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Legal advocates, grassroots groups fight to protect Durham tenants from eviction during COVID-19

Since September, tenants nationwide have been partially protected by a recently extended Centers for Disease Control eviction moratorium. But many in North Carolina continue to struggle paying rent, accessing rental assistance and staying afloat. Some face different forms of or “extrajudicial” evictions unprotected by the CDC moratorium, advocates for tenants’ rights say.

Despite these challenges, legal aid organizations have stepped in to help tenants fight eviction, and tenants have come together in collective grassroots organizing.

The saga of eviction moratoria and court closures amid the coronavirus pandemic began more than a year ago in March 2020. As a way to slow the spread of COVID-19, North Carolina Supreme Court Justice Cheri Beasley halted eviction proceedings in the state mid-March, ceasing new writs of possession and delaying pending writs. From March until June, a convergence of local, state and federal policies stopped the majority of evictions, during which fewer than 4,000 evictions per month in the state were filed—down from the typical 15,000.

The next eviction moratorium under the CDC began Sept. 4. Two days before it was set to expire March 31, it was extended three more months to June 30, temporarily preventing what many believed would be a sudden spike in eviction cases.

Unlike earlier protections, the current CDC moratorium only protects tenants against eviction for nonpayment of rent. It doesn’t protect against other types of evictions, including holdover evictions—in which the landlord chooses not to renew the tenant’s lease at the end of its term—or breaches of lease. 

These other types of evictions have been on the rise in recent months, said Peter Gilbert, a lawyer with Legal Aid of North Carolina, which had provided assistance to tenants facing possibly illegal eviction. 

Gilbert said that landlords have increasingly resorted to “extrajudicial” means, from sending letters to calling tenants everyday, to try to reclaim unprofitable units. He said that although there have been fewer eviction cases filed in court in the past year due to the various moratoriums, there have been “many thousands of families in jeopardy of losing their homes because they can’t pay their rent.” 

Though the moratoria have been necessary, they didn’t forgive or assist with rent, Gilbert said: All they did was delay.

Rental assistance didn’t come until later. Durham allocated almost $1 million for rental assistance in late August through the CARES Act, but that funding dried up quickly. Housing Opportunity to Prevent Evictions (HOPE), a statewide rental assistance program, opened in October and closed three weeks after launching. It had received over 42,000 applications.

Gilbert argued that the rental assistance has been “woefully inadequate” and most tenants who have been assisted through the programs “still owe rent and are still in jeopardy of eviction.”

Dustin Engelken, government affairs director of the Triangle Apartment Association, said that many landlords agreed that rental assistance was “late in coming.” He argued, however, that once rental assistance came, the moratoria became counterproductive, giving tenants a false sense of security that they ultimately wouldn’t be responsible for the costs owed.

The high demand for rental assistance has also caused backlogs in many programs, leaving thousands of NC tenants  unsupported. At the end of February, just over 30% of the HOPE program’s funds had been allocated. Because of these backlogs, the moratorium is just “buying time for people,” said Jesse McCoy, supervising attorney for the Duke Law Civil Justice Clinic.

McCoy said that soon, “buying time isn’t always going to be effective anymore.” Once the moratorium ends and courts start hearing eviction cases again, eviction cases will “snowball because they need to be scheduled and just haven’t been heard,” he said.

He wrote in an email that there is currently no way to quantify “the gravity” of this snowball. Some tenants are represented by lawyers, while others are not; some were successful in accessing rental assistance, while others were not, and these numbers are impossible to predict. However, he wrote that data estimates about 435,000 people at risk of eviction statewide.

“There are new filings coming in now, but there are also a host of cases that have been lingering since last summer that will be getting rescheduled for hearing now that the moratoria is ending,” McCoy wrote. “The Duke Civil Justice Clinic has some percentage of those cases. Legal Aid has a larger percentage of cases. But there are even more tenants being evicted than either of our offices have because only so many of them actually get to an attorney.”

McCoy wrote that he hopes with the three additional months of moratorium, “we can connect even more tenants to rental assistance resources and reduce the flood of evictions even more.”

‘Bigger problems than eviction’

McCoy and Gilbert said that overall, the pandemic hasn’t significantly altered their mission at their respective organizations. “Evictions are evictions,” McCoy said. “If we can save somebody from being evicted today, that’s what we do.”

However, during a pandemic, the stakes of an eviction are higher.

“You can't stay home if you don't have one, so when we're all under these stay-at-home orders for our and everyone else's safety, the consequences of an eviction were really scary for folks,” Gilbert said. 

