Faculty Opinion Editorial: Housing Help

Housing Help: Why Tenants Rights and Rental Relief Are Important Beyond the Pandemic

by Professor Katy Ramsey Mason

Since the COVID-19 pandemic began last year, there has been an unprecedented amount of media attention on an urgent consequence of the pandemic: evictions. The numbers are staggering — as many as 40 million Americans, many of them low-income people of color, are at risk of losing their housing in the midst of the biggest public health crisis in a century. According to the Center on Budget and Policy Priorities, nearly 300,000 Tennesseans — more than 20% of the state’s residential renters — reported in February 2021 that they were behind on their rent payments. The pandemic has without question exacerbated housing instability over the past year, but it is also important to understand that there was already an eviction crisis before the pandemic started, and it will likely continue after the pandemic ends. And the pandemic has exposed many areas of the landlord-tenant relationship that are in desperate need of reform.

The link between housing insecurity and the pandemic is not difficult to grasp. According to the federal Centers for Disease Control and Prevention (CDC), “eviction moratoria […] can be an effective public health measure utilized to prevent the spread of communicable disease […] housing stability helps protect public health because homelessness increases the likelihood of individuals moving into close quarters in congregate settings, such as homeless shelters, which then puts individuals at higher risk to COVID-19.” Since the pandemic took hold in the U.S. in March 2020, local, state and federal governments have implemented forms of eviction moratoria in recognition of the danger of making people homeless through eviction during this unprecedented time. Unfortunately, low-income people of color are the most likely to be at risk of eviction and are also most likely to have experienced the other devastating effects of the pandemic — infection, hospitalization, death and income loss. Landlords have also been struggling — many property owners, especially small-scale ones, have experienced significant hardship in meeting their mortgage payments, tax obligations and other costs because of the loss of rental income from tenants affected by COVID-19. This, in turn, contributes to the loss of affordable housing units and further compression of an already difficult rental market for low-income tenants.

The pandemic has drawn broader attention to the issue of tenants’ rights. The landlord-tenant legal system is governed almost entirely by state and local law, which means that rights and responsibilities of tenants and owners can vary significantly state to state. However, one commonality among all 50 states is the use of a summary process for eviction matters. This expedited process is intended to incentivize landlords to use the court system to regain possession of property, rather than using self-help to remove tenants. In exchange for being required to take their disputes to court, landlords are promised an expedited court process, avoiding the lengthy procedure that usually accompanies civil litigation. In order to accomplish this, certain hallmarks of the civil court process are curtailed in eviction cases — tenants are not allowed to assert defenses and counterclaims or request discovery in the same way that other civil defendants can, and, by statute, there is a particularly short turnaround from complaint to trial. All of these concessions to expediency are things that tend to benefit the landlord’s interests.

Moreover, landlords are significantly more likely to be represented by attorneys in court. More than 90% of landlords have lawyers who represent them in eviction proceedings, while fewer than 10% of tenants do. Both tenants and landlords have experienced hardships since the pandemic began, but tenants are at a significant disadvantage during the formal eviction process.

Especially in a city like Memphis, with a high poverty rate and stark racial disparities in the health and economic effects of the pandemic, evictions are a matter of racial justice. Since the pandemic began, approximately 80% of new eviction filings have been in zip codes where the median household income is below 50% of the area’s average. Those are the same areas with the highest populations of Black and brown residents, and where the effects of the pandemic have been felt most acutely. Therefore, ensuring that fewer people are displaced from housing in these areas is critical to addressing the disparities that the pandemic has exposed and exacerbated.

In Memphis, a dedicated group of attorneys, law students and government officials have worked hard to establish a response to the pandemic’s effect on housing insecurity, and at the same time, to improve tenants’ access to legal representation in eviction proceedings. In 2020, the Eviction Settlement Program (ESP) provided approximately $2 million in emergency financial assistance through the CARES Act on behalf of nearly 1,200 tenants, in exchange for their landlords agreeing to dismiss pending eviction proceedings. In 2021, Memphis and Shelby County have been allocated nearly $30 million in Emergency Rent Assistance funds to assist with unpaid rent and utilities. This emergency federal money is absolutely critical for preserving housing stability for renters in Shelby County. The ESP has also provided much-needed legal representation to tenants in negotiations and litigation. Other cities, such as New York City, which have invested in legal representation for tenants have found that it results in lower eviction rates and overall cost savings for local governments. Having attorneys for tenants also helps to even the playing field in court and alleviates some of the harmful imbalances in how landlords’ and tenants’ interests are treated in the summary eviction process. Hopefully, the silver lining of the pandemic is that this will be just a first step in improved tenants’ rights and access to legal counsel for low-income renters in our city.

Professor Ramsey Mason is an assistant professor of law and director of the Medical-Legal Partnership Clinic at the University of Memphis School of Law. She has become a leading voice on how evictions have become a part of the pandemic-related public health crisis across the country. She has been instrumental as a part of the leadership team for the Eviction Settlement Program in Memphis and Shelby County.