Unprotected Tenants

Why are Democratic lawmakers supporting a bill that would ban municipalities from adopting rules prohibiting tenant discrimination based on their source of income?

BY THOMASI MCDONALD tmcdonald@indyweek.com

It’s hardly a secret that there is an ongoing affordable housing crisis throughout the Triangle that’s exacerbated by gentrification and a housing shortage.

With that in mind, what state Democratic Party member who represents the region would approve legislation that further hinders its poorest residents from having safe places to live?

Ask Adam Golden, a third-year student at the Duke University School of Law.

Golden reached out to 19 Democrats in the North Carolina House about their April votes for House Bill 551, a GOP-led piece of legislation that would prohibit local governments across North Carolina from enacting source of income (SOI) protections for tenants.

The omnibus bill would also require tenants who have service animals to provide written verification from a healthcare professional regarding their disability and need for the animal. And while there are what appear to be some minimal protections for people with disabilities and service animals written into the bill, legal experts and housing advocates say these don’t actually do much to help people with disabilities.

Golden has spent a significant portion of his law school career working with Legal Aid of North Carolina and the Duke Law Civil Justice Clinic representing tenants in eviction and other proceedings.

“[SOI protections] ensure that those using housing vouchers, veterans’ benefits, or other non-traditional incomes can have choice over where they live,” Golden wrote in a May 2 email to state lawmakers following the vote on April 27, which led to the bill’s passage in the house.

In the message, Golden noted that here in North Carolina, more than 80 percent of housing choice voucher (also known as

Section 8) holders are people of color and nearly a quarter are disabled, according to data from the U.S. Department of Housing and Urban Development (HUD).

The legislation, Golden explained in a second email to Democratic members of the state senate—which has not yet voted on the bill—would preempt cities and counties from passing SOI protections for their residents, make it more difficult for those with disabilities that require a service animal to bring their animal into their home, and force tenants to pay uncapped attorneys’ fees to their landlords if they appeal their eviction.

“Every day in the courtroom, I see firsthand our failure to provide safe and adequate housing for all, including many forced out of their long-time homes and, frequently, into homelessness,” Golden explained. He added that housing vouchers are one of the few safety nets for the growing affordable housing crisis and mark a congressional effort “to move away from the public housing model and to provide low-income families with more choice over where they live.”

“In doing so, federal lawmakers hoped to break up class and racial segregation in housing,” Golden added.

Jesse McCoy, the supervising attorney at Duke’s Civil Justice Clinic, described HB 551 as “horrific.”

“I’ve seen a lot of bad bills,” McCoy tells the INDY, “but this is really bad.”

McCoy, who helped launch Duke’s eviction diversion program in 2017, says that, under current law, North Carolina expressly forbids rent controls, except in specific situations.

“But the problem with this bill is that it’s trying to expand the law that allows landlords greater access to turn away state residents who rely on rental assistance,” he says.

“This is not a new thing,” McCoy adds. “For years, landlords have refused housing to people who they find out have subsidized housing assistance. This has been happening.”

In North Carolina, there is no law that explicitly allows municipalities to institute their own SOI antidiscrimination ordinances, and traditionally, town and city attorneys have been wary of testing such broad ordinances out of fear of being sued, Golden says.

But municipalities such as Durham, Raleigh, and Winston-Salem have some levels of protections for tenants, if not official ordinances—for instance, for developments that receive city funds, landlords may not discriminate against tenants based on their SOI. Charlotte and Mecklenburg County passed ordinances that protect renters in buildings that receive federal funding. Those practices don’t go far enough to cover the vast majority of tenants in the state, however.

“Many other states and cities have adopted SOI protections because they work,” Golden says.

Examples include Atlanta, Louisville, and New York City, which is taking steps to strengthen enforcement of its SOI antidiscrimination laws. Furthermore, 19 states have SOI laws in addition to those states’ major cities and counties. While the issue has mostly been partisan, with blue cities frequently passing protections despite opposition from GOP legislatures, even some red states such as Utah and North Dakota have statewide SOI protections.

In Texas, Republicans introduced a bill similar to HB 551 after Democrat-led cities such as Dallas and Austin sought to protect their residents from SOI discrimination.

Still, more and more tenants are gaining protections across the country. HUD data show that denial by landlords decreases from 77 percent to 35 percent in areas with protections, “and recipients are more likely to move into low-poverty, high-opportunity neighborhoods,” Golden adds. And in what is essentially a high-demand seller’s market, “landlords continue to do just fine,” Golden says.

