September 2020 Update:
PREVENT YOUR EVICTION during COVID-19 with a simple declaration to your landlord. The Centers for Disease Control have placed a national moratorium on evictions, but you MUST notify your landlord in writing to gain this protection.
New York City has led the nation in responding to the COVID-19 pandemic, but the city has done little to protect people living in its homeless shelters. That is a shame because the next few months will see a dramatic rise in the number of homeless people.
Nationally, there are millions of people waiting for unemployment benefits as a result of the COVID-19 financial crisis, and most of them are renters. Ten million people have filed for unemployment relief in the last two weeks. Many of them won’t be paying April’s rent.
Worse, according to the St. Louis Federal Reserve, 47 million more people could be unemployed by the end of June. That’s a 32% unemployment rate. There may be months of mass non-payment of rent.
Helpfully, there is a federal moratorium on evictions, but it only applies to properties subsidized or financed by the FHA, Fannie Mae, or Freddie Mac. That’s one in four rental properties. There’s also a moratorium on evictions in most states and localities, and spotty bans on water and power shutoffs.
But that’s just kicking the can down the sidewalk. Renters will use their scarce resources to buy food and other immediate needs, instead of paying rent.
Eviction is about to happen to millions of renters who’ve been laid off during the 2020 financial shutdown.
You can fight eviction but it’s hard
The tenant in an eviction case can be tossed into the streets within weeks of being sued. It’s horribly unfair, especially when there’s (usually) a lawyer on the other side.
Eviction cases move quickly because they’re decided in what’s called a “summary procedure” with sharply abridged rights and rules.
A tenant who can’t afford the rent is causing the owner of rental property to lose money each day the rent goes unpaid, so summary procedures are designed for lightning-fast resolution.
But that’s part of the problem with summary procedures. Despite the court’s insistence that it’s neutral and objective, in reality the tenant is assumed to have not paid rent as soon as an eviction case is filed. That means the judge assumes the tenant has broken the rental contract and has no right to possess the property.
What happens to that presumption of liability when the tenant claims an interest in the property? Might they get a decent chance to make their case?
If eviction proceedings were fair, possession alone would give the tenant a property interest. Unfortunately, it usually doesn’t. Perhaps the tenant has improved the property in some way — a major repair, a garden, anything that added value to the place. Or perhaps there’s a way to interpret the lease or rental agreement that gives the tenant additional rights, like in a rent-to-own situation.
Claiming an interest in the property is a bad idea if it’s not true. But getting kicked out of your home, especially in a pandemic, is an even worse idea. There’s no need to play fair in unfair circumstances.
Level the playing field to fight eviction
The beautiful thing about claiming ownership — any interest in the property at all — is that it can no longer be resolved through a summary eviction proceeding.
A magistrate court won’t have jurisdiction over a case involving competing claims to real property.
When you claim an interest in the property, the case gets kicked upstairs to a real court, where litigation can take months (and lots of legal fees billed to your landlord) if you play your cards right.
That will make your landlord think more soberly about any late or lost rent.
I’ve been involved in an eviction case or two, and I’ve witnessed lots of eviction hearings. In my experience, what you don’t want to do as a tenant is to come to court with an explanation for not paying, or a request for more time to move. You’ll be ordered to pack your stuff and pay the landlord back rent plus court costs.
Yes, solid defenses are available to help you fight eviction when you’ve missed a rent payment — uninhabitable dwelling, rent deduction for repairs, waiver, retaliation, perhaps even moratorium. But they’re all hard to argue, and every state has a different set of loopholes.
Even when you have a good defense, there’s no guarantee the judge will hear it. Magistrate judges are notorious for ignoring the law in favor of their own sense of right and wrong.
And if you lose, even with a good defense, you often must post a supersedeas bond (typically the judgment amount) to appeal the eviction and get a real court to hear your case.
But if you could afford a supersedeas bond, you probably wouldn’t be in eviction court.
This is not legal advice
So why not skip the madness and go straight to real court?
I am not a lawyer and I don’t give legal advice, but here’s how I’d fight eviction if I were being kicked out in a pandemic:
Move to dismiss the case for lack of subject matter jurisdiction on the grounds that I’m the rightful owner in possession.
I’d have to allege some facts to back up my claim, which means I’d need to review the relevant case law. And I’d need some evidence, like an affidavit stating I own the property. (Note well: I will face money sanctions or go to jail if I lie to the court, so I’ll try not to do that.)
But a motion to dismiss on those grounds might get the case kicked upstairs at no cost to me, and I can fight eviction with some rules of civil procedure.
Then we’ll see if the landlord and I can’t work things out on friendlier terms.