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Housing Crisis Looms with End of Eviction Moratoriums

The United States is on the cusp of a housing crisis. As states begin lifting eviction moratoriums, and with the July rent coming due, millions are still suffering from the economic damage caused by the pandemic. In Congress, Senator Elizabeth Warren has proposed a nationwide eviction ban that would protect struggling tenants in 2021 and expand the existing federal moratorium to include most renters (a description of her proposal is below). In Virginia, where six of the ten cities with the worst eviction rates in the nation are located, Governor Ralph Northam is calling for circuit courts to individually extend a ban on evictions, while rushing to enroll renters in a rent-relief program that was rolled out on June 29. The Virginia state Supreme Court mandated moratorium on evictions expired on June 29. Meanwhile, the Virginia Department of Housing & Community Development is only getting 25% of the $200 million it requested for the new program. Even the $200 million will not come close to meeting the $1.6 billion needed, according to the National Low-Income Housing Coalition. The COVID-19 crisis is nowhere near to being over, and while states are opening up (and in some cases closing down again), millions have lost jobs or had hours cut. This confluence of events could lead to a tsunami of evictions, one that could lead to a spike in homelessness at a time when the best defense against the pandemic is to stay home. As noted above, Senator Elizabeth Warren is introducing legislation that would implement a nationwide eviction moratorium. The Protecting Renters from Evictions and Fees Act would extend eviction protections for nonpayment of rent for one year, starting from March 27, 2020. It would also substantially expand the current federal eviction moratorium to include most renters. Currently, states and localities have their own rules, which amounts to a confusing patchwork of eviction policies. The CARES Act, passed by Congress in March, imposed a 120-day moratorium on evictions for tenants in federally assisted housing (including housing under the Low-Income Housing Tax Credit program) or in homes with federally backed mortgages - about 12.3 million of the 43.8 million rental units in the United States, according to The Urban Institute. These protections will expire on July 25, 2020, unless extended by Congress. Warren s bill would keep those protections in place for an additional eight months and extend the benefits beyond those in federally backed housing to almost all renters. The bill would also bar landlords from charging additional fees for nonpayment of rent and require landlords to give 30-days notice of eviction after the moratorium ends. Representatives Jesus Garcia (D-IL) and Barbara Lee (D-CA) are pushing similar legislation in the House. This new legislation is a stand-alone bill. The HEROES Act, the $3 trillion stimulus package passed by the House that is awaiting Senate action includes a similar nationwide eviction moratorium for nonpayment for most renters. The HEROES Act also comes with additional cash stimulus, expanded unemployment insurance, and almost $200 billion in financial support for housing and homelessness programs, including $100 billion for emergency rental assistance. Importantly, this Act will also keep money flowing to landlords, especially smaller landlords, who may rely on rental income to pay for building maintenance, utilities, mortgages, taxes, and other expenses. The eviction moratorium does provide a stopgap, preventing renters  from becoming immediately homeless during the pandemic. A national policy is also much more effective than the current confusion of state and local rules. As before, this bill does not "waive" or forgive the rent; tenants may still be evicted for nonpayment after the moratorium expires. Ultimately, these renters will need to be able to pay their rent - including the rent that has been delayed. It is likely that the early CARES Act benefits (the one-time stimulus checks and $600 per week in additional unemployment) did assist renters in being able to pay their rent.  However, these benefits expire at the end of July and so far, Congress has not replaced or extended any of those benefits. The Urban Institute estimates that about 8.9 million renter households - almost 20 percent of all renter households - have seen at least one household member lose a job in the past two months. Some housing activist groups are calling for dramatic steps to assist both tenants and landlords. These include cancelling or pausing both rent and mortgage payments.  Unlike the current system, this would not be a deferral of payment; it would be an erasure. This is going to be a tough hill to climb, especially because there is no indication that private mortgage lenders will agree to forgive parts of mortgage loans. Many of the investors holding these mortgages are in pension funds, and loan forgiveness would negatively impact retirement accounts. The only viable alternative may be a direct infusion of money into the pockets of renters or to lenders to cover them for lost mortgage income. This could be part of the next economic stimulus package. Unless the federal government fills this gap with a huge stimulus package, owners should be prepared for severe operational and monetary disruptions in the months ahead.