Among the Democratic legislators here in the Triangle who voted in favor of HB 551, or the Landlord-Tenant and HOA Changes Act, were Zack Hawkins of District 31, which includes East Durham; B. Ray Jeffers of District 2, which includes North Durham; Joe John and Ya Liu of Raleigh; Renee Price of Hillsborough; and Maria Cervania, of District 102, which includes Cary and Apex, according to the NC General Assembly website.

Price, a freshman house member who served on the Orange County Board of Commissioners from 2012 until 2022 before winning a seat in the General Assembly, says she has long been an advocate of affordable housing and federal housing vouchers.

“Builders don’t want these types of controls,” Price told the INDY about her vote for HB 551. “And with smaller landlords, some of them are not really into being forced to accept these vouchers.”

Price added that the proposed legislation does not preclude cities and counties from working jointly with builders who may be offered incentives, like tax breaks, to build affordable homes.

John, a former judge, says the bill “has a mix of good and bad to address multiple issues.”

“I ultimately voted ‘Yes’ in this instance, albeit unenthusiastically, because I support the increased protections for renters with disabilities and service animals,” John wrote in an email to the INDY

Cervania told the INDY that HB 551 has “some good pieces.” But she says that after fully researching the bill and talking with others, she now opposes the section that would preempt cities and counties from enacting ordinances prohibiting landlords from accepting housing vouchers and would oppose the bill on that grounds if given another opportunity to do so.

“The last thing I want to do is preempt any county,” Cervania says.

McCoy, the Duke clinic’s supervising attorney, takes issue with the parts of the bill that lawmakers have interpreted as protecting people with disabilities and service animals. He says that in addition to creating the image that a prospective tenant has bargaining power, the bill “inhibits the city and county from getting involved in any way.”

McCoy also takes exception that the service animal section in the proposed legislation is intended to protect people with disabilities.

“Landlords have been trying for years to figure out creative ways to kick people out with pets that are not authorized,” he says, adding that they have accepted that they can’t deny service animals who help, for instance, members of the blind community.

Instead, McCoy says he thinks the legislation will target the owners of animals who provide emotional support. He says requiring tenants to provide medical certification also crosses the line regarding a person’s medical privacy.

Concerns about landlords refusing to accept federal housing vouchers surfaced publicly in Durham in the wake of the coro- navirus pandemic in 2021, at the end of a federal eviction moratorium.

Data from state courts show that the number of eviction cases across the state last year spiked to its highest level since 2019, the year before the start of the COVID moratorium and federal rental assistance.

In Wake County, for instance, while eviction filings are currently happening at a lower rate than in 2019, evictions jumped to 9.5 percent last year. The rate was 6.2 percent in 2021.

Meanwhile in Durham, Sarah D’Amato, who directs Legal Aid of North Carolina’s eviction diversion program, told The News & Observer in February that the “courthouse’s eviction docket has now grown to 100 to 200 cases a week,” adding that trends over the last few months show that eviction rates in the Bull City are “on pace to hit 2019 levels, if not higher.”

HUD data from 2019 show the median income of a voucher user was $13,450, “hardly enough to afford adequate housing in the free market,” Golden says. In Durham the average monthly rent for a one-bedroom apartment is around $1,600, according to rent.com.

Moreover, Golden adds, currently only one in four qualifying families receives a housing choice voucher, and waitlists to receive one “are often years long.”

Despite the challenges, Golden says the voucher can be a lifeline, reducing the likelihood of homelessness by three-fourths, of living in an overcrowded home by half, and of moving in a five-year period by a third, according to data from HUD.

Golden told the legislators that as a consequence of federal law not requiring landlords to accept vouchers, somewhere between 20 and 40 percent of voucher recipients are unable to find a willing landlord in the allotted time.

McCoy notes that tenant discrimination, as seen in this bill, is apiece with historical practices in the South that are rooted in racism, with the legacy of property owners refusing to comply with government telling them what to do with their property dating back to slavery.

“It’s a relic of Jim Crow, [pre–]civil rights, slavery, and redlining,” McCoy says.

Far from partnering with the state’s GOP lawmakers to codify a law that forbids cities and counties from enacting anti-discrimination housing ordinances, Golden says the “administration of housing vouchers is a local issue that should be left to local decision makers.”

“Quite simply,” Golden told the Democratic lawmakers, “I find such a vote by those who profess to care about vulnerable North Carolinians to be unconscionable.” W