LPE on COVID (vol 2)

Today we’re reposting a letter from Professor Noah Zatz to his City Counsel regarding evictions during the pandemic:

Dear City Council — Thank you for all the hard work going into responding to the COVID-19 crisis locally, both by you and City staff. I hope you each are safe and secure. I wanted to write briefly about the eviction moratorium issue. Some of the specific questions raised by the moratorium are those that are central to my academic expertise in antipoverty & social insurance policy design (unlike housing in general, on which I speak merely as a well-informed resident). I hope this analysis drawing on that expertise is useful to the City. I am writing quickly, so apologies for any incompleteness or errors.

The bottom-line is this: Although it is well-intentioned and makes some sense in theory, the attempt to limit the moratorium to COVID-19-impacted individuals will likely make it almost completely useless in practice. I urge you to adopt an across-the-board eviction moratorium even if you are motivated only by ensuring protection for COVID-19-impacted households.

There are three key pieces of the restriction that work together to produce this result:

  1. a) the burden is placed on the tenant to establish the defense (“if the tenant is able to show”),
  2. b) the protection is limited to an “inability to pay rent,” and
  3. c) the protection is further limited to such an inability “due to circumstances related to the COVID-19 pandemic.”

First, remember that we are imagining someone who not only faces the restrictions, shutdowns, health, and social isolation imperatives that all of us are struggling with, but who also–by definition–is facing severe economic distress. This person now has to go to court to prove a defense, collect documentation, contact witness or sources of documentation, etc. When doing so, they cannot be working, caring for their family (kids home from school, etc.). What a nightmare.

Second, “inability to pay.” This concept is central to my decades of academic work on antipoverty policy. It is a morass, totally unsuited to first-time deployment during an emergency between litigants of unequal power. Is someone “unable to pay” if they have no present income but could exhaust retirement savings to pay one month of rent? What if they have to choose between paying rent and medical care? Food? Fixing their car? In some sense, one could say, “they have the money!” But is that what you mean? If not, what do you mean? Could anyone know in advance? How would a landlord litigate this? Is someone unable to pay if they could ask for money from someone who is not on the lease? What if they could close the gap by picking up some gigs with Task Rabbit?  Again, imagine the documentation/proof issues.

Third, “due to circumstances related to the COVID-19 pandemic.” Again, the kind of issue central to disaster relief programs, unemployment insurance, and the like. What if someone fell behind on their rent LAST month — not due to COVID-19 — but now THIS month is unable to make up the gap b/c COVID-19? Imagine all the proof and line-drawing issues with the concept of “due to.” Is every layoff in LA County Since March 1 due to COVID-19? If not, how are we to find out which ones are? Is it by industry? What if the industry is not severely affected, but the boss shut down the company voluntarily to protect the workers? If the boss’ mother got sick, and so the boss decided to shutdown? If the worker loses their job b/c they are caring for a child dismissed from school, is THAT due to COVID-19? What if it’s not their child, but their sister’s? Again, imagine the documentation/proof issues.

Note that all of these severe problems apply even if you focus narrowly just on the people intended to be protected by this moratorium. Obviously, there are also very serious broader questions about whether this is a time for ANYONE to be forced to try to fight an eviction and potentially need to find emergency housing during a crisis (especially no-fault evictions). But even if you are unmoved by those problems, in practice this moratorium is likely to fail to protect even those narrowly targeted by it. Under these circumstances, the only way to protect them is to protect everyone.

I doubt that this is the time (if ever!) when you are interested in reading an academic law review article, but in case you are interested in seeing (or verifying) my work in this area, here is the link to my essay “Poverty Unmodified: Critical Reflections on the Deserving/Undeserving Distinction”: https://www.uclalawreview.org/pdf/59-3-3.pdf.

I understand that there may have been limitations on what could be done by emergency order (though I do not know), but if a universal moratorium cannot be issued by emergency decree, I urge the Council to immediately pass a universal moratorium ordinance. Thank you again for all your efforts at an incredibly difficult time. I hope you find this analysis to be helpful to your deliberations.

Sincerely,

Noah Zatz