A landmark court decision that requires landlords to be present at eviction hearings, plus a recent CDC-issued moratorium on certain evictions through the end of the year, are drastically altering the way evictions are handled in 2020
When attorney Melissa Benson came to the Legal Aid Society of Columbus five years ago, she was shocked by what she saw during eviction proceedings at Franklin County Municipal Court. Over and over again, she watched evictions take place without landlords present in court.
Tenants were required to show up for eviction proceedings, but landlords could evict by affidavit, a written statement. Franklin County was the only county in Ohio that permitted eviction by affidavit.
From that day on, Benson and her Legal Aid colleagues worked to change the process, eventually taking a case, T&R Properties v. Wimberly, to the Tenth District Court of Appeals. And on Tuesday, Sept. 1, the court ruled that in eviction cases, landlords have to come to court for trial and present witness testimony, just like any other case.
“That is the way that evictions are handled routinely throughout the state. Franklin County was very much an outlier on this issue,” Benson said. “It puts the landlords and tenants on the same page. If you want to try and win your case, you have to go to court.”
Last week, city leaders celebrated the court victory in a press event. “I want to publicly thank Judges Jennifer Brunner, Julia Dorrian and William Klatt for the courage to right a wrong, all together issuing the same opinion,” Mayor Andrew Ginther said.
In the Wimberly case, neither the tenant (Traci Wimberly) nor the landlord (T&R Properties) was present in court for the eviction in question, but the judge ruled in favor of the landlord based on an affidavit. “This is a very typical case,” Benson said. “When the tenant didn't show up for the trial, then the landlord’s attorney would slip the affidavit into the file and the court would issue judgment based on that.”
The appeal itself, though, was decidedly atypical. “The whole process was the most unusual appeal I’ve ever worked on,” said Benson, citing an amicus brief in support of Wimberly/Legal Aid submitted by City Attorney Zach Klein and the Columbus Women’s Commission, which has made equity in the eviction process a top priority, as well as a supporting brief submitted on behalf of nine social service agencies, including the Affordable Housing Alliance, B.R.E.A.D., Coalition on Homelessness and Housing in Ohio (COHHIO), YWCA Columbus and others. “It wasn’t just us raising a legal issue. It was all of the community coming together and saying, ‘This is important.’ And I think that very much made a difference for the court. The court, in its decision, actually points to several of the amicus briefs.”
(Dimitri Hatzifotinos of Willis Law, who argued against Benson in the appeal, declined to comment on the Wimberly decision.)Get news and entertainment delivered to your inbox: Sign up for our daily newsletter
According to Mayor Ginther, last year more than 16,000 evictions were filed in Franklin County — an abnormally high rate of eviction, which Alive explored in a 2018 cover story — and Benson said the eviction-by-affidavit issue negatively impacted many of those tenants in ways that aren't always immediately apparent.
For one, during an eviction proceeding, if a tenant disagreed with something in the affidavit, the landlord’s attorney would often request a continuance so that the landlord could be brought in to testify. “That means the tenant has to come back a week later and has to take off work again. These are low-income people usually struggling to make ends meet. It's not like they have paid leave for this in most circumstances. They're losing money,” Benson said. “They have to pay for child care again, or find child care. They have to pay for transportation and parking. They have to come and sit in a crowded courthouse for hours. It's stressful. And then they have to do it again a week later.”
The Wimberly decision will also bring people face to face with their landlords and all the other social services at the courthouse (which, for now, is meeting at the Columbus Convention Center in order to follow social distancing protocols).
“Right now, especially during COVID-19, we have so many resources available for tenants at the courthouse. IMPACT Community Action is there. Department of Job and Family Services, Legal Aid, Community Mediation Services, Columbus Metropolitan Housing Authority is there. There's a self-help center there. So many people are there to help parties reach resolutions that are going to benefit both sides,” Benson said. “It's easier to get those negotiations done and to get things accomplished when people are there. It'll stop people from having to come back repeatedly. … And hopefully this is going to preserve tenancies, because we'll be able to get things worked out. And that's going to benefit landlords, too, because they're going to get paid.”
Most importantly, it puts everyone in the courtroom on a level playing field. “It’s just basic fairness. The parties should be treated equally. There should be an equal expectation that if you want to present evidence, you've got to come to court,” Benson said. “That's not special. That's what everybody has to do.”
A few other changes have recently altered the way evictions are handled in Franklin County. Toward the end of 2018, City Council passed legislation to give the city code some teeth when fighting retaliatory evictions, which happens when tenants are evicted for reporting unhealthy or unsafe housing conditions.
