Stay At Home: Rethinking Rental Housing Law in an Era of Pandemic

Georgetown Journal on Poverty Law and Policy

Volume XXVIII, Number 1, Fall 2020

1

ARTICLES

Stay at Home: Rethinking Rental Housing Law in

an Era of Pandemic

Shannon Price*

For more than a decade, scholars across disciplines have documented

housing insecurity as a chronic condition of working poverty in the United

States. Now, the COVID-19 economic crisis threatens a tsunami of pandemic-

induced evictions. Widespread government mandates to “stay at home” ring

hollow as eviction filings pile up in local courts, while tenant blacklisting

ensures that the consequences of an eviction today will haunt a tenant for years.

By offering an in-depth survey of lease-termination requirements and the

role of housing conditions and retaliatory eviction across states, this Article

illustrates the practical impact of subtle variations in landlord-tenant law on

poor tenants facing eviction. It reviews a sampling of state housing policy

responses to the pandemic and proposes concrete reforms to the law designed

to mitigate power imbalances between landlords and tenants and slow the cogs

of the Eviction Economy.

The COVID-19 pandemic is a tragedy of unprecedented scale. It is also a

call to action. The decisions that state and local governments make on housing

policy in the coming months will alter the course of thousands of lives.

America’s Eviction Economy stands to compound the worst economic effects

of the pandemic. It is the sincere hope of the Author that state and local

governments do not allow this result.

* Shannon Price, J.D., is a 2020 graduate of Yale Law School with previous publications including:

Shannon Price, Remembering the CLASSICS: Impact of the CLASSICs Act on Memory Institutions, Orphan

Works, and Mass Digitization, 26 UCLA ENT. L. REV. 79, 80-113 (2019); John Fabian Witt, Ryan Martins,

and Shannon Price, Contract’s Revenge: The Waiver Society and the Death of Tort, 41 CARDOZO L. REV.

(forthcoming 2020). Ms. Price worked as a Law Student Intern in the Evictions Track of the Yale Housing

Clinic for two years and is a recipient of Yale Law School’s C. LaRue Munsen Prize for excellence in the

investigation, preparation, and presentation of a civil case under clinical supervision. In particular, Ms.

Price would like to thank her supervisor with the Housing Clinic, Attorney J.L. Pottenger, Jr., for his

immense dedication to the Clinic and to his students. Not only did Attorney Pottenger teach the A uthor

everything she knows about housing law—but his tireless advocacy has undoubtedly changed the lives of

thousands of low-income tenants across the state of Connecticut. © 2021, Shannon Price.

2 The Georgetown Journal on Poverty Law & Policy [Vol. XXVIII

I. INTRODUCTION ................................................................................................... 2

II. BACKGROUND & LEGAL FRAMEWORK ............................................................. 5

A. Lease-Termination Requirements ................................................................. 8

B. Role of Conditions and Retaliatory Eviction ................................................ 9

III. WISCONSIN: A “CONTRADICTORY” APPROACH ............................................. 11

A. Eviction in Wisconsin .................................................................................. 11

1. Lease-Termination Requirements ........................................................... 12

2. Conditions Standards and Retaliatory Eviction ....................................... 13

IV. OHIO: A “PRO-BUSINESS” APPROACH ........................................................... 15

A. Eviction in Ohio .......................................................................................... 15

1. Lease-Termination Requirements ........................................................... 16

2. Conditions Standards and Retaliatory Eviction ....................................... 16

V. MINNESOTA: A “PROTECTIONIST” APPROACH ............................................... 18

A. Eviction in Minnesota ................................................................................. 18

1. Lease-Termination Requirements ........................................................... 19

2. Conditions Standards and Retaliatory Eviction ....................................... 20

VI. THEMES, TRENDS, AND COVID-19 RESPONSES ............................................ 21

A. Choices Made and Paths Not Taken ........................................................... 21

B. Housing Policy Responses to COVID-19 .................................................... 23

C. Feasible Reforms ........................................................................................ 27

1. Extended Termination Notice & A Strong Right to Cure ....................... 27

2. Reducing the Impact of Tenant Blacklisting through Record Sealing

and Expungement ................................................................................. 29

3. Removing Legal Obstacles to Housing Conditions Litigation and

Preventing Retaliatory Eviction ............................................................ 31

VII. CONCLUSION ................................................................................................. 33

I. INTRODUCTION

The coronavirus disease (COVID-19) is ravaging the United States economy.

