The National Housing Law Project (NHLP) has produced several resources for tenants and advocates to help address the coronavirus pandemic. They include, “Tenant’s Rights and COVID-19,” “Summary and Analysis of Federal CARES Act Eviction Moratorium,” “Reasonable Accommodations and Disability Discrimination in the Context of COVID-19,” and “Enforcing Eviction Moratoria: Guidance for Advocates.”
“Tenant’s Rights and COVID-19”
Webinar slides from an April 7 presentation, “Tenant’s Rights and COVID-19,” highlight a number of eviction topics, including: federal protections, state and local protections, best practices for state and local moratoriums, and reasonable accommodations for people with disabilities. It also touches on utility shut-offs and emergency relief for homeowners with mortgages.
“Summary and Analysis of Federal CARES Act Eviction Moratorium”
NHLP also summarized federal eviction moratoriums in the “CARES Act” for tenants living in certain types of housing. The federal eviction moratorium took effect on March 27, 2020 when it was signed into law and extends for 120 days.
The eviction moratorium restricts lessors (those who hold someone’s mortgage) on a “covered property” from filing new eviction actions for nonpayment of rent. The moratorium also prohibits charging fees, penalties, or other charges to the tenant related to nonpayment of rent. The federal moratorium also provides that a lessor may not evict a tenant after the moratorium expires except after 30 days’ notice – which may not be given until after the 120-day moratorium period.
The Act defines a “covered property” as a property that: (1) participates in a “covered housing program” as defined by the Violence Against Women Act (VAWA); (2) participates in the “rural housing voucher program under section 542 of the Housing Act of 1949”; (3) has a federally backed mortgage loan; or (4) has a federally backed multifamily mortgage loan.
VAWA-covered housing programs include:
Public housing
Section 8 Housing Choice Voucher program
Section 8 project-based housing
Section 202 housing for the elderly
Section 811 housing for people with disabilities
Section 236 multifamily rental housing
Section 221(d)(3) Below Market Interest Rate (BMIR) housing
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Housing Opportunities for Persons with AIDS (HOPWA)
McKinney-Vento Act homelessness programs
Section 515 Rural Rental Housing
Sections 514 and 516 Farm Labor Housing
Section 533 Housing Preservation Grants
Section 538 multifamily rental housing
Low-Income Housing Tax Credit (LIHTC)
NHLP notes that the national Housing Trust Fund (HTF) is not covered by the VAWA statute, even though HUD did extend its VAWA rulemaking authority to cover the HTF.
The evictions moratorium also extends to “the rural housing voucher program under Section 542 of the Housing Act of 1949.” The separate inclusion of this program was necessary because the Rural Housing Voucher Program was omitted from the covered housing programs in the 2013 VAWA reauthorization statute.
Properties with certain federally backed multifamily mortgage loans that may receive forbearance must respect identical renter protections for the duration of the forbearance. It is theoretically possible that a loan forbearance could extend beyond 120 days.
For programs that fund units (rather than tenant-based subsidies), advocates can use resources such as the National Housing Preservation Database to determine what type of housing a client is living in.
“Reasonable Accommodations and Disability Discrimination in the Context of COVID-19”
This paper provides an overview of the relationship between COVID-19 and the ability of tenants with physical disabilities to obtain reasonable accommodations regarding their housing. A reasonable accommodation is a change in a rule, policy, practice, or service that may be necessary to allow a person with a disability the equal opportunity to use and enjoy a home. Failure to provide a reasonable accommodation may be considered disability discrimination. A housing provider must grant a requested reasonable accommodation if it is necessary to accommodate the disability and does not create an undue financial or administrative burden.
The paper cites the definition of a person with a disability according to the “Fair Housing Act Amendments.” Based on the definition, NHLP concludes that falling ill, being exposed to, or being regarded as having COVID-19 should be categorized as a disability for reasonable accommodation purposes. Therefore, any manifestation of a tenant’s (or associated person’s) COVID-19 condition that threatens a tenancy would potentially be subject to reasonable accommodation. This could include an accommodation for a tenant who fails to pay rent or other tenancy-related charges because the person cannot work due to infection with COVID-19.
COVID-19 accommodation requests for payment plans to cure rent arrearages, or waiver of late charges may be warranted. Other examples of COVID-19-related accommodations include: extensions of deadlines to complete yard work or other household maintenance, acceptance of belated recertification paperwork, or appointment of another person to handle the tenant’s affairs during the illness.
The paper has a sample COVID-19-related reasonable accommodation request letter.
“Enforcing Eviction Moratoria: Guidance for Advocates”
This paper provides an analysis of the federal CARES Act eviction moratorium, along with practice strategies and arguments for lawyers representing tenants in eviction defense cases using the federal moratorium and state or local eviction moratoria.
Since the onset of the coronavirus pandemic, many cities, states, court systems, sheriffs’ departments, and other local government entities have established moratoria covering various parts of the eviction process. This patchwork of federal, state, and local eviction moratoria does not extend to every type of tenancy, eviction, or step of the eviction process in every jurisdiction. Therefore, an attorney’s first step in defending an eviction matter during the pandemic is likely to be to determine whether the eviction may be barred by any applicable moratoria.
The paper explains in detail the federal moratorium established by the CARES Act (see simple description above). The paper discusses how to determine whether a property is one covered under the CARES Act moratorium, which can be difficult. Also discussed is the fact that the federal moratorium only prevents evictions for nonpayment of rent or other fees; it does not cover evictions based on “pay-or-vacate” notices, for example. Advice about state or local eviction moratoriums is offered, including what types of tenancy and eviction cases should apply, and the steps in an eviction process subject to a moratorium.
“Tenant’s Rights and COVID-19” is at: https://bit.ly/2XqLC9e
“Summary and Analysis of Federal CARES Act Eviction Moratorium” is at: https://bit.ly/2Ur4G5t
“Reasonable Accommodations and Disability Discrimination in the Context of COVID-19” is at: https://bit.ly/3b2H6BO
“Enforcing Eviction Moratoria: Guidance for Advocates” is at: https://bit.ly/3eeq7ym
NHLP has additional resources, including an ongoing summary of state and local moratoriums and best practices at: https://bit.ly/33U437y