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.
