Jeffrey Lieser explores the challenges for US attorneys in addressing tenant and landlord disputes during the covid-19 pandemic
As the US economy tries to recover from the covid-19 pandemic, the pandemic has left many tenants unable to pay their rent for months at a time. For many landlords, the eviction moratoriums imposed by local, state, and federal governments have left them without legal recourse – and without income.
In the US, eviction moratoriums were imposed at all levels of government. A patchwork of local and state governments across the nation enacted their own bans preventing landlords from evicting tenants for non-payment of rent during the pandemic. Congress also passed the CARES Act, which included a federal eviction moratorium for covered tenants that expired in July 2020.
The Centers for Disease Control and Prevention (CDC) then issued an unprecedented national eviction moratorium for most renters that was extended by the Biden administration through the summer of 2021. The CDC’s eviction moratorium was struck down by the Supreme Court, which ruled only Congress could authorize such a moratorium.
As a result, unless a local eviction moratorium applied, landlords could evict tenants who failed to comply with their lease.
Emergency rental assistance
To help both tenants and landlords, Congress passed the Emergency Rental Assistance Program (ERAP) as part of the Consolidated Appropriations Act, 2021. That legislation appropriated $25bn for emergency rental assistance to eligible households suffering unemployment or other financial hardship. Congress later appropriated an additional $21.55 billion for rental assistance under the American Rescue Plan Act of 2021.
However, most of the funds allocated for the program have yet to be distributed. Landlords have now gone months (even years) without rent and with the expiration of the federal eviction moratorium, tenants are now at risk of being evicted.
According to the National Low Income Housing Coalition (NLIHC), just 33.7 per cent of the original ERA1 funds had been distributed at the end of September 2021. Meanwhile, eighteen states spent less than ten per cent of their allocated ERA1 funds at the end of August.
Starting on September 20, 2021, the Treasury was required to begin recapturing and reallocating “excess” ERA1 funds. The Treasury is directed to reallocate excess funds to Grantees that, at the time of the reallocation, have obligated at least 65 per cent of their initial ERA1 allocation.
Unsurprisingly, the required recapture and reallocation has caused states and localities that were at the bottom of the list to start working on ways to move the application and disbursement process along.
ERA funds not disbursed
The problem often boils down to a laborious and confusing application and approval process. Many renters who would qualify for assistance have been unable to figure out how to apply. Those who manage to fill out an application have frequently had their application stuck as ‘pending’ or denied outright because of the complicated and burdensome approval guidelines.
The problems are so pervasive that the U.S. Treasury Department recently issued guidelines for grantees to try and alleviate some of these obstacles.
The role of attorneys
Many landlords of them are turning to attorneys for help. One of the best ways for both tenants and landlords to maximize the benefits available to them is to be proactive in working together. When tenants realize they will need help paying rent, or once landlords identify struggling tenants, both can begin cooperating on the application process to obtain rental assistance before tenants fall further behind.
The NLIHC has a searchable database for tenants to locate a program in their area that processes ERAP applications. In some jurisdictions, the landlord can apply directly on behalf of the tenant.
Explaining the process to landlords and ensuring that they have the necessary documentation ready to submit can dramatically increase the likelihood of approval and decrease the time it takes rental funds to be disbursed.
Jeffrey Lieser is an attorney at Lieser Skaff Alexander in Tampa, Florida lieserskaff.com
Lieser & Skaff