The eviction moratorium misnomer and the impact of IMPACT
The CDC moratorium has had little effect on evictions, but IMPACT Community Action is doling out millions in assistance, even up to 15 months of rent. Yet many tenants don’t know the help is there.
On Sept. 4, 2020, the Centers for Disease Control and Prevention issued an order titled “Temporary Halt in Residential Evictions to Prevent the Further Spread of COVID-19,” a directive that many, including the CDC, have referred to as an eviction moratorium. The initial order was set to expire at the end of 2020 but has since been extended through March 31.
The moratorium appeared to give breathing room to tenants who have struggled to pay rent due to lost jobs and wages during the pandemic. But in Franklin County, that hasn’t panned out: The order has halted evictions in less than 1 percent of cases.
According to the Legal Aid Society of Columbus, which used data from Franklin County Municipal Court, more than 4,000 evictions were filed between September and December of 2020, and fewer than 20 were halted by the CDC’s so-called moratorium.
“The landlords just file [evictions] regardless. A lot of landlords and their attorneys are telling tenants, ‘The moratorium doesn't apply to you, so we’re going to go forward with this eviction, and you've got to defend this moratorium yourself,’” said Legal Aid attorney Jyoshu Tsushima. “That's terrifying because … the arguments that are being raised in regard to the eviction moratorium are constitutional arguments. … Most attorneys don't even know these arguments.”
While some tenant advocates initially interpreted the CDC’s language as purposefully broad, the agency later released an FAQ that clarified and narrowed the directive, stating, in part, “The Order is not intended to terminate or suspend the operations of any state or local court. Nor is it intended to prevent landlords from starting eviction proceedings.”
“[The order] was this grand gesture from the Trump administration: ‘We're putting a halt on evictions.’ Everybody was a little bit skeptical about what that actually meant,” Tsushima said. “Then that FAQ comes out saying, well, yeah, you can actually file evictions still. So it's really not a moratorium. It's just something we call a moratorium.”
The legality of the moratorium has also come under fire. In late February, a Texas judge ruled the order unconstitutional, and in Columbus, attorney Dimitri Hatzifotinos of Willis Law, the highest-volume filer of evictions in Franklin County, sued the CDC in September on behalf of real estate holding company KBW Investment Properties. The suit asked the judge to consider invalidating the moratorium, and the two sides settled out of court in October after the Department of Justice said it would not prevent eviction proceedings from going forward, which likely prompted the clarifications in the CDC FAQ.
“The entire eviction hearing can happen. The CDC only prevents a set out,” said Hatzifotinos, referring to the removal of a tenant’s belongings after a red tag is placed on the door.
The number of set outs has gone down, Tsushima said, but evictions have remained steady. The Greater Columbus Convention Center has been hosting eviction hearings during the pandemic to allow for social distancing, and on Wednesday morning, March 3, the docket contained 102 cases — a fairly average day. During the first hour or so of hearings, the moratorium never came up, partly because many tenants didn’t show up for court in front of Magistrate Danielle Sparks. (“Based on testimony, recommending judgment,” Sparks said repeatedly during these no-show hearings.)
Aside from the temporary, airier setting in the Downtown convention center, a few things looked different last week at eviction court compared to previous visits. For one, landlords appeared at hearings with their attorneys — a direct result of T&R Properties v. Wimberly, a Sept. 1, 2020, decision in which the court ruled that during Franklin County eviction cases, landlords must come to court for trial and present witness testimony. (Previously, landlord attorneys were permitted to evict with a written statement — an affidavit — from the landlord, an issue Alive explored in 2018.)
Around the corner from courtroom 11B, Willis Law also set up an unofficial seating area for its clients; the day before, out of the 100 or so eviction cases, Hatzifotinos said Willis handled all but four. But even more striking was the presence of IMPACT Community Action, a local nonprofit tasked with doling out millions of dollars in rental assistance.
The impact of IMPACT
In 2019, IMPACT provided rental assistance to 200 customers and spent about $300,000, according to IMPACT CEO Bo Chilton. In the last half of 2020, from June 1 to Dec. 31, IMPACT served 5,000 customers and spent almost $15 million through a local partnership with the Housing Stabilization Coalition.
“We had to hit the ground running,” Chilton said. “We were building the plane and flying it at the same time.”
IMPACT administers rental assistance through a variety of funding sources: the CARES Act, City of Columbus, federal Community Development Block Grant, the Columbus Foundation and, recently, $2 million from Franklin County Commissioners. In total, Chilton said the agency will have about $30 million to distribute in 2021, which, at an average of $3,000 per application, should help around 10,000 Franklin County households.
