August 30, 2021 FEATURED ARTICLE

Access, Asymmetries, and Eviction Diversion: The Eviction Crisis COVID-19 Forced America to Confront

by Olivia Choi, Spring/Summer Intern, Columbia University Class of 2023

On July 31, the Centers for Disease Control and Prevention’s 11-month nationwide eviction moratorium expired after its fourth extension, placing millions of Americans at risk of housing loss. Following widespread public pressure, the Biden administration ordered an additional moratorium on August 3.  The Court’s 6-3 decision in Alabama Association of Realtors v. Department of Health and Human Services just 23 days later, however, overturned the moratorium as unconstitutional.

With millions of Americans now at risk of eviction, the United States finds itself facing a national reckoning as it regards its longstanding—and deeply systemic—housing crisis.

America’s Eviction Crisis

America’s eviction crisis is far from new. The nation currently averages over 1 million evictions and greater than 3 million eviction filings per year, independently of the coronavirus pandemic. To place this data point in context, the United States tracked just over 1 million foreclosures at the peak of the financial crisis in 2010.  In 2016, 3.7 million eviction filings were made by landlords across the country, an average of seven per minute.

In addition to housing displacement, eviction precipitates a whole host of adverse consequences, such as job loss, reduced credit access, and mental health repercussions including depression and suicide. For children, the frequent disruption caused by housing instability induces low academic performance, behavioral problems, high dropout rates, and decreased future income opportunities.  Eviction has additionally been linked to health complications among mothers, such as low birth weight and infant mortality.

Moreover, an eviction record will effectively preclude tenants from future housing prospects, as both landlords and affordable housing programs alike will refuse to accept tenants with an eviction history darkening their record.  An eviction notice alone, regardless of case outcome, is enough to inflict lasting damage. Eviction filings will remain on a tenant’s credit report for seven years, even if the court ultimately rules in the tenant’s favor.  In this way, eviction effectively perpetuates the cycle of poverty.  

The consequences of eviction become only more dire in light of the fact that eviction most acutely afflicts populations already prone to systemic oppression. Low-income communities of color—and particularly, Black and Latina women—are evicted at inordinate rates compared to their counterparts.  Domestic violence survivors additionally suffer the effects of 911 “nuisance” laws, which incentivize landlords to evict tenants linked to disruptive behavior. 

Nonetheless, the record unemployment and otherwise heightened financial hardship brought on by the coronavirus pandemic doubtlessly exacerbated the existing eviction crisis. At present, the Aspen Institute estimates that as many as 15 million Americans are behind on rent, placing them at legal risk of eviction. Collectively, this amounts to over $20 billion in unpaid rental payments.  It is no surprise that communities of color are hardest hit, with Black, Latino, Asian, and indigenous households disproportionately likely to be behind on rental payments.  

Furthermore, while moratoria protect tenants from eviction, they do not obviate the responsibility to pay rent. Data from Princeton University’s Eviction Lab reports that eviction claim amounts have increased dramatically as a result of the coronavirus pandemic. Averages in December 2020 alone, for example, reached $4,650, more than three times median rent.  As predominantly low-income tenants fall further behind on their monthly rent payments, impending claims become increasingly impossible to pay.

Power Asymmetries in Eviction Proceedings

Landlord-tenant disputes are fundamentally asymmetrical. In addition to commanding greater financial resources, landlords wield the pivotal leverage of an eviction threat, which often drives tenants to consent to agreements contrary to their own interests. Furthermore, landlords overwhelmingly possess access to counsel in eviction proceedings, while tenants, most often owing to financial constraints, are forced to go without. Currently, 90 percent of landlords have legal representation in eviction proceedings while just 10 percent of tenants can say the same. 

The instrumental role of legal representation in eviction proceedings may hardly be overstated. In Minneapolis, for example, 96 percent of tenants with full representation won or settled their cases, rates over 30 percentage points higher than those without. Tenants with full representation were additionally more likely to keep their housing and enter favorable agreements.  A study by the Philadelphia Bar Association furthermore finds that tenants without access to counsel were forcibly displaced from their homes 78 percent of the time, compared to just 5 percent of those possessing legal representation.  Aside from preventing eviction, access to counsel can benefit tenants by assisting them in keeping their records clear, arranging more generous moveout timeframes, renegotiating money owed, and applying for rental assistance. 

