D.C. has the strongest tenant protections related to evictions in the region, surpassing even the federal eviction ban, but some local landlords are trying to get lawmakers to water them down.
The current ban on all evictions is the only law standing in the way of mass displacement and homelessness, tenants and their advocates warn. Should it be lifted, those most impacted will be poorer residents who are disproportionately Black and Brown. According to Urban Institute’s review of Census data from May and June 2020, 1 in 4 renters of color in D.C. deferred or missed paying rent. By the city’s own admission, rental assistance is not reaching enough people.
“These programs are undersubscribed at this point,” Polly Donaldson, the director of the Department of Housing and Community Development, said at a recent Council roundtable on evictions. “We anticipated a higher demand.” Donaldson theorizes that the moratorium reduced tenants’ sense of urgency for needing to apply for rental assistance, and questions whether tenants know about all their options. Anecdotal evidence also suggests that the application process for rent relief can be cumbersome, particularly for an individual juggling hardships. Some tenants might delay applying for D.C.’s Emergency Rental Assistance Program because residents can only apply once every 12 months and they anticipate their situations getting much worse as the public health emergency continues.
D.C.’s blanket moratorium on evictions is set to expire Oct. 9, when the mayor’s public health emergency ends. With the coronavirus pandemic still plaguing the city, Mayor Muriel Bowser is working with the Council to extend the emergency once again. Tenants and their advocates expect the Council to also extend most, if not all, the protections tied to the mayor’s order, including the ban on all eviction executions and case filings. Ultimately, they hope lawmakers will expand protections as well. Meanwhile, landlords are trying to convince lawmakers to tweak current emergency legislation. Their issue? They want to be able to remove someone from their property immediately if the eviction is not directly related to the pandemic.
“Although well intended, I think the law as written is overreaching,” said Richard Bianco, an attorney who represents the real estate industry.
Bianco spoke at the Council roundtable meeting on evictions Monday. He represents the Small Multifamily Owners Association, a group that formed in June to lobby lawmakers and get them to embrace landlords’ ideas for how to respond to the pandemic. “Enforce life safety violations,” he told attendees at the roundtable hosted by At-Large Councilmember Anita Bonds. Bianco believes the Council should empower landlords to enforce “run-of-the-mill nuisance violations” and “truly dangerous behavior.” By “dangerous,” he means a tenant who destroys property, hosts large gatherings, discharges fire extinguishers, breaks into storage units, or steals electricity.
Bianco got back up from Randi Marshall, with the Apartment and Office Building Association of Metropolitan Washington, a trade group for local developers and property managers. “We found that the moratorium causes confusion among some tenants and disincentivizes others who may believe rent payments have been or will be waived,” she told the Council.
Tenant advocates know the city’s current eviction moratorium is unlikely to last forever. Beth Mellen Harrison, a housing attorney with the Legal Aid Society of the District of Columbia, is concerned about the practical effects of creating exceptions to the blanket ban. Landlords may be tempted to abuse exceptions, she suspects. The Legal Aid Society of D.C. has already heard from many tenants whose landlords have tried to illegally evict them by threatening to lock them out or intimate them into leaving. Harrison knows of cases where landlords moved ahead with illegal activities even after the Office of the Attorney General contacted them to explain the law.
“It’s like a balloon that you’re blowing air into,” she says. “The air wants to get out and if there’s any place the air can get out, it will do its best to get out.”
If the Council heeds landlords’ calls to allow them to evict a tenant for reasons other than their inability to pay rent, Harrison argues that there is no clear line between evictions for nonpayment and other lease violations in court. “Because landlords take that position that if you don’t pay at all, you are committing a separate lease violation called ‘consistent late payment of rent,’” she explains, and the D.C. Court of Appeals recognizes their distinction. Evictions for other lease violations could easily apply to tenants who missed rent due to losing their job during the pandemic. Rather than undermine the current eviction ban, Harrison proposes the Council strengthen it by making it illegal for a landlord to serve a tenant a notice to vacate as to prevent any confusion regarding D.C. law.
The Office of the Attorney General and the Office of Tenant Advocate want the Council to extend all tenant protections, and expand the moratorium on eviction filings from 60 days to 120 days after the public health emergency ends. According to the testimony from the Office of Tenant Advocate, emergency legislation cancelled 842 scheduled evictions, over half of those scheduled for properties in Wards 7 and 8, neighborhoods that are majority Black. The office expects 10,000 evictions will be filed immediately or very shortly after the ban on eviction filing expires.