At eviction court last week, IMPACT staffer Shawn Ennis manned the agency’s table, where he screened applicants for rental assistance eligibility. Tenants have to show their financial hardship is COVID-related, which Ennis said sometimes involves getting nosy. As of today, IMPACT’s funding comes from a federal Community Development Block Grant, a stopgap source that limited the agency to helping with up to three months of rent and only through in-person applications at the court rather than online.
That money came in handy for a number of Columbus tenants at the courthouse last week, including 31-year-old Americus Clinkscale, who lost income when the call center where she worked cut her hours during the pandemic. Clinkscale arrived at the convention center with her young daughter expecting that Oakland Realty would evict her for nonpayment of rent, but instead she received $2,805 in rental assistance from IMPACT and a payment agreement with her landlord that allowed her to stay in her apartment. She previously had never heard of IMPACT.
Beginning Wednesday, March 10, qualifying tenants will be able to receive even more rental assistance dollars from IMPACT. Chilton explained that previously, CARES Act money carried IMPACT through December of 2020. After that, the agency waited for Congress to pass a $900 billion stimulus package, with $25 billion earmarked for rental assistance.
“That funding did pass, but it's still in the process of getting set up. We were awaiting guidance from the Treasury Department, and the initial guidance and FAQs that came out from the Treasury under the Trump administration had a lot of restrictive barriers to assisting people that many advocates were trying to change. When the Biden administration took over, they changed those rules and gave new guidance,” Chilton said. “It's much less restrictive. The majority of the $30 million that we have will be attached to that, and that's what we'll be using from March 10 forward.”
Beginning Wednesday, Chilton said IMPACT can pay arrears back to April 1, 2020, and can also pay in advance up to three months, meaning that for tenants who are income-eligible (earning less than 80 percent of the area median income) and can show COVID-related financial losses, they could receive up to 15 months of rental assistance.
On the same day, IMPACT will also reopen its web-based portal so that Central Ohioans can apply online (or by phone) rather than in-person at court. “With the new criteria, we'll be able to assist even those who may not necessarily be citizens, but are residents. We'll be able to help a wider, broader section of our community,” Chilton said.
The knowledge gap
Even more funding for rental assistance could be on the way once Congress passes the $1.9 trillion stimulus bill. The problem is, many struggling renters in Columbus don’t know about IMPACT or the emergency assistance available through the county’s Job and Family Services, which for years has had a presence at eviction court.
“There's a ton of people that are seeing eviction notices, and they have no idea about all of these complicated federal policies, and they're leaving their homes because of that,” said Graham Bowman, an attorney with the Ohio Poverty Law Center.
“I do think it's an education issue,” Chilton said. “When we launched the program, we did do some billboard advertisements, and we got flooded with calls. We were able to help a lot of people, but we ended up having to shut down at one point because of the number of applications.”
Hatzifotinos argues the problem is less about education and more about the outsized duties an agency like IMPACT has to fulfill. “I think it's wonderful that we have rental assistance. The assistance has been life-changing for landlords and for tenants,” he said. “But IMPACT is a resource that is not used as well as it could be. It's been cumbersome. It's not been something that has been communicated very well to anybody. Their funding can change from day to day. A lot of times I feel like they're overwhelmed by the amount of people applying."
For his part, Hatzifotinos, who’s also general counsel for the Columbus Apartment Association, thinks the system should allow for landlords to apply for assistance directly on behalf of their tenants.
Legal Aid and Hatzifotinos often aren’t on the same page when it comes to landlord/tenant issues. In fact, they are quite often on opposite sides of a courtroom (including in the aforementioned Wembley case). While Tsushima said more evictions are happening in Franklin County now than before the pandemic, Hatzifotinos said there are fewer. Tsushima described invasive “truthfulness hearings,” when landlords contest a tenant’s eligibility for the CDC moratorium and often grill tenants over how they spend every dollar. Hatzifotinos, on the other hand, said there hasn't been a need to litigate the CDC moratorium often “because everybody just gets assistance to stay where they are.”
But across the board, tenant advocates, property managers, landlord attorneys and local agencies all agree on one thing struggling tenants should make every effort to do: Show up to court.
The CDC moratorium may not help, but IMPACT likely can. And when evictions are filed for nonpayment issues, many landlords would rather work out a payment agreement than evict without receiving payment. “We did 42 agreements on Tuesday, [March 2], and the only ones we didn't do agreements on were the ones where nobody showed up or where they were dismissed because they had already moved out,” Hatzifotinos said. “If they showed up, generally speaking, they got an agreement to pay and stay.”
Getting to court isn’t always easy for low-income renters. Arranging transportation and making work arrangements can be difficult, not to mention childcare. But the alternative — an eviction on their record and the ensuing scramble to find a new place to stay — can be catastrophic. “People losing their housing is always a crisis,” Bowman said. “It’s just common-sense public policy to do everything we can to avoid those evictions.”