In 2017, New York City became the first city in the country to develop a Universal Access to Legal Services Law, which requires access to counsel for all tenants in housing cases. Since then, San Francisco, Newark, and a number of other jurisdictions have followed suit – a positive sign for tenants’ rights advocates

Despite the often adversarial nature of eviction cases, however, an eviction ruling is ultimately in neither party’s interest. Evictions are not only time-consuming, but incur steep costs for both landlords and tenants. While financial damages to the tenant need not be restated, landlords, too, often sustain sizable costs through lost rent, attorney expenses, and filing fees. In Boston, it is estimated that the average eviction costs $6,000 for landlords and $10,000 for the Boston Housing Authority.  Given this reality, it is in the best interest of both parties to arrive at a mutually favorable agreement. 

A Step in the Right Direction: Eviction Diversion Programs

Given the lasting and deeply injurious consequences of eviction, experts agree the path forward is clear: prevent the eviction filing altogether. 

Eviction diversion programs are voluntary mediation mechanisms intended to replace the court’s formal legal processes through arbitration and negotiation. By entirely avoiding the eviction filing, these programs prevent the deleterious and often irreversible consequences of eviction records. In most jurisdictions, eviction diversion programs combine some form of legal counsel, emergency rental assistance, social services, and other tenant support mechanisms. To date, the Urban Institute has identified 47 such programs at the state and local level across the country. 

Although their objective is to avoid a formal court hearing, many eviction diversion programs may be housed within the court system or otherwise receive support from judicial entities. Ingham County’s 55th District Court Eviction Diversion Program, for example, is a multi-party collaboration between the court and the Michigan Department of Human Services, Volunteers of America, Capital Area Community Services, and other community social service organizations. Together, these entities cooperate to resolve landlord-tenant disputes without a court hearing. 

Other jurisdictional programs, such as the City of Philadelphia’s Eviction Diversion Program, make use of an external, court-adjacent mediation process.  The program, like many others, is entirely voluntary and takes careful measures to equalize, rather than aggravate, landlord-tenant power imbalances. The tenant must be provided with a Notice of Tenant Rights prior to consenting to join the program and will subsequently be assigned a city-funded Housing Counselor to advise them. The Housing Counselor may assist the tenant in other necessary actions, such as rental assistance and unemployment filings. Since its founding in September of 2020, the program has found resounding success. Philadelphia has found that, when both landlords and tenants are present, parties reach agreement in over 70 percent of cases.

While many eviction diversion programs were introduced to address the short-term circumstances of the COVID-19 pandemic, many have advocated for the widespread development of eviction diversion programs as permanent resolution entities. In a White House press statement, the Biden administration articulated its unmitigated support for the establishment of eviction diversion programs in jurisdictions nationwide. In a letter to the nation’s state court administrators, Associate Attorney General Vanita Gupta recommended the development of long-term, robust eviction diversion programs across the country. 

Aligning Stakeholder Interests

A key component of effective eviction diversion programs is the alignment of stakeholders’ metrics of success. It is of critical importance to identify and align stakeholder interests early on to avoid further exacerbating power disparities at the expense of the tenant. As a joint study by Harvard Law School’s Dispute Systems Design Clinic and the American Bar Association notes, despite having multiple definitions of success, stakeholders’ objectives do not fundamentally conflict. Notably, both tenants and landlords share the objective of “housing stability” in their definition of success. 

In order to best represent parties’ interests, the ABA-Harvard study recommends that any dispute resolution system integrate community input into its design—what Georgetown University Law Center’s Carrie Menkel-Meadow calls “bottom-up sensitivity,” in place of “top-down” management by institutional and government actors.  At present, around 52 percent of current eviction prevention or diversion programs report consulting affected communities when undertaking program design. 

Furthermore, experts call for eviction diversion programs to develop from multi-sectoral coalitions of government agencies, legal representative entities, and nonprofit social or advocacy services. This diverse integration of agencies forms what researchers refer to as a “three-legged stool,” which best represents party interests without bias towards a given side. 

Conclusion

COVID-19 ultimately did not create America’s eviction crisis. Doubtlessly, it exacerbated the already dire consequences presently felt. The structural failings which the pandemic brought to the surface, however, are ongoing, and demand deeper reaching reform mechanisms. 

Eviction moratoria are indisputably essential to keeping Americans safe and housed as the coronavirus pandemic progresses. The much more long-term work of amending a profoundly asymmetrical system, however, has yet to be seen. Universal right-to-counsel laws and eviction diversion programs are a positive, but long overdue, step towards permanent change. 

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