Then, earlier this year, Franklin County Municipal Court enacted a new measure in which evictions more than three years old would be removed from online searches on the court website in an effort to ensure long-past evictions won’t hinder tenants from finding new housing. The new policy also allows tenants to apply to remove evictions less than three years old.
“That actually came out of the initial conversations that the Columbus Women's Commission had with the court about the affidavit issue,” Benson said. “While the court was not in a place where they were willing to change the affidavit procedure ... they were willing to have discussions about some other issues affecting tenants.”
Last month, City Council also picked a winner for its first-ever Policy Pitch Night, awarding first place to Olabisi Eddy, who proposed a policy that would require tenant-landlord mediation prior to eviction proceedings if minors are in the home. The idea of mandatory mediation, Benson said, is a concept that has been discussed more often in recent months, particularly amid the COVID-19 crisis.
But perhaps the most significant change regarding evictions, outside of the Wimberly case, came via a temporary federal order last week. On Sept. 1, the CDC issued a directive that halts the eviction of certain renters through the end of the year “to prevent the further spread of COVID-19.”
To qualify, tenants must complete a declaration form certifying that they have applied, tried to apply or are ineligible for rental assistance from the government; make $99,000 or less ($198,000 for joint filers); lost income recently because of a lack of work or hours or high medical expenses; are making best efforts to pay rent, fully or partially; and will have to move closer to other people if evicted (e.g. staying with family, friends or moving into a homeless shelter).
According to Graham Bowman of the Ohio Poverty Law Center, the CDC order’s language is purposefully sweeping. “I interpret that as being extremely broad language,” he said. “That's going to cover not only the vast majority of low-income persons, but a lot of middle-class people, as well.”
And while the CDC may seem like an unlikely agency to issue such a directive, Bowman said the logic makes sense. “In normal times in Ohio, tens of thousands of people get evicted every single year. In Columbus, it's somewhere around 75 on average per day — during good times. And each one of those evictions is a personal tragedy. But during the coronavirus, it's essentially playing Russian roulette with a person's life,” Bowman said. “They're going to be entering into a homeless shelter or a doubled-up situation with friends or family, or some sort of mixture of all those things. That is a huge public health risk.”
In that way, the CDC order is “enormously good,” Bowman said. “There are untold numbers of lives that will be saved because of this moratorium.”
But tenant advocacy groups and social service agencies also say the directive kicks the can down the road and avoids what low-income renters, many of whom have experienced bouts of unemployment during the COVID crisis, desperately need: rental assistance.
“[The CDC order] is something that became absolutely necessary as we got further away from the expiration of the enhanced unemployment benefits — the $600 a week. What we and housing advocates throughout the country have been urging is for Congress — and if Congress doesn't act, then Gov. DeWine — to create a robust rental assistance program,” Bowman said, echoing comments recently made to Alive by Bill Faith, executive director of COHHIO. “As unprecedented numbers of people are unemployed, they are unable to pay rent, or unable to pay full rent, and that eventually was going and is going to lead to a massive eviction crisis.”
After a COVID-related moratorium on Franklin County evictions expired at the end of July, landlords had to give a 30-day notice to tenants they intended to evict, which took renters up to the end of August or so. The Legal Aid Society of Columbus, then, had been gearing up for a wave of new evictions beginning sometime next week. With the CDC order now in effect, that may not be the case anymore, though legal scholars are still unsure of how the legalities of the directive will pan out. Bowman also said he expects a legal challenge to the order from landlord and real-estate interest groups.
Dimitri Hatzifotinos of Willis Law, which often represents large rental companies in court, said he doesn’t expect to see many changes related to the CDC order. “We are fortunate in Franklin County to have IMPACT, which has bridged the gap between tenants affected by COVID and landlords who are unable to maintain their business without rent payments,” Hatzifotinos said via email. “Since IMPACT will be able to provide assistance to those in need, the CDC regulation should not have far-reaching effect in Franklin County.”
Still, if widespread rental assistance doesn’t come to Ohio from the state or the federal government, a massive spike in evictions could be on the way in January and February, after the CDC order expires. “We still absolutely need rental assistance,” Bowman said. “Each one of those families, their financial situation hasn't changed because of the moratorium. They still owe rent. The order is very clear on that.”
For the time, though, most tenants appear to have some breathing room. And tenant advocates like Benson are encouraged by the way the eviction landscape has begun to change in the last few years.
“A lot more people within the community at large are interested in this issue and understand why it's important. Fifteen years ago, nobody cared. Evictions were not a thing that people talked about,” Benson said. “Now, the attention that's being paid to this issue on so many levels is really making a difference. And the Franklin County Municipal Court has … intentionally shifted the model towards a community court — a problem-solving kind of model instead of just trying to churn though things. And there's certainly still work to be done.”