CAREs Act Eviction Protection for Housing Trust Fund Projects

A client recently asked me whether properties with money from the National Housing Trust Fund (HTF) are subject to the eviction moratorium protections of the CAREs Act. This is a somewhat confusing issue so a detailed review of the HTF protections is called for. The temporary eviction moratorium of the CAREs Act does apply to certain (but not all) projects assisted by the HTF. Background On March 27, 2020, the CAREs Act became law. Section 4024 of the Act imposes a temporary moratorium on evictions. This moratorium went into effect immediately upon the enactment of the law and is in place for 120 days. Applicability to the HTF Program The CAREs Act applies to a property with HTF assistance structured as a loan and secured by a lien on residential rental property. Since HTF is not a "covered housing program" (as defined in 41411(a) of the Violence Against Women Act of 1994), only a property assisted with a HTF loan secured on the property is a "covered property" under Section 4024(a)(2)(B) of the CAREs Act. Projects that received HTF assistance as a grant or unsecured loan are not subject to the CARES Act eviction moratorium but could be subject to state or local eviction moratoriums. When assessing the applicability of the CARES Act temporary eviction moratorium on a project, owners should review all sources of support, since other incentives and funding sources (e.g., HOME or LIHTC) are "covered housing programs" under the CARES Act. The applicability of the moratorium is not affected by the repayment terms of the HTF loan. Any project with an HTF loan secured by a lien or residential rental property is a covered property. This includes HTF loans with "soft" financing terms such as deferred or residual receipts payments and forgivable loans. If an HTF project is subject to the moratorium requirements of the CARES Act, the moratorium applies to all units in or on the property, regardless of whether the project is within its HTF Period of Affordability (POA). If a project is subject to the CARES Act eviction moratorium, for a period of 120 days, beginning on March 27, 2020 and continuing through July 24, 2020, an owner cannot: Make, or cause to be made, any filing with the court of jurisdiction to initiate an eviction for non-payment of rent or other fees or charges; orCharge fees, penalties, or other charges to the tenant related to non-payment of rent. If an owner did not provide the tenant with an eviction notice, including but not limited to a notice to vacate, quit, or terminate tenancy, for nonpayment of rent or other fees or charges before March 27, 2020, the owner may not issue such notice until after the 120-day period. Owners are reminded that fees, penalties, or charges relating to the non-payment of rent also cannot be charged. Therefore, there should be no charges, penalties, or fees assessed and accrued for non-payment of rent during the 120-day period. It is important to note that this moratorium is not "rent forgiveness." Unpaid monthly rent and fees and other charges (except fees and charges related to nonpayment of rent) may accrue during the 120-day period and be charged to the tenant after the 120-day period ends on July 24, 2020. The CARES Act moratorium does not apply to evictions based on violations of permitted lease terms other than nonpayment of rent or other fees, penalties, and charges. However, the HTF regulations at 24 CFR 93.303 still apply to HTF-assisted units.  Owners should also review their state and local laws, since many state and local jurisdictions are also enacting their own eviction moratoriums. HTF grantees (e.g., state or local governments) should have already provided owners of HTF-assisted properties with written notice of the CARES Act provisions and should have directed owners to provide tenants with information about their due process rights under the HTF Program. Based on the fact that I received a question on CARES Act applicability to the HTF program, it appears that program grantees are not notifying owners regarding their responsibilities under the program.