Additionally, as a result of the pandemic, McCoy noted that many of his clients have been dealing with “much bigger problems than eviction.” Many became at least temporarily incapacitated due to COVID-19 quarantining or diagnoses, and as a result lost wages or their jobs.

“I want to make sure I'm sensitive to what the average person who is trying to work, take care of their kids and survive as best they can during the pandemic is dealing with,” he said. “I think people have exercised tremendous Herculean effort to try to make it work. It's just that the deficit is too high, it's no fault of your own, hours at work got cut... It's just a lot.”

Gilbert added that the amount that tenants are behind in this year is “many times larger than what was in a typical year.”

“In a typical year, many landlords file the same month you're late, so it's one month's rent that you owe when you're seeing a case in court for eviction…” he said. “But now, many of our clients are coming up on 12 months’ rent. Some of our clients owe an excess of $10,000, which is not ever going to be realistic for them.”

The large majority of Legal Aid’s cases have been for these tenants, helping them take advantage of legal rights like the CDC moratorium, identify available rental assistance programs and negotiate with landlords to keep them in their homes, according to Gilbert. 

McCoy said that for clients who aren’t in a position to pay off the deficit, his advice is to “enjoy your time until it’s time to go” and hope that rental assistance programs come through before that time comes.

“If you don't have money to pay them, you likely don't have money to go anywhere. If you do have money and the landlord is not willing to accept it because it's less than what's owed, you need to be planning what your next move is going to be. Because at some point, this [moratorium] is going to end,” he said. “When it’s over, take your funds and go to a new place. There may very well be negative marks on your credit, but you have to pick and choose what you want your battle to be. Are you battling for a great credit score? Or are you battling for a place to have a roof over your head during a pandemic?”

McCoy added that the people who have been struggling during the pandemic are the “folks that we go to church with, the folks that cut your hair, serve your food.” Despite all the sad stories, he said that what he rarely hears are complaints.

“It’s always, ‘Whatever it is, I’ll figure it out; whatever it is, I’ll pray on it.’ Whatever it is, they’ll get up and go to work, do everything they’re supposed to do, just to get screwed because the system doesn’t want to care,” he said.

Landlords have also been financially impacted by the pandemic. Tenants’ inability to pay rent due to the economic shutdown severely affected business cash flows and other costs, Engelken said. Paycheck Protection Program loans for landlords were a hit or miss, he added, as many self-managed landlords or smaller companies with few employees were not in a position to take advantage of the loans.

Evictions of a different kind

Gilbert said that although nearly 80% of Legal Aid’s cases usually involve litigation, more than half of their cases this year have not been filed in court. Some of these cases are more complex, in which the landlords have resorted to “extrajudicial means to try to get the tenant out,” he said.

“We’ve seen landlords turning to whatever means they can—sending letters every day, calling their tenants every day, just trying to demand that they move out to get possession back of these units,” Gilbert said. “It’s really been a very challenging and very stressful year for many tenants and for tens of thousands of families.”

Engelken said that he isn’t aware of any of the 1,100 members in the Triangle Apartment Association engaging in such practices, though he said as a broader trend, “it’s entirely possible.” 

“You always hear horror stories about people acting unscrupulously,” he said.

Gilbert added that since the current CDC moratorium only covers nonpayment of rent, Legal Aid has increasingly seen evictions for “all sorts of other things besides nonpayment.”

“Now, we're seeing landlords look for any other possible reason that can come up with. These other cases used to be much less common, and now they're routine,” he said.

New tactics include holdover evictions, where landlords decide not to renew a tenant’s lease at the end of its term, and evictions for trivial breaches of the lease, such as letting renter’s insurance lapse, Gilbert said. 

McCoy affirmed that holdovers have grown in popularity as a means to sidestep the CDC moratorium. He has also seen a few lease breach cases where “it’s really just an attempt to try to get someone removed because they haven’t paid the rent,” he said.

Engelken said that though this trend is “certainly possible,” he hasn’t seen any data on this and declined to make a judgment. He instead emphasized that nobody—including landlords—wants to file evictions.

“There's a misconception that landlords make money on evictions when, quite to the contrary, you lose money,” he said. “We've always been trying as an association to find ways to minimize the importance of evictions and to find ways to work with tenants and groups to avoid that worst-case outcome because it's bad for everybody. During COVID, it's taken on an entirely new life: It was a bad thing before, and then you're putting people into a public health situation where it really is a last resort.”

Engelken added that since the beginning of the pandemic, landlords have been actively advocating for rental assistance and helping tenants through rental assistance application processes. Some have forgiven rent or worked out payment plans with tenants, he said.

