By: Michelle Montano, Communications and Policy Analyst, Partnership for Strong Communities
Emily A. Benfer, associate professor of clinical law and director of the Health Equity Policy and Advocacy Clinic, applies the World Health Organization’s Conceptual Social Determinants of Health (SDOH) model to demonstrate the disproportionate harm the eviction system imposes on the health of historically marginalized groups in the US. In an average year, 7.6 million people live in households that receive one or more eviction filings— the majority of which are Black women and families with young children. Black renters are evicted at five times the rate of white renters. Socioeconomic and political contexts, structural determinants of health inequity and intermediary determinants of health are the mechanisms defined by WHO as impacting health and well-being in this model. As it stands, the eviction system and its processes operate as a structural determinant of health inequity.
Informed by the positive outcomes caused by the housing protections put into place during the COVID-19 pandemic and the well-documented link between housing and health, this paper puts forth a variety of recommendations rooted in the Health Justice Framework that responds to each prong of the Conceptual SDOH model to fundamentally reform the eviction system.
While the SDOH helps to get to root causes, The Health Justice Framework offers principles and processes for identifying solutions and implementing interventions. The recommendations put forth fall into four key principles to address and prevent health inequity: (1) community empowerment and community-driven structural change, wherein impacted people drive solutions; (2) truth and reconciliation that investigates and acknowledges the historical underpinnings of the systemic and structural racism driving inequities; (3) laws and policies that address the structural determinants of health including social, political and legal mechanisms; and (4) support and protect social and legal protections to ensure circumstances change from negative to positive determinants of health. Solutions and policy recommendations are as follows.
Government Processes and Court-Based Procedures
Eviction Diversion
Research shows that most eviction cases brought to court are decided in the landlord’s favor. Diversion programs are meant to keep renters in their homes and to settle disputes outside of the court system. The necessary components to a successful diversion program include: access to an attorney or advocate, alternative means of mediation outside of court and support services such as debt forgiveness, financial assistance or housing counseling. In programs that have been studied, 67% to 95% of participating tenants remained in their homes.
Pre-Eviction Outreach to High-Risk Renters
To help high-risk renters avoid involvement with the eviction system, courts, local governments and community organizations can help identify those tenants and provide social support, rights education, legal assistance and other resources prior to displacement as a proactive measure.
Increased Filing Fees
When the cost of filing for eviction is low, landlords are less incentivized to work with tenants to find solutions outside of the court system. Research shows that increasing filing fees by $100 reduces the eviction filing rate by 2.25 percentage points. Increasing a $50 filing fee to a $200 filing fee would reduce eviction filing rates by 3.4 percentage points. That study also reports that “raising filing fees could reduce eviction rates to the same degree as increasing tenants’ incomes by tens of thousands of dollars.”
Evidentiary Standards
Surprisingly, landlords are required to show very little evidence in court in eviction cases. During The Great Recession and COVID-19, courts required landlords provide documentation providing evidentiary basis for their claims and to ensure the property was not covered by moratoriums. This baseline should be mandated.
Right to Counsel
When tenants have legal representation in eviction cases, they are significantly more likely to remain in their homes. This paper references data from Los Angeles showing that 97% of tenants are unrepresented in eviction court, and of those tenants, 99% experienced displacement. National research shows that over 80% of landlords are represented compared to just 3% of tenants. Effective right to counsel programs should protect all tenants, engage tenants in development and oversight of the program, and collaborate with courts and community organizations to educate and inform tenants about their rights.
Laws and Policies
Clean Hands and Just Cause Eviction Requirements
It is not uncommon for large landlords who earn millions of dollars in rental income to evict a tenant complaining of mold, broken appliances, lead paint, or other maintenance needs instead of addressing the problems. It is often cheaper for them to absorb the eviction costs than it is to get the building up to code. And because of the extremely tight rental market, landlords know that another tenant willing to tolerate unsafe conditions is not far. Plus, as it stands, only eight states have adopted “just cause” eviction laws meaning in most places, landlords can evict tenants for no reason. Clean Hands legislation would require landlords to verify compliance with rental ordinances and housing quality standards in eviction cases. Just Cause requirements would protect tenants against landlords who file for “no fault” evictions. These policies should be adopted across LIHTC, federally assisted and private market housing.
Providing Legal Defenses to Eviction and Right to Be Heard (Eliminating Rent Bonds)
In some states, tenants must pay a rent bond (usually the equivalent of one month’s rent) to have access to a hearing or an appeal of an eviction judgement against them. For low-income tenants struggling to pay rent, this barrier often results in an automatic judgement against them. Eliminating this cost is necessary to ensure tenants can exercise their right to be heard. Courts should also be required to educate tenants about their rights and provide them with opportunities to assert defenses.
Right to Cure, Grace Period, Redemption Rights
Mandating grace periods, payment plans for back owed rent and allowing tenants to pay in installments are ways that states and localities can protect tenants against unfair eviction practices. HUD strongly supports a repayment plan that stipulates the monthly retroactive rent payment plus the amount of rent the tenant pays at the time of agreement not exceed 40% of the family’s monthly adjusted income. Research shows that measures like these allow tenants to avoid eviction.
Late Fee Bans and Limits
During the pandemic many states prohibited landlords from charging late fees on rent. Policymakers should limit or ban those fees and/or create a buffer period where renters are not penalized for paying rent past its due date.
Record Sealing and Regulating the Use of Eviction Records
To circumvent the harsh consequences associated with having an eviction filing on your record, we should limit public access to eviction records, prohibit the denial of an application for tenancy based on eviction records and limit the types of evictions that appear on tenant screening reports. Because of the disparate impact on Black and Hispanic households, women and families, HUD should issue guidance that requires individualized assessment rather than screening reports for tenancy applications per the Fair Housing Act.
Budgets
Market Interventions
Communities that have historically been subjected to race and/or class-based discrimination must be invested in in the form of rental subsidies and the rehabilitation and/or construction of property that increases long-term affordable housing options.
Financial Supports
Safety net programs like unemployment insurance, the Child Tax Credit, Temporary Assistance to Needy Families, SNAP, and rental assistance all increase housing affordability, helping to prevent eviction. And yet these programs are underfunded, full of administrative red tape, and extremely hard to access. We should better fund these programs to meet the needs of the moment we are living in.
Emergency Rental Assistance and Eviction Court Reform
During the pandemic, The American Rescue Plan Emergency Rental Assistance (ARPA ERA) program was established to prevent tenant interactions with the eviction system. Because of the Biden administration’s flexibility and adherence to best practices including partnership with courts and local nonprofits, removing cultural and language barriers and more, eviction was nearly eliminated during the pandemic. Continuing and expanding these programs could drastically improve housing stability and the health of marginalized groups.
Low & No Barrier Services
As mentioned previously, the financial services that do exist are overly burdensome, have complicated eligibility and documentation requirements, and lengthy application processes. These barriers not only prevent folks from receiving the help they are qualified to receive, but they deter people from even applying. The flexibility applied to ARPA ERA distribution during the pandemic sