We need to keep people housed while also getting landlords paid. ERA funds need to be distributed.
On Aug. 26, the Supreme Court struck down the most recent iteration of the CDC’s eviction moratorium designed to prevent mass displacement of economically vulnerable renters during the pandemic.
The CDC’s eviction moratorium was always a temporary measure to keep people housed during the pandemic. As COVID-19 raged in the summer of 2020, drastically reduced household incomes threatened mass displacement of tenants unable to pay their rent. Widespread displacement would have been devastating to individuals and community health.
The original CDC moratorium expired July 31 after being extended four times. Although the Supreme Court announced in June that further extensions would be unconstitutional, Congress refused to pass legislation addressing tenant inability to pay rent before recessing for August. On Aug. 3, the Biden administration announced a slightly more narrowly tailored eviction moratorium that would keep people housed in areas significantly impacted by the delta variant while still complying with the Constitution. According to the Supreme Court, that effort failed.
The CDC’s eviction ban was the best available tool to save lives — and it did save lives. We have data to prove it. But the moratorium delayed — rather than avoided — evictions. If the unpaid rent isn’t paid back, tenants cannot stay housed. Predictably, the longer tenants delay paying rent, the harder it is for them to pay rents owed. Unpaid rent leaves tenants vulnerable to displacement.
Landlords chafe under the economic strain caused by tenants unable (or unwilling) to pay rent. Landlord groups were those who spearheaded the legal attack on the moratorium’s constitutionality.
From September 2020 to date, the eviction ban kept people housed (eviction levels are at half of their pre-pandemic levels), but relying exclusively on an eviction ban was always an extend-and-pretend strategy.
Focusing on the question of the moratorium’s legality has long obscured the pressing imperative of getting rental arrearages paid ASAP. The money to do this is available — it just needs to be distributed. To do this, we need more time, and we need more cooperation. In the wake of the Supreme Court’s most recent pronouncement, it is up to states, localities, and individual landlords and tenants to achieve what CDC pronouncements have failed to do: Keep people housed while getting the rent paid.
Congress has allocated approximately $50 billion for emergency rental assistance and utility arrearages. Distribution of ERA funds will give landlords and tenants what they need. Landlords can receive expected rental income; tenants can stay in their homes. But most of this money has still not been distributed. In most states, local housing authorities distributing the ERA funds have only been able to pay out a small percentage of the allocated amount (in most states, less than 10%).
There are two main obstacles to distributing these funds.
One, there must be more time. Prior to 2020, local housing authorities had no system in place to distribute emergency rental assistance to private landlords, so each housing authority had to create a distribution program from the ground up. They had to establish effective outreach and education and efficient applications and processing systems. * Distribution infrastructure was put in place just as the prior moratorium’s protections expired in July. The CDC’s new moratorium enacted Aug. 3 attempted to buy another 60 days of time for the infrastructure to do the work distributing the funds, but the Supreme Court’s ruling brought that extension to an abrupt close. Housing authorities are racing against the clock — and against the court docket – to distribute funds to reimburse landlords and keep tenants housed.
Two, landlords and tenants must cooperate. The pandemic-era housing crisis is neither landlords’ nor tenants’ fault. Both parties are victims of circumstance. Both suffered from the economic downturn. And both benefit from rental assistance funding. Both parties should work together to determine the amount of assistance necessary and apply for that amount. Inexplicably, some landlords have refused available ERA funds, but pursuant to new U.S. Treasury guidance, housing authorities can distribute funds to tenants directly if the landlord objects. Distribution requires tenant cooperation as well, however, and there is no way for ERA funds to be distributed without tenant participation. Numerous tenants appear to be unaware or misinformed regarding the availability and necessity of emergency rental assistance. Perhaps they did not understand that they still owe unpaid rent, and that the eviction moratorium would not last forever. Perhaps they were distracted by media focus on the moratorium. Maybe they do not realize that they can get emergency rental assistance — if they only ask for it.
Nondistribution of needed ERA funds and a rush to eviction hurts everyone. Landlords lose property income and tenants lose their homes. And the public faces excessive residential displacement. Advocates debate whether keeping people housed is more important than making landlords whole, but we have the money to do both. Why not both? We must focus on cooperating to distribute ERA funds and stop playing a blame game. Until rental arrearages are paid, landlords struggle without needed property revenue and tenants remain vulnerable to impending eviction. The CDC’s eviction moratorium is no longer there to mask the problem of pandemic-caused unpaid housing costs, but that problem does have a solution. Landlords and tenants must cooperate to get the rent paid, and governments and courts need to buy local authorities should keep people housed in the interim. If people are displaced while ERA funds remain undistributed, everyone loses.
* For example, the Kansas Housing Resources Coalition (KHRC) created and implemented the Kansas Emergency Rental Assistance (KERA) program, training some 75 newly-hired staff, and partnering with advocates like Kansas Legal Services. After the initial ramp-up, KHRC hit their stride by early summer 2021. They have worked through their backlog and now can process completed applications within 7-10 days.