Pre-Termination Notice Requirements for Section 8 Properties

Many managers of HUD properties have learned the hard way that failing to give an absolutely correct notice prior to terminating a resident s lease can lead to eviction delays. If a pre-termination notice is not done in exact accordance with HUD requirements, it will be deemed defective and the eviction will be voided - no matter what the lease violation was. Required Elements of Pre-Termination Notice 24 C.F.R. 247.4 specifies the exact requirements of a pre-termination notice. The notice must "state the reasons" for termination "with enough specificity so as to enable the tenant to prepare a defense."The notice must also cite the exact provisions of the lease you claim the resident violated.Stating the violations themselves is not enough; the specific sections of the lease must also be cited. It should be noted that while the HUD regulation does not state that the lease sections must be cited, court cases have interpreted the law as requiring the owner to specify which provisions of the lease the resident violated. The cited court case that set this precedent is Fairview Co. v. Idowu, 148 Misc. 2d 17, 559 N.Y.S.2d 925 (Civil Ct. Richmond Co. [1990]). While this case is 30 years old, courts still cite it to this day when deciding if owners meet 247.4(2) specificity rules. The reasoning here is that a tenant cannot adequately prepare a defense if they don t know the exact provisions of the lease they are accused of violating. A Checklist of HUD Pre-Termination Requirements If the owner proposes to terminate a lease, the owner must give the tenant written notice of the proposed termination.For tenants with a disability, the notice must be provided in a form assessible to the tenant (e.g., in Braille or audio form for a tenant with a vision impairment).When an owner terminates tenancy, written notice must be provided to the tenant and must:State the specific date the tenancy will be terminated;State the reasons for the action with enough detail to enable the tenant to prepare a defense (including a citation of specific lease provisions);Advise the tenant that remaining in the unit on the termination date specified in the notice may result in the owner seeking to enforce the termination in court, at which time the tenant may present a defense;Advise the tenant that he/she has ten (10) days within which to discuss termination of tenancy with the owner (note that this is ten calendar days - not ten business days). The ten day period begins on the day that the notice is deemed effective, which for Section 8 properties, is determined in accordance with state and local laws.Advise that persons with disabilities have the right to request reasonable accommodations to participate in the hearing process; andBe served on the tenant as described below.When terminating tenancy for material noncompliance, the time of service of the termination notice must be in accordance with the lease and state law.In the case of a tenant s nonpayment of rent, the notice must include the dollar amount of the balance due on the rent account and the date of such computation. Manner of Service for Programs Other than Regular Section 8 Properties (i.e., Section 236, Section 221(d)(3) BMIR, Rent Supplement, Section 202/8, Section 202 PAC, Section 202 PRAC, Section 811 PRAC, Section 8 Loan Management Set-Aside, and Section 8 Property Disposition Set-Aside The notice must be served by:Sending a letter by first class mail, properly stamped and addressed and including a return address, to the tenant at the unit address; andDelivering a copy of the notice to any adult person answering the door at the unit. If not adult answers the door, the person serving the notice may place it under or through the door or affix it to the door.The date on which the notice is deemed received by the tenant is the later of:The date the first class letter is mailed; orThe date the notice is properly given.Service of the notice is deemed effective once the notice has been both mailed and had delivered. Owners/Agents (O/As) of HUD properties governed under the programs noted above should maintain a checklist of items to include in pre-termination notices and ensure that all required elements are included in every pre-termination notice.

