She owed $1,550 in back rent on her two-bedroom apartment in a modest section of southeastern Lexington, Ky. If she were evicted, Brockman had no family or friends to stay with. She feared that if she landed in a homeless shelter, child welfare might come for Nova.
But that Tuesday morning, Sept. 15, Brockman listened as the property manager at her building began talking about a new order from the Centers for Disease Control and Prevention, something that could keep her in her apartment for a few more months. Sign the two-page declaration and bring it to her court date later that week, she was told. Here was a tiny thread of hope in what had been six months of emotional ups and downs.
Brockman, 38, left the office, carefully scanning the 522 words of legalese as she walked through a courtyard where she had seen sheriff’s deputies stack the belongings of evicted neighbors.
All the criteria appeared to fit: “I am unable to pay my full rent or make a full housing payment due to substantial loss of household income.”
“I have used best efforts to obtain all available government assistance for rent.”
“If evicted I would likely become homeless.”
“I’m like, ‘Check, check, check,’” Brockman said recently. She felt relief mixed with excitement. “The CDC guidelines seemed designed exactly for someone like me."
Millions of Americans, knocked financially sideways by the coronavirus pandemic, were thinking the same. Anchored in public health concerns that the economic stress of the pandemic will force millions of renters from the safety of their homes and into the crosshairs of a fast-spreading virus, the CDC order aims to keep the estimated 40 million renters facing eviction this year in place through Jan. 1. “I want to make it unmistakably clear that I’m protecting people from evictions,” President Trump said in a statement when the CDC order was announced.
But as Brockman and tens of thousands of others soon realized, rather than offer a bubble of stability in the midst of the pandemic, the federal response has injected confusion into housing courts. Because of the order’s wording, which gives local judges room for interpretation, and pushback from landlords, evictions have continued. According to Princeton University’s Eviction Lab, from Sept. 4, the date the CDC order took effect, through Oct. 17, 20,523 evictions were filed in the 22 cities monitored by the project’s researchers.
Within weeks of filling out her CDC declaration, Brockman was sitting in her apartment, cradling Nova and waiting for the sheriff’s deputies to knock on her door.
The CDC did not respond to requests for comment. Michael Bars, a White House spokesman, said in a statement: “President Trump has made providing assistance to Americans facing financial hardship due to the coronavirus a top priority, including action to provide extensive relief to help keep Americans in their homes through a temporary halt on evictions. Importantly, the eviction moratorium was specifically crafted to target renters at risk of becoming homeless as a means to prevent further spread of the coronavirus. It is critical that Americans have a place to effectively quarantine, isolate, and observe social distancing to protect their health and safety and those in the surrounding community.”
A flawed order
The CDC’s September order landed after a tense waiting game over how the Trump administration would tackle a housing crisis triggered by the coronavirus outbreak but rooted in decades of economic inequality.
The jobs and wages swept aside by the ensuing recession have pushed an estimated 8 million Americans into poverty since May. Experts say even with the patchwork of state and local eviction moratoriums launched since the start of the pandemic, as many as 40 million tenants could be evicted by the end of the year.
Meanwhile, public health experts have warned that evictions would spread the virus. In early September, University of Pennsylvania researchers conducted a computer modeling simulation on how evictions might affect the infection rate of a city of 1 million residents and found that even a “low eviction rate of 0.25 percent” per month was responsible for around 15,000 new coronavirus cases and 150 deaths.
The CDC action aimed to directly address this threat. “Evictions threaten to increase the spread of covid-19 as they force people to move, often into close quarters in new shared housing settings with friends or family, or congregate settings such as homeless shelters,” the order states. “In the context of a pandemic, eviction moratoria — like quarantine, isolation, and social distancing — can be an effective public health measure utilized to prevent the spread of communicable disease.”
But the order, which applies to individuals earning less than $99,000 annually, or $198,000 for couples, has failed to protect people for several reasons. For tenants who sign the declaration, it does not erase any of the rent or late fees they owe, nor does it provide financial relief to landlords. “Renters and rental housing providers alike have bills that need to be paid, but lack the funds to pay them," Greg Brown, the senior vice president of government affairs at the National Apartment Association, a leading landlord advocacy group, said. “The only policy that addresses these issues is a dedicated rental assistance program.”
Unlike the jurisdiction-wide moratoriums in places like the District, the CDC’s protection is also not automatic. Tenants first have to sign the declaration under penalty of perjury and give it to their landlord, or, if their landlord still moves to evict them, bring it to court.
Then there is the declaration’s wording, which can be frustratingly ambiguous. Allilsa Fernandez, 37, of Queens was not able to start a new full-time job as a home health aid in March because of the pandemic, and asthma limited her ability to find other work. When her roommate also lost her job, they fell far behind on their $1,800 monthly rent. Fernandez, who has been receiving weekly eviction notices, didn’t sign a declaration because she couldn’t tell whether she met the order’s requirements. “You have to prove financial hardship but how do I prove that I had a job lined up that went away?” she said.
State supreme courts have issued their own guidance to local judges on how to interpret the order. For example, in Maryland, courts have been instructed to still determine the merits of an eviction case — decide whether the tenant should be removed — but hold off on final execution of the judgment until after the moratorium expires.
