As End of Eviction Protections Loom, Housing Advocates Urge Changes to Court Procedures

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State and federal eviction protections will soon expire in Maryland, and fair housing advocates say many tenants could lose their homes as courts work through lengthy eviction backlogs.

Gov. Lawrence J. Hogan Jr. (R) announced Tuesday that Maryland’s state of emergency will end July 1st — and after an additional 45-day grace period, the state’s eviction protections will also phase out. The announcement came as a contentious Centers for Disease Control (CDC) stay on certain evictions is set to expire at the end of June.

Both the state and CDC orders offered similar affirmative defense protections for tenants, who could use pandemic-related income loss as a means of temporarily averting an eviction. Fair housing advocates and legal experts have long cautioned against characterizing the orders as “bans” or “moratoriums,” since they only applied to certain evictions.

Evictions have moved forward at a slow pace throughout the pandemic due to court closures and emergency protections, but have picked up speed since courts began reopening. And once the CDC order expires at the end of June, courts will begin processing landlords’ petitions for warrants of restitution for cases that were previously stayed.

Carol Ott, the tenant advocacy director for the Fair Housing Action Center of Maryland, said some of her clients have successfully used the current state and federal orders to avert eviction. But Ott warned that, with slow unemployment benefits and rental relief programs, many tenants haven’t had the chance to catch up on rent.

“The one big thing for most of our clients is the disaster that was the unemployment system and how so many people would have been okay had they been able to receive their unemployment payments in a timely manner,” Ott said.

The eviction orders from Hogan and the CDC don’t exempt tenants from paying rent, but rather temporarily delay an eviction.

Attempts to codify and further expand the state’s eviction order failed in the last days of the Maryland General Assembly’s 2021 legislative session. House Bill 1312, sponsored by Del. Jheanelle K. Wilkins, would’ve allowed tenants to raise an affirmative defense for several months after the end of a catastrophic health emergency, depending on how long that emergency lasts. That bill, along with a proposed increase to court fees to pay for the state’s new access to counsel initiative, failed to pass before the end of session.

Local and state governments are standing up rental assistance programs with federal stimulus funding, but applying for and receiving that relief money takes time: Housing advocates and local leaders have petitioned Hogan to institute a full 90-120 day moratorium on evictions while local governments get the programs up and running with federal relief funding, but no such order has been instituted.

Other state relief efforts for tenants and homeowners remain underway. On Tuesday, the Maryland Public Service Commission finalized $83 million in grants to Maryland electric and gas utilities as part of the state’s RELIEF Act in an effort to forgive customer debt racked up during the pandemic.

William Roberts, the chair of the Montgomery County Renters Alliance, said he’s concerned about the “logistical nightmare” of getting aid to tenants in a timely fashion, and urged local and state officials to step up their efforts to help tenants before evictions ramp up.

“We need state and county governments to step on the gas with regard to the pace of processing rent relief applications, because we think that it’s quickly, if not already, going to be surpassed by the uptick in eviction filings the courts are open again,” he said.

Roberts said the best way for state and local officials to help landlords is to ensure that tenants are able to pay their rent. He added that millions in rent relief funding will be wasted if tenants don’t have time to apply and receive that funding.

“Money to a tenant to pay their landlords helps the landlord keep the lights on,” Roberts said. “People need to understand that aid to tenants helps landlords.”

An estimated 147,000 households are behind on rent in Maryland, according to the National Equity Atlas, which draws its data American Community Survey, U.S. Census Bureau’s Household Pulse Survey and California’s Center for Economic and Social Research’s “Understanding Coronavirus in America” panel survey.

Of those renters behind on rent, an estimated 78% are people of color, 56% are unemployed and 71% make less than $50,000 per year, according to the National Equity Atlas.

Tenants may be unaware

With the CDC’s eviction order set to expire at the end of June, the Public Justice Center and other legal and housing advocates are calling on the Maryland District Court to reconsider its plans for working through delayed cases.

In a Wednesday letter to District Court of Maryland Chief Judge John Morrissey, several groups warned that the courts’ plan could mean tenants are evicted in backdated cases despite paying their rent. Signatories to the letter are the Public Justice Center, Maryland State Bar Association Delivery of Legal Services Section, Maryland Volunteer Lawyers Service, Pro Bono Resource Center of Maryland, Homeless Persons Representation Project, Disability Rights Maryland, Community Legal Services of Prince George’s County, Civil Justice, and CASA.

When tenants have raised the CDC affirmative defense protections, according to the letter, the Maryland District Court has determined the amount due as of the date of a trial and has issued a “reserved judgement” until the expiration of the CDC order. After the order expires, landlords will be able to submit a “petition for warrant of restitution” and affirm under oath that the rent hasn’t been paid.

Advocates say the court’s plan for reserved judgements will mean tenants with reserved judgements “may be facing eviction with little-or-no notice and no meaningful opportunity to dispute the landlord’s assertion that they still owe rent.”

The warrants of restitution issued by the courts do not require proof that a landlord served the papers to a tenant. “And, in our collective experience, landlords do not serve a copy of the petition on the tenant in practice,” the advocates wrote. “…Tenants whose rent has been paid in the last nine months will have no notice that the landlord is moving forward with the judgment and warrant of restitution based on the landlord’s filing.”

There are four types of eviction cases in Maryland:

  • Failure to pay rent cases occur when landlords believe tenants owe back rent;
  • Tenant holding over cases can occur when a tenant remains on a property after a lease expires;
  • Breach of lease cases can happen when tenants violate a lease; and
  • Wrongful detainer actions can occur when someone who isn’t a lawful occupant of a property refuses to leave.

Hogan’s order covers failure-to-pay rent and breach of lease eviction actions, and the CDC order has similar applicability.

Before an eviction takes place, landlords who file any type of eviction case need to receive a judgement before filing a “petition for warrant of restitution.” If that petition is granted, the landlord can evict a tenant.

Zafar Shah, an attorney with the Public Justice Center said the automatic entries of judgement weeks or even months after a hearing “should sound alarms for a lot of people outside of the court system.”

Shah said that, from his own perspective, more tenants used the CDC order to stay an eviction in court than the governor’s order. He added that how Maryland courts handle CDC-related cases will be a preview for how it handles reserved judgements under the governor’s order when that phases out in August.

“Either way, there is something deeply unfair here that is happening … just on the grounds that it’s faster and more efficient for the court not to have more hearings,” Shah said.

Roberts said he hopes the CDC will opt to further renew its affirmative defense eviction protections, but added that even if state and federal orders expire, tenants should still head to court if faced with eviction. He also noted the vast majority of tenants lack representation in court, and said he hopes the state’s newly passed access to counsel initiative receives funding in the future.

“We know generally that if a tenant doesn’t appear in court, they’ll receive a judgment against them regardless of whether they would have been protected by the orders or some other justification,” he said.

For now, Roberts said pushing back the sunset on eviction protections, whether at the state or federal level, would be helpful to give tenants more time to receive emergency relief funding. He said that although COVID-19 numbers are dwindling, tenants could still be forced into congregate living settings if evicted, leaving them at a higher risk of infection.

“The backdrop of all of this is still the largest pandemic any of us have ever lived through,” he said.

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