A COVID-19 Best Practice Reminder for Multifamily Housing

COVID-19 IS A SERIOUS RESPIRATORY ILLNESS THAT CAN SPREAD FROM PERSON TO PERSON. It is unfortunate that months into this crisis, people still have to be reminded about how serious an illness COVID-19 is. The current resurgent outbreaks in multiple states should be a reminder to all that we are nowhere close to the end of this health crisis. The following guidance from the CDC should be implemented by all multifamily housing properties - regardless of where the property is located. SAFE DISTRIBUTION Create and implement a strategy for distributing goods and services - delivery of parcels, goods, and services should be conducted using secure drop-off locations, personal protective equipment (PPE), and trained staff or volunteers. Keep a record of all deliveries for future reference and to assist in possible contact tracing.Provide or require PPE - Latex gloves and masks should be required and provided to all staff, residents, and partners delivering food, goods, and other resources.Limit contact - Reduce potential exposure by using contactless, no knock, no signature delivery protocols. Maintain a six-foot distance when face-to-fact contact is necessary.Clean & Disinfect - Wash hands before and after handling packages. Do so thoroughly for 20 seconds. Disinfect delivered items when possible along with the counter and ground after opening. VISITING & SAFE DISTANCING Post safe distancing requirements - Inform all staff, residents, and visitors of CDC and state-specific safe distancing requirements, e.g., 6-feet or more. Update as needed.Be aware of high risk persons - Inform staff and residents of the serious health risks of COVID-19 and signs of possible infection. Protect the elderly and those with chronic health conditions.Restrict hours - Limit entrance to facilities when possible. Employ teleworking and communicate remotely.Limit contact - Physically limit large group gatherings by:Removing furniture or blocking common areas;Closing common spaces, e.g., meeting and computer rooms, kitchens, or playgrounds; andInforming large groups about the health risks when social distancing is not being practiced.Limit visitors - CDC recommends limiting visitors in high rises and senior housing to emergency and other medical or personal care providers and in accordance with local requirements. Establish a list of other essential services, e.g., childcare, food delivery, medication, other urgent goods and record all visitors in compliance with CDC recommended practices. Obtain contact information for all persons who enter the building. For other facilities, if possible, limit visitors to one at a time and practice safe distancing at all times.Use PPE - Encourage the use of masks and gloves and take additional protective steps if there is an active case of COVID-19.Clean & Disinfect - Perform thorough cleanings of public spaces regularly. Provide supplies to residents when possible.Establish new safe distancing procedures -Use a drop box or electronic payment for rental payments;Stagger office staff in-office and/or teleworking;Limit maintenance to emergency repairs;Establish a response team trained in safe practices; andDistribute goods while maintaining a six-foot distance. Despite the "re-opening" of the economy, COVID-19 is still here. Maintaining diligent and aggressive procedures in multifamily properties will reduce the risk of contracting the disease and demonstrate to your residents that you care about their well-being.

Smoking in Apartments - Two Recent Court Cases Illustrate Landlord Right to Permit or Prohibit Smoking

