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States Challenge Eviction Laws and Policies

Eviction Laws and Policies
December 2017

The eviction process has long since been a focus of tenants’ rights activists and state and local policymakers. It has witnessed renewed fervor following the release of Matthew Desmond’s book, “Evicted: Poverty and Profit in the American City.” As Desmond continues a tour to promote his work, NAA expects the issue of evictions to remain a priority in many local jurisdictions around the country and strives to work with affiliates as they engage in the discussion.

In light of the recent activity on this issue, NAA has collected examples of the resulting challenges to current eviction laws and policies that allow owners to screen residents.

According to Desmond, there could be disparate impact implications from evictions, having a disproportionate negative impact on protected individuals under the federal Fair Housing Act. The American Civil Liberties Union (ACLU) of Washington emphasized this point, even citing Desmond, in their complaint against a property owner in federal court earlier this year. The ACLU’s case is the first to challenge apartment owners’ screening policies related to evictions. The ACLU argues that an owner should not have the ability to deny housing indiscriminately based on any prior eviction proceedings of the resident. The ACLU takes issue with the idea that owners can deny housing based on filings or proceedings that did not result in a judgment favorable to the owner.

In an ACLU press release, Sandra Park, Senior Attorney with the ACLU Women’s Rights Project said, “These unjust screening policies mean that doors are slammed shut for families based on a prior landlord’s decision to file an eviction case, not the applicant’s own actions. Qualified tenants should not be blacklisted because of an eviction case that lacked merit or is several years old.”

While the case recently settled, the Washington Multi-Family Housing Association (WMFHA) continues to monitor the situation. The ACLU continues to look for another such case, ultimately with the goal of setting legal precedent on this issue.

New York
In August, New York City became the first market in the country to guarantee legal representation to renters in housing court. The law was signed by Mayor Bill de Blasio to support any low-income resident (those whose income is 200 percent of the federal poverty level or less) who is facing eviction. According to CityLab, renters’ rights advocates believe legal counsel could help residents navigate the legal system, negotiating to keep the eviction off the resident’s record, or assist in finding alternative housing.

In addition to the above, the New York City Council is considering a pending bill that would put the onus on tenant screening companies to obtain so much information about a housing court case as to make it impossible to report the data. The bill is likely to die in committee during the session ending in December.

NAA affiliate, Associated Builders and Owners of Greater New York, Inc. (ABO), raised concerns about both pieces of legislation. During the screening process, ABO argues that the prospective resident always has the ability to get out in front of a potential issue by explaining to the owner if applicant feels he or she was in the right or that there were extenuating circumstances. The association continues to monitor the Council’s work on multifamily housing issues.

New Jersey
In August, U.S. Senator Cory Booker (D-NJ) introduced S.1758, the Tenant Protection Act. Similar to the lawsuit in the state of Washington, the Senator is concerned about reported “blacklisting” of applicants. The legislation amends the Fair Credit Reporting Act (FCRA) to enact more stringent regulations on reporting agencies and would impact screening companies’ access to resident information.

Specifically, the legislation does the following:

  • Prohibits consumer reports from including information from a landlord-tenant court or other housing court record unless the case to which the record pertains resulted in a judgment of possession in favor of the landlord.
  • Requires any person who takes an adverse action with respect to a consumer report to provide the consumer with a free copy of the report.
  • Allows the consumer to seek damages against a person for creating reports with inaccurate housing court records.
  • Requires the Consumer Financial Protection-centralized clearinghouse though which consumer may annually obtain a copy of their report from each “tenant rating agency” (a nationwide specialty consumer reporting agency as defined by FCRA) free of charge and correct any inaccuracies.
  • Requires the CFPB to con duct a study and submit to Congress a report on tenant rating agencies and their compliance under FCRA.

In addition to the federal bill, state-level legislation remains pending in New Jersey that mirrors many of the provisions of Senator Booker’s legislation. New Jersey bill S-3037, is sponsored by state Senators Codey and Rice (D-Essex).

The New Jersey Apartment Association (NJAA) has an ongoing dialogue with Senator Booker on this issue. Additionally, NAA and NMHC met with Senator’s staff in D.C. to support NJAA’s efforts. Senator Booker remains committed to the issue and is slated to participate in a public policy forum with Matthew Desmond this year.

In 2016, Desmond served as keynote speaker for a housing awareness meeting in Denver that was hosted by tenants’ rights groups. During the meeting, the group outlined 28 possible legislative proposals that would be unfavorable to the industry, including eviction law revisions.

Tenant activists in Denver continue to challenge local policy on this issue. In September of this year, advocacy groups aggressively targeted attorneys who handle evictions in the city, as part of Renters’ Week of Action. In addition to a planned protest at the offices of one particular firm, the advocates sent this letter, claiming that in 2016, 45,000 evictions were filed in Colorado, and while many owners have legal representation in eviction cases, few residents do. They argue that given its work, the firm should support Denver’s proposal for a tenants’ legal defense fund.

