are likely to be evicted within the next two months. That’s four times as many as would typically occur nationwide throughout an entire calendar year. With its recent ruling to effectively invalidate the Centers for Disease Control and Prevention’s national eviction halt order, the Supreme Court has thrown wide the gate holding many of those evictions at bay. Many state courts had stopped minding that gate well before the Supreme Court’s ruling, however — or even kicked it part of the way open themselves. Eviction proceedings in most U.S. states are brutal relics of feudalism, where “justice” somehow usually means putting individuals and families on the curb, often without cause and on very short notice.
From its September 2020 inception, the CDC eviction halt was difficult for tenants to understand, whittled down by agency guidance and unfavorable court decisions, and even ignored altogether by some local courts. By early 2021, cynical workarounds and judicial recalcitrance had rendered the eviction halt functionally inoperative in many local courtrooms. Some judges seized on the order’s application to nonpayment of rent cases to rule that evictions could proceed just as long as the landlord tautologically claimed the reason for eviction was “no cause” or “lease expiration” rather than rent arrearage. Still others ruled that tenants could be evicted for the “contractual violation” of not moving out as provided in an eviction notice or lease.
Many courts that superficially recognized the CDC order quietly undermined its protection in subtler, more obscure ways. For example, most states don’t allow landlords to file eviction cases until after a tenant has remained past the deadline to vacate; the whole point of an eviction case is to determine who is entitled to possession at the time of the case. Yet many courts nevertheless allowed landlords to bring eviction lawsuits, irrespective of the tenant’s right to remain under the CDC order. This forced tenants into a Hobson’s choice: invoke the CDC order’s protection and acquire an eviction case record that would seriously damage their housing opportunities long-term, regardless of the outcome — or forgo the protection and just move out.
Many courts even entered head-spinning judgments against tenants who remained, declaring the landlord entitled to possession, while simultaneously staying the physical eviction because of the tenant’s right to possession: These contradictory rulings effectively teed up physical evictions writs to be carried out instantly, once the CDC order was dissolved. With such widespread judicial subversion, large numbers of tenants were already evicted even as the halt order technically remained in place.
The CDC halt order may have been a rickety saloon door, but alongside the economy’s recovery, a patchwork of other state and local eviction restrictions, relief funds and other income supports, it still worked well enough to at least scale down the mass eviction threat. Experts had warned last year that we could face between 19 and 23 million evictions, affecting up to 40 million people (or roughly half of U.S. renters). For the Supreme Court to finally pull it down from its hinges in an unsigned, legally indefensible “shadow docket” opinion in the midst of delta remains tragic — but hardly unexpected. Evicting tenants is what eviction courts are there for.
Indeed, most eviction courts of today are little different from those governments of antiquity first crafted as a means of placating landowners who traditionally expelled unwanted tenants through extrajudicial violence. Designed to be so fast, inexpensive and unbalanced that landlords would readily accept them in place of “self-help,” many eviction courts are accustomed to hearing and disposing of cases within mere seconds. Few jurisdictions require any good cause to evict a tenant, and fewer still recognize any defense for nonpayment of rent. Formal discovery is rare, and the timelines are so short that tenants often cannot obtain documents or gather evidence informally. Most landlords have lawyers; almost all tenants do not. Some states don’t even provide actual judges to hear evictions, but instead allow “justices of the peace” or similar officials with limited powers and often no legal training to cast tenants out of their homes. And if the court makes a mistake, filing an appeal often requires a cost-prohibitive bond.
Modernizing eviction courts is an important step that state and local governments could take to address these inequities. Ejecting a family from their home is a serious matter, and tenants contesting evictions should have basic discovery rights, a reasonable amount of time to prepare, legal representation and a meaningful right to appeal. But it’s just the first step. And really, most eviction cases don’t even really belong in courts. Only a small portion of residential eviction cases involve genuine legal disputes: Most are simply products of tenant financial distress and lack of housing alternatives amid a merciless housing market.
Before being filed in court, cases should be diverted to programs that grapple with the fundamental economic reasons for tenants’ housing insecurity. Many evictions are filed for modest sums; one study, for example, found half the cases filed in Cincinnati last year were for less than $1,200. A one-time payment to stabilize a family’s housing will usually serve everyone’s interests better than halfhearted hearings on the wording of a “pay-or-quit” notice. Deploying assistance funds and adjacent social services to facilitate a tenant’s transition to more sustainable housing would meet the broader needs of the community far better than piling legal fees on top of judgments that treat rent default as a crime of moral turpitude.
Since December, Congress has appropriated more than $46 billion in rent relief — enough to cover all or substantially all of the estimated U.S. pandemic rent shortfall — but 89% of those funds remained unspent through July. Much of this delay has occurred because few localities had rental assistance programs before COVID-19 and needed to build the infrastructure for taking relief applications, qualifying tenants and disbursing payments utterly from scratch. But now that those mechanisms have been created, we could keep them, and make federal rental assistance a permanent piece of the housing stability picture.
In the meantime, state and local governments should impose their own eviction restrictions to keep tenants housed at least until the current relief funds are able to be distributed, lest millions more tenant families join the ranks of those already living doubled-up with family or friends, in shelters or hotels, or vehicles or tents … or unsheltered. A grossly disproportionate share of those evictions will turn out Black women and children, driving cyclical disadvantage and residential segregation as rental debts and eviction records trap them in diminished opportunity. Studies have shown eviction moratoria reduced COVID-19 infections and prevented at least 10,000 deaths, and estimate that a full and proper eviction moratorium could have reduced U.S. COVID-19 deaths by more than 40%.
Pandemic mass evictions is not a fate from which eviction courts designed in the 12th century to serve feudal lords will deliver us. We face a modern problem that demands a sophisticated and evenhanded solution.