Two recent court cases have strengthened the rights of landlords to either permit smoking or to prohibit smoking in apartment communities. In Davis v. Echo Valley Condominium Association, Michigan (6th. Cir.), December 2019, a federal appeals court ruled that a resident was not entitled to a building-wide smoking ban as a reasonable accommodation. Facts of the Case The resident was disabled, with a history of asthma multiple chemical sensitivity disorder.She lived in a condo unit on the second floor of a four-unit building where units shared a common entryway, basement, and attic.For a number of years, the community had received complaints from residents that they could detect odors, including cigarette smoke, from neighboring units.Michigan state law permits smoking in one s home.The bylaws of the property did not prohibit smoking in units.In the first written complaint, the resident emailed a property management employee to report that the couple renting the unit below her was home all day and night chain smoking, which affected her "breathing, causing constant coughing, and near asthma attacks."The Homeowners Association (HOA) board instructed a management employee to send a letter to the owners of the downstairs unit, asking for their assistance in keeping the smell contained in the unit.A few months later, the board paid a HVAC contractor to install a $275 fresh-air system on the resident s ductwork that allowed her furnace to draw in fresh air from outside rather than stale air from the basement.The resident stated that while the unit helped, it did not eliminate the odor.The owners of the downstairs unit were contacted by the attorney for the complaining resident but would not ask the downstairs tenants to stop smoking since the bylaws permitted the practice.The downstairs tenants agreed to purchase an air purifier to eliminate residual cigarette smoke, but this did not satisfy the resident.The resident sued the HOA, property management company, owners of the unit, and their tenants, alleging that by refusing to ban smoking in the building, the HOA violated fair housing law.Shortly after, the downstairs owners did not renew the lease of their tenants and sold their unit.The resident continued the litigation, maintaining that she still smelled cigarette and marijuana smoke from another downstairs neighbor (not the original unit that was the subject of the complaint).The resident again requested that smoking in the building be banned.The HOA circulated a proposal to ban smoking at the property, but the proposal failed to pass. Decision The court ruled that the resident s requested smoking ban was not reasonable because it would fundamentally change the project s smoking policy by barring residents from engaging in a legal activity in their own property. The resident appealed. The appellate court affirmed the lower court decision. Reasoning The community did not violate fair housing law by refusing the resident s request to ban smoking in her building.The request did not qualify as a reasonable accommodation since the phrase "reasonable accommodation" means a moderate adjustment to a challenged policy, not a fundamental change to a policy.An adjustment goes too far if the costs of implementing it would exceed any expected benefits it would provide to the person requesting it.The resident s proposed smoking ban amounted to a fundamental alteration of the community s smoking policy; no one would describe a change from a smoking-permitted policy to a non-smoking policy as an "accommodation."The proposal would intrude on the rights of her neighbors who smoke, who may well have bought their units because of the policy permitting smoking. The resident has asked the U.S. Supreme Court to consider her appeal. In a second case, NYC C.L.A.S.H. v Carson, District of Columbia, March 2020, a DC court granted HUD judgment without a trial in a case filed by a smoker s rights organization, challenging HUD s regulation banning smoking in public housing, including individual residential units. The court rejected the organization s claim that the rule interfered with residents fundamental right to engage in legal activity in the privacy of their homes, because smoking in one s home is not protected by the right to privacy. The rule satisfied constitutional requirements because it is rationally related to legitimate governmental interests - to create safe housing conditions and easing the shortage of safe homes for low-income families. In May 2020, the organization filed an appeal of the court s decision. Pending any final appeals, these two cases strengthen the rights of property owners with regard to whether or not they wish to allow smoking in their communities, and the Davis case in particular makes clear that smoking in a building does not have to be banned as a reasonable accommodation to a disabled person.

How to Notify Residents of Confirmed COVID-19 Case

I have received a lot of questions lately regarding the rights of landlords and residents when a resident at an apartment community tests positive for the coronavirus. While a landlord is required to notify residents and the public regarding a positive COVID-19 case at his or her property, they may not in any way reveal the identity of the person who tested positive. Following is an example of a Notice that can be provided to residents when there is a positive COVID-19 case at your property: COVID -19 CASE NOTIFICATION TO RESIDENTS We have recently learned that a resident of [property name] has tested positive for the COVID-19 coronavirus. We cannot reveal the person s name, unit number, floor, or any other information that could be reasonably used to determine his or her identity. We therefore kindly request that you not ask us to provide such details. What we can tell you, though, is that the person has been advised and agreed to follow Centers for Disease Control [CDC] guidelines and remain in self-isolation for at least 14 days. We are urging all residents to remain calm and follow CDC and state and local public health guidelines with regard to social distancing, hygiene and hand washing, the use of personal protective equipment, and quarantine and self-isolation. We also wish to assure you that we have and will continue to take extensive COVID-19 infection control measures, including regular and frequent cleaning and disinfection of common areas, including floors, surfaces, and door handles, handrails, elevator buttons, trash and recycling chutes, and other commonly touched objects. Thank you for your understanding and for keeping in mind that COVID-19 is not a stigma or mark of shame and that those who contract it deserve our empathy, understanding, and kindness. Please be assured that we will share new information as it becomes available. Stay strong, stay safe, and stay in communication with us, and we will all get through this pandemic together. Thank you. [Property name] Management [Date] This notice (or one like it) should be used to put residents on notice of a confirmed COVID-19 case at your site without violating the ill person s privacy or causing a panic.