In May 2020, unemployment hit 14.7 %, heralded by the New York Times as “the

worst devastation since the Great Depression.”1 Housing stands at the center of the

COVID-19 policy storm. More than thirty states imposed some form of eviction

moratorium in the first months of the crisis, while the federal government

intervened first through the Coronavirus Aid, Relief, and Economic Security

(CARES) Act, then through a Centers for Disease Control (CDC) nation-wide

1. Nelson D. Schwartz, Ben Casselman & Ella Koeze, How Bad Is Unemployment? ‘Literally Off

the Charts,’ N.Y. TIMES (May 8, 2020),

https://www.nytimes.com/interactive/2020/05/08/business/economy/april-jobs-report.html.

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o. 1] Rethinking Rental Housing Law in an Era of Pandemic 3

moratorium on nonpayment evictions.2 Local governments and courts have also

jumped into the fray, with law enforcement offices refusing to execute writs of

restitution and judges staying eviction hearings indefinitely.3

Media coverage of these unprecedented measures risks overlooking a crucial

fact: unlike the COVID-19 pandemic, America’s “Eviction Economy” is nothing

new. 4 For more than a decade, scholars across disciplines have documented

housing insecurity and systemic eviction as a chronic condition of working poverty

in the United States.5 Their warnings of surging rent burdens for poor households

and the long-term consequences of forced moves have gone largely unheeded.

Eviction is causally linked to homelessness,6 mental health problems,7 increased

material hardship,8 future job loss,9 and long-term health issues.10 Nonetheless,

this once-rare event is now commonplace. Available data suggests that millions of

Americans were evicted each year pre-COVID 19.11 As unemployment climbs

quite literally “off the charts,” this number is sure to rise.12

America’s Eviction Economy assumes—and in fact relies upon—consistent,

forced turnover of severely rent-burdened tenants. At its core lies a chronic

2. Alana Semuels, Renters are Being Forced From Their Homes Despite Eviction Moratoriums

Meant to Protect Them, TIME (Apr. 15, 2020, 2:47 PM), https://time.com/5820634/evictions-

coronavirus/; Federal Register Notice: Temporary Halt in Residential Evictions to Prevent the Further

Spread of COVID-19, CTRS. FOR DISEASE CONTROL & PREVENTION (Oct. 9, 2020),

https://www.cdc.gov/coronavirus/2019-ncov/COVID-eviction-declaration.html.

3. Kristin Boose & Robert McEvoy, Current Landscape of Eviction and Foreclosure Relief

Measures in Response to COVID-19, JDSUPRA (Apr. 6, 2020),

https://www.jdsupra.com/legalnews/current-landscape-of-eviction-and-51206/.

4. The term “Eviction Economy” was coined (to this author’s knowledge) by David A. Dana in An

Invisible Crisis in Plain Sight: The Emergence of the "Eviction Economy," Its Causes, and the

Possibilities for Reform in Legal Regulation and Education, 115 MICH. L. REV. 935, 935 (2017). Dana

defines the Eviction Economy as “an economy in which eviction of the poor is not exceptional, but rather

the norm, part of landlords’ business models and poor people’s way of life,” and uses the term to refer to

the systematic and cyclical eviction of poor tenants documented in Matthew Desmond’s Evicted, infra

note 21. This Article adopts the term “Eviction Economy” in an effort to emphasize the overlapping

legal, political, economic, and social forces that feed America’s current eviction crisis.

5. See, e.g., Matthew Desmond & Carl Gershenson, Housing and Employment Insecurity among the

Working Poor, 63 SOC. PROBS. 46, 47 (2016).

6. See Martha Burt, Homeless Families, Singles, and Others: Findings from the 1996 National

Survey of Homeless Assistance Providers and Clients, 12 HOUSING. POL’Y. DEBATE 737, 737–80 (2001);

Rudy Kleysteuber, Tenant Screening Thirty Years Later: A Statutory Proposal to Protect Public Records,

116 YALE L.J. 1344 (2007).

7. Mat thew Desm ond & Rachel Tolbert Kimbro, Eviction’s Fallout: Housing, Hardship, and

Health, 94 SOC. FORCES 295, 301-02 (2015).

8. Id. at 311-12.

9. “We estimate the likelihood of experiencing job loss to be between 11 and 22 percentage points

higher for workers who experienced a preceding forced move, compared to observationally identical

workers who did not.” Desmond & Gershenson, supra note 5, at 60.

10. See Desmond & Kimbro, supra note 7, at 318.

11. Difficulty in calculating the exact number of Americans who are evicted stems from both

incomplete documentation of formal evictions and the more-common process of informal evictions.

Estimates by Chester Hartman and David Robinson in Evictions: The Hidden Housing Problem, 14

HOUSING POL’Y DEBATE 461, 461 (2003), suggest that in 2013, one in eight poor renting families were

unable to make rent. Hartman and Robinson’s assertion that the number of Americans evicted each year

“is likely in the many millions” has been borne out by subsequent research. See, e.g., Desmond &

Gershenson, supra note 5, at 48-49.

12. Schwartz et al., supra note 1.