Nonetheless, evictions play an important role in the contract process, as it’s the “only bit of leverage that a landlord has to recoup and protect their investment,” he said. Therefore, Engelken argued that an eviction moratorium, much of which came with no rental assistance, “was not the right approach.”

He added that eviction moratoria were something “nobody understood the CDC to have authority in.”

“It was unprecedented. The landlord-tenant law system, the system of contracts and leases, it's a very well-developed and well-regulated system. And there are expectations of both landlords and tenants that are clear in the contract. So, the idea that an unelected bureaucrat with ambiguous authority over the matter could step in and alter the entire contract system is fundamentally unnerving to the market,” Engelken said.

Issues that predate the pandemic: Challenges and silver linings

McCoy and Gilbert explained that Durham’s evictions crisis—along with the factors that create it and its impacts on families and communities—predates the COVID-19 pandemic. McCoy said that no matter where you go, the same peopleare getting evicted.

“They’re people who look like me,” said McCoy, who is Black. “It doesn’t matter if we are only 10% of the population—we’re going to be 80% of the eviction cases.”

COVID-19 merely exacerbated the problem and expanded the number of people impacted. One of his biggest frustrations has been seeing the difference in the government’s response to evictions now that COVID was no longer a “low-income issue, but crept into a middle-class issue,” McCoy said.

“When people who don't look like me start getting impacted as well, now we can find money for relief, now we can find a moratorium. It can be frustrating for people in the community who are like, we've been asking for this forever, and nobody wants to present it.”

He added that despite this, COVID-19 has helped to “shine a light” on the issues and trends that are going on.

Gilbert shared that the pandemic brought on many organizational challenges for Legal Aid, including having to interact with clients virtually, which has made it difficult to understand the client’s goals and experiences and effectively advocate for them.

Nonetheless, he agreed that the pandemic has brought greater awareness to the existing evictions crisis. “There’s no restoring the veil of ignorance. It’s been lifted,” Gilbert said. He added that COVID-19 has spurred greater organizing and community amongst tenants.

“I think people are now more aware. If anything good has come out of the pandemic, it's that. It’s also organizing by tenants and folks coming together to recognize that they can collectively have more influence, that this is not an individual problem,” Gilbert said. “When you're facing an eviction, like many other consequences of poverty is there's a tendency to personalize it and feel like it's a personal failure. COVID has exposed that this is not a personal failure by any of these families. This is a systemic failure by our entire society to provide a basic need, which is housing.”

Tenants coming together

Bull City Tenants United came together in response to the COVID-19 pandemic in late August. The organization, which aims to build tenant power and grassroots activism, emerged from the Lakewood Community Project, a group of Durham residents exploring alternative models to community safety. It is a fully volunteer-run organization.

“The goal is to form many tenant unions around the city so that people can be organized,” said Stephanie Porter, a member of BCTU’s media team. “There's an imbalance of power between tenants and landlords, so the goal is to address that balance and give tenants more power to determine their housing.”

In recent months, BCTU’s main activities have focused on the Garden Terrace Apartments in Durham’s Lakewood neighborhood, where residents formed the Garden Terrace Tenants Union in December. Porter said that the union has been fighting for a collective lease, which is similar to a collective bargaining agreement in labor unions.

The lease would be held among all tenants and they would bargain with the landlord in order to change it, as a way to hold landlords accountable, Porter said. The lease would guarantee fair and stable rent, prompt repairs and prevent unfair evictions.

In addition to building up the union at Garden Terrace, BCTU has also held eviction rallies and demonstrations and called public officials to prevent individual tenants in Durham from being evicted. In August, for example, they held a phone zap targeting the sheriff and courts to demand “no evictions during COVID.”

Porter said that part of what has sustained the organization is how passionate and caring the leaders and tenants are for each other.

“The leaders are always saying, ‘if she gets evicted, then it could just be one of us next.’ We have to solve this problem as a whole,” she said. “Because of the solidarity that exists, there’s some protection because if one is facing eviction, we get the community to rally around that and stop it from happening,” Porter said.

Although the pandemic brought the group together, Porter said that the goal is to have BCTU persist after it ends. She said that there are so many other problems inherent in the power imbalance between landlords and tenants “that won’t go away and are not just caused by the pandemic.”

“The goal is to just continue organizing people as much as possible so that they have a stake and a say in what happens to their housing,” Porter said. “Because I think if people are just left as individuals, it's a lot harder to have power against someone like your landlord, or to have some say.”

Mona Tong is news editor.

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