State Eviction Moratoriums for COVID-19 Due to Expire As Unemployment Benefits Dry Up

When the coronavirus pandemic hit the United States, most states put a hold on evictions from rental properties. In many states, those moratoriums are expiring at about the same time that more generous unemployment benefits are set to dry up. This one-two punch could easily worsen the housing crisis for Americans already bearing the worst of COVID-19s effects. According to a weekly Census Bureau survey measuring COVID-19s impact on Americans, 20% of adults polled in May said they had slight or no confidence they would be able to pay the rent or mortgage due in June. An Urban Institute analysis of Census data found nearly 25% of black renters deferred or did not pay their rent in May, compared with 14% of white renters. In Michigan alone, courts are bracing for as many as 75,000 landlord/tenant filings (that state s moratorium expired in mid-June). The result of all this is that the pandemic - which forced an economic collapse - is adding new burdens on top of the country s serious housing problems. Even before the current crisis, the United States had a supply and affordability problem. Unless significant support is forthcoming at the federal, state, and local level, it is going to get a lot worse. The result may be higher rates of homelessness - leaving more people on the streets in the middle of a global pandemic. Even before the pandemic, our homeless shelter system was stretched thin and not set up for social distancing. In the best of times an eviction can have a devastating effect on a family; in a pandemic with an economic crisis, the situation is amplified. Since the nation was not prepared for the pandemic (despite warnings from various sources for years), reactive measures were developed in haste and the result was a patchwork of eviction halts with varying lengths and caveats. Moratoria in places like Texas have lapsed;Others will expire very soon - including Louisiana and Pennsylvania - while some states such as New York have announced extensions.San Francisco essentially made its moratorium permanent, prohibiting landlords from ever using missed rent for pandemic-related reasons as grounds for eviction. This essentially means any rent lost during the pandemic due to a loss of a resident s income is lost forever. This is an awful piece of legislation that is likely to have a domino effect that will harm both tenants and property owners. Landlords need rental income to pay bills, provide tenant services, pay mortgages and taxes; the city needs tax income to pay workers and fund essential services.Federal help was limited to housing with federal assistance and that moratorium will expire on July 25. Both landlords and tenants need to understand that an eviction moratorium is not a rent freeze - which means that overdue rent is still accumulating for tenants who have been unable to pay it. Once a moratorium expires and landlords can get court approval to take or resume eviction action, residents could be months in the hole - with little to no chance of catching up. Even more concerning, some of the expirations coincide with the stoppage of more generous unemployment benefits (the $600 per week) that have helped keep unemployed individuals above water. Congress is still debating whether to extend enhanced unemployment benefits beyond July 31, but Senate Republicans are not in favor of such an extension. While it may be possible (and advisable) for landlords to negotiate with tenants before evicting them, landlords are feeling the pinch. However, the cost of evicting an existing tenant may not be worth it, particularly if there is little demand from new renters. Each property owner will have to assess how to move forward based on individual circumstances, but if a reasonable payment plan with residents appears feasible, it may be a better option than eviction.

HUD Publishes 2020 Income Limits for HOME, CDBG, HOPWA, HTF, and NSP and 2020 Rent Limits for HOME and HTF

On June 17, 2020, HUD published the Income Limits for 2020 for a number of programs, including: Community Development Block Grant (CDBG);HOME Program;Housing Opportunities for Persons with Aids (HOPWA);Housing Trust Fund (HTF); andNeighborhood Stabilization Program (NSP). HUD has also published the 2020 rent limits for the HOME and HTF programs. These updated limits will be effective on July 1, 2020 and can be accessed on the following websites: Income Limits: https://www.hudexchange.info/incomecalculator Maximum Rents: https://www.hudexchange.info/programs/home/home-rent-limits/