February 04, 2021 Practice Points

Attorneys for Landlords and Residential Tenants Forecast a Tsunami of Eviction Litigation

Even after the eviction moratorium is lifted, the case backlog may take a year to clear.

By John Austin
Judges may take a range of stances on legal defenses asserted by tenants due to the pandemic.

Judges may take a range of stances on legal defenses asserted by tenants due to the pandemic.

Litigation brewing between landlords and residential tenants that has been stayed due to COVID-19 has lawyers on both sides questioning how the courts will view eviction defenses; however, they will simply have to wait until at least April 2021. The eviction and foreclosure moratorium enacted by the Centers for Disease Control and Prevention (CDC) that was due to expire on January 31 has been extended through at least March 31 by an executive order signed by President Joe Biden.

The CDC initially recommended the moratorium, which was issued on September 4, 2020 to reduce the possibility of further spread of the COVID-19 virus due to homelessness. The original moratorium expired December 31, 2020. It was extended through January 31 as part of COVID-19 relief package passed by Congress and signed by President Trump on December 27.

“The COVID-19 pandemic has presented a historic threat to our nation’s health,” states CDC Director Rochelle P. Walensky in Media Statement released January 20, 2021. “It has also triggered a housing affordability crisis that disproportionately affects some communities.

“Despite extensive mitigation efforts, COVID-19 continues to spread in America at a concerning pace,” Walensky writes. “We must act to get cases down and keep people in their homes and out of congregate settings—like shelters—where COVID-19 can take an even stronger foothold.”

Once the CDC lifts the moratorium, attorneys representing both landlords and tenants anticipate an avalanche of eviction cases that have been stayed for a year. The backlog may take a year to clear.

Not only will the courts be jammed with pending and new cases, but judges may take a range of stances on legal defenses asserted by the tenant due to the pandemic.

“We may see varied rulings from judges from district to district,” says Mario Sullivan of Johnson and Sullivan, Ltd. Sullivan practices in landlord/tenant law in Chicago, Illinois. “We may even see varied rulings for judges within the same district.”

Defenses such as force majeure, a relatively rarely used tactic, can be anticipated to be employed with great vigor. Attorneys for tenants may use very creative defenses in light of the unprecedented impact of the pandemic on the United States rental market.

In preparation of the oncoming tsunami of eviction cases, legal aid and other nonprofit organizations are offering training to litigators who would like to help defend low-income tenants who desperately need legal representation in courts.

“We have already began training and providing materials to private attorneys,” says George Hausen, executive director of the North Carolina Legal Services, a nonprofit providing legal support to low-income tenants. Hausen understands the limited resources his organization has and hopes private attorneys will agree to assist when the enormous wave of cases his the courts.

Often low income tenants receive housing or rental assistance from public housing authorities (PHAs). Tenants may rent directly from a PHA in public housing or they may rent from private landlords and have their rent subsidized through the Section 8 Voucher Choice program, financed by the Department of Housing and Urban Development and managed by the local PHAs.

The PHAs are also bracing for the monumental wave of cases. Once the moratorium is lifted, James Cox of Greensboro Housing Authority in Greensboro, North Carolina, expects the backlog of evictions to take months to resolve. However, Cox recommends that attorneys representing clients attempt to resolve the matter outside of court.

“We are in the business of housing,” Cox says. Most housing authorities do not want to evict tenants, he adds. Cox recommends that tenants and their representatives contact the PHAs to see if there are resources from churches, nonprofits or other organizations that may assist tenants behind in their rental payments.

“We are looking for a win-win outcome,” says Cox.

In order to provide training and support to attorneys dealing with the upcoming landlord/tenant litigation, the Trial Practice Committee of the Section of Litigation, along with the ABA Solo, Small Firm and General Practice Division, will be sponsoring a webinar with CLE credits with Sullivan representing the landlord attorneys, Sheri Dickson of N.C. Legal Services representing tenants and Cox representing the PHA perspective. The webinar will include hands-on training as to claims and defenses unique to the COVID-19 pandemic, strategies for negotiating a settlement either before or in the course of litigation, and a primer on the relationships between PHAs, their tenants and landlords participating in Voucher Choice program. The date and time of the webinar will be announced in the next few weeks.

John Austin is an attorney in Raleigh, North Carolina. He also serves as cochair of the Trial Practice Committee.


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