The protests coincide with the release of a study by the Colorado Coalition for the Homeless and the Colorado Center on Law and Policy, titled, Facing Eviction Alone. The study’s findings form the basis for the arguments made by Denver’s advocates and mirror Desmond’s disparate impact claims. The report states that, “Physical addresses of defendants suggest that evictions disproportionately affect neighborhoods with more people of color and areas of rapid growth and gentrification.”

The Colorado Apartment Association and Apartment Association of Metro Denver are actively engaged in the issue.

North Carolina
In Charlotte, Desmond discussed Evicted before a crowd of 700 on Sept. 27 as part of an event sponsored by a broad cross section of community groups, including the Greater Charlotte Apartment Association (GCAA). There is active local discussion and research taking place around the problem of a lack of economic mobility in Charlotte, and the event was in high demand.

Desmond’s presentation focused on his research and referenced several passages from his book, including his idea that evictions have a disproportionate impact of on certain populations. One key takeaway from Desmond’s remarks was his finding that only 25 percent of households who are eligible for housing subsidy receive it, because of a chronic underfunding of subsidy programs. He called for much more public money to be devoted to voucher programs.

A panel discussion following Desmond’s talk featured local stakeholders who spoke about evictions and homelessness in Charlotte. The panel included long-time GCAA leader and member of the NAA Board of Directors Scott Wilkerson, Chief Investment Officer at Gingko Residential. Gingko focuses on workforce housing, specifically for those earning between 60 percent and 80 percent of area median income. Gingko’s units have an average rent of $827.

“If our residents don’t pay our rent, it’s the landlord that doesn’t get paid that month,” he said. “The city still wants taxes, we’ve got to pay insurance, payroll — a simple fast eviction in North Carolina and Charlotte takes about two months. The landlord then loses about two months’ rent." Other panelists included representatives from Legal Aid – covering the eviction court processes and lack of counsel for lessees - and the Salvation Army who suggested widespread reluctance of landlords to accept households with evictions, including those with portable vouchers.

GCAA is now working with community leaders to process the implications of Desmond’s talk. The University of North Carolina at Charlotte has authored two related in-depth pieces (with a third one expected shortly) about the process and implications of evictions, including Charlotte-Mecklenburg Part 1: An Introduction to Evictions in Charlotte-Mecklenburg. One immediate result of the Desmond talk is a call for better lessee education on legal rights and responsibilities through a partnership between Legal Aid and Crisis Assistance Ministry. Other strategies include decreasing the impact of evictions on lessees, better case management, and affordable housing/better income opportunities.

In September, Philadelphia Mayor Jim Kenney signed an executive order establishing a task force to address what the city views as an “evictions crisis.” The group includes 27 members who are appointed by the Mayor and have experience in housing, landlord-tenant matters, legal services and other related fields.

The group is tasked with:

  • Developing a clear understanding of the Philadelphia eviction landscape, including who is impacted by evictions, documenting the eviction process, and current services and policies.
  • Determining best practices, identifying gaps, and supporting the development and implementation of a comprehensive plan to prevent evictions and reduce the deleterious effects of eviction in Philadelphia.
  • Identifying additional funding streams to support actions and activities recommended by the taskforce.
  • Producing a concise report of actionable recommendations for reducing eviction and other related findings.

The Mayor’s task force builds upon increased engagement by the City on this issue. Earlier in 2017, the City Council allocated $400,000 for an eviction defense fund for low income renters, while the Department of Planning and Development allocated an additional $100,000. For its part, last year the Pennsylvania Apartment Association East (PAA East) presented testimony during the Philadelphia City Council’s hearings, led by Councilmember Helen Gym, on the city’s evictions crisis.

“Eviction is a necessary last resort tool for rental owners to assure responsible and efficient property operations,” said PAA East, Government Affairs Director, Christine Young-Gertz. “The more difficult the evictions process becomes, the fewer apartments will be available. Rental owners will have to be increasingly more selective of residents in the screening process to avoid the financial hardship that inevitably results from restrictions on evictions.”

PAA East remains actively engaged. The association is currently collaborating with a coalition of real estate organizations in Philadelphia to address concerns with the Mayor’s task force.

Now What?
NAA expects the issue of evictions to remain a priority in many local jurisdictions around the country. Adding to the local coverage of the issue, Desmond is currently engaged in a cross-country tour to promote the work. The locations for his tour dates may be good indicators of where eviction policy may gain prominence next.

NAA continues to work with its affiliates as they engage in the discussion. To that end, NAA is developing several resources to assist with local advocacy efforts. Some of those are available now and linked below, including resources on crisis communications in the event of protests. Other resources will be added soon.

The following resources are available now:

  • Legal Assistance Program (Amicus/Friend of the Court Brief Program)
  • Industry Mobilization Fund (Member log-in required)
  • Crisis Communications – Addressing Protests and Protestors
  • Eviction-Specific Talking Points
  • General Affordability and Demand Talking Points

For more information, contact Nicole Upano, Senior Manager, Government Affairs at NAA