Lawmakers sound interested in at least extending current protections. In a conversation with City Paper before the roundtable, Bonds, who chairs the housing committee, said “I am of the opinion that we don’t want people on the streets. And I am also of the opinion that if a tenant owes rent, they should attempt to pay as much of it as is possible.”
“The law is design to keep people in their homes at this time during these circumstances,” she continued. “It was not designed to be a response to folks who have other kinds of issues in their living arrangements.”
Council Chairman Phil Mendelson said in a statement to City Paper: “We need to make changes to the eviction process in DC regardless of the pandemic. The process is too easy for landlords while over 98% of tenants are helpless—without legal representation. As a result, over 30,000 cases are filed each year. On the other hand, a small percentage of eviction cases have nothing to do with rent; they’re about bad actors. Right now the eviction moratorium is protecting them, too. We must extend the current moratorium but also consider other reforms.”
Meanwhile, D.C. Superior Court is effectively reviewing the Council’s moratorium on eviction filings. After the Council banned such filings, the court ordered landlords to explain why their case filed on or after March 11 through the public health emergency should not be dismissed. After reviewing hundreds of landlords’ arguments, Judge Anthony Epstein selected a handful of cases for the purpose of deciding whether the filing moratorium violates the constitutional rights of landlords and whether cases on or after March 11 should be dismissed or stayed.
Epstein is reviewing a variety of cases. One case is between Borger Management, Inc. and a tenant who failed to pay $1,328 in March rent, according to City Paper‘s review of court filings. The landlord filed the complaint for non-payment of rent March 16, before the Council passed any legislation banning eviction filings. But lawmakers made the law retroactive to the start of the public health emergency. Now, Borger Management, Inc. is arguing it will incur even more legal costs if the case is dismissed without a refund from the court. For context, City Paper recently reported that Borger Management, Inc. received somewhere between $350,000 and $1 million in federal loans, and has filed 42 writs of eviction during the public health emergency.
The other cases are not as straightforward. Other eviction filings come from a foreclosed homeowner, a landlord who is trying to evict people who they alleged are not the leaseholders, and a fourth landlord who is trying to evict a tenant for violating the lease by allegedly using and selling marijuana.
The outcome of these cases are unclear and likely months away. According to court filings, Epstein is accepting briefs in support and opposition to landlords’ position until Nov. 20. Only after the briefing is complete will he decide whether and when to hold oral arguments.
Harrison thinks judges are expected to carry out whatever Epstein’s decision is in those specific cases as it relates to “common legal issues.” She is not certain what the practical effects will be. If Epstein stayed all the cases he hears until the public health emergency is over, does that mean he stayed all the other hundreds of similar cases? It’s unclear, but that appears to be the general concept. Legal Aid Society of D.C. will be filing a friend-of-the-court-brief alongside other groups as a way to protect the interests of tenants who do not have lawyers. The organization is also representing some individual tenants impacted by this.
The decision might be moot if the Council lets its moratorium on eviction filings expire. A landlord would likely opt to refile their case.
The day will come when the Council’s eviction moratorium expires, but some believe members should not just let protections evaporate without a transition period and plan. Ed Lazere, a current candidate running for at-large Council and the former director of the D.C. Fiscal Policy Institute, suggested during the Council roundtable that lawmakers craft legislation that makes the eviction moratorium permanent for those who fell behind on rent due to the pandemic.
“What I think is important is to set a goal and then you figure out the best way to get to the goal,” Lazere told City Paper by phone after the roundtable. “I do think it would be a policy and a moral failure if anyone lost their homes because their job disappeared through no fault of their own.”
Lazere envisions a plan where the burden of proof is not on the tenants but landlords. He also sees this ban working in tandem with a “landlord relief fund.” Other tenant advocates during the roundtable floated the idea of a fund for landlords, under the condition that lawmakers cancel rent. How does this work if D.C. has to maintain a balanced budget?
“The ideal situation is that the federal government, which is the only entity in this country that can run a deficit, would in fact print money … to put money in the pockets of renters who are getting behind,” says Lazere. “Unfortunately, we need a backstop because we can’t count on that with a Republican Senate for sure and a Republican president for now. That said, we need something local.”
“Where would it would come from? The city has barely scratched the surface in looking for revenue in this pandemic,” he says.