Across the border in Virginia, the state Supreme Court has not issued guidance, meaning each jurisdiction is free to enact the order however it wishes. Some counties are continuing judgments while others are dismissing all eviction cases outright. “There is a lot of variation in how it’s being applied,” said Steve Fischbach, the litigation director of the Virginia Poverty Law Center.
Judges also have discretion to “interrogate tenants about the veracity of their statements in the declaration,” said Ben Carter, the senior litigation and advocacy counsel at the Kentucky Equal Justice Center. Some judges accept the declarations. Others question the renters in court under oath. “Judges should be taking the declaration at face value and allowing people to move on with the work of staying healthy at home,” Carter said.
On Oct. 9 the CDC released a “non-binding guidance document” to try to resolve these issues. Seen as a win for property owners, it allows them to challenge the truthfulness of a tenant’s declaration and clarifies that they have no obligation to tell tenants about the CDC protection. (The guidance did not go far enough for some landlords. The National Association of Home Builders, whose members own and manage rental housing, Friday filed a lawsuit seeking to strike down the order entirely.)
For tenants such as Brockman, this mishmash of local interpretation and federal guidance has created a disorienting legal fog.
In mid-September, she stepped into a crowded Fayette County courthouse, with Nova and her signed CDC declaration. She took her place in a long line of tenants spaced six feet apart. When Brockman finally reached the courtroom, she learned a judgment had already been entered against her in the case. She asked why she was being evicted despite having signed the CDC declaration. The judge replied that she did not qualify for the moratorium because she had failed to make a partial payment.
Brockman left without explaining that she actually had attempted to make a partial payment through a state rental assistance program. “When a judge tells you you don’t qualify, what can you say?” she later recalled. Instead, she sat down on a bench in the hallway, and “the tears just started flowing."
‘What a mess this all is.’
The CDC order’s biggest loophole, tenant rights lawyers say, may be a single clause in the order that reads: “You may be evicted for reasons other than not paying rent.” It gives landlords ways around the moratorium and the ability to evict tenants like Shalonda Glascoe, who rents a townhouse in Baltimore.
On an early October afternoon, the 47-year-old was hunting for her signed CDC declaration in the stack of papers on her kitchen table when she heard the front door crack open. She hurried into the hall, head spinning with possibilities. Even though court records show she and her landlord had settled a dispute over her living conditions — a bedroom ceiling that gushed water when it rained; a dishwasher that kept flooding the house — in November, the landlord had begun eviction proceedings earlier this year. “They are retaliating against me for fighting them,” she said. Glascoe was challenging the eviction order in court. Still, she worried: Had they called the deputies anyway to kick her out?
It turned out to be her daughter’s friends, who had stopped by to buy Glascoe’s mattress. “We have to get some money coming in here some way,” she said as she counted the bills.
Glascoe has not had full-time work since a 2016 accident left her unable to do her job as a Maryland Transit Administration bus driver. The pandemic made it hard to pick up seasonal and part-time delivery gigs. These days, she collects a weekly $176 unemployment check and whatever proceeds she gets from selling T-shirts she designs with her daughter. It’s not enough to cover her monthly rent of $1,155. The company that owns her townhouse said that as of August, she owed about $8,000.
Because Glascoe was struggling to make the rent payments, C. Matthew Hill, an attorney with the Public Justice Center in Baltimore, believed she qualified for the CDC order. Her landlords disagreed because they were not evicting her for failure to meet her payments. They were simply not renewing her lease, an option in Maryland known as a tenant holding over action. Property owners are not required to provide justification, only give notice.
“We fully understand that the CDC order is an important part of what is going on in the country right now,” the landlord’s attorney argued in a Baltimore courtroom in mid-October. “But it was never designed for people who are no longer legal tenants.”
The judge ruled in favor of the landlord.
In the end, Glascoe was able to keep her home because the judge later determined that a local law shielded her from any eviction filing within six months of her previous case against her landlord. Her lease was automatically renewed.
Hill, her attorney, was pleased with the outcome, but not with how easy it was to circumvent the moratorium. “It is clearly her inability to pay the rent that has led us here,” he said. “Her case shows the limitations of the CDC order and what a mess this all is."
Praying for a reprieve
On a Monday in September, the day Brockman was supposed to be out of her unit, every sound outside her apartment brought her to the front door.
“This level of anxiety is something I’ve never felt,” she said. “It’s not going away."
As she waited for the sheriff’s deputies, she constantly checked her cellphone for a text message from Carter, whom she had found through the Kentucky tenants rights organization. The attorney had filed a motion to amend the judgment entered against Brockman. Late in the afternoon, after many trips to the window, she received a message that she had been granted a hearing for Friday. At the hearing, Carter convinced the judge to extend the CDC protection to Brockman.
“This is a woman who is waiting on unemployment benefits, she has a 5-month-old kid, and she did everything she was supposed to do and she only escaped eviction by a cat’s whisker,” he said later.
Before leaving court, Brockman was given a new court date to address her potential eviction — Jan. 15, 2021, “which will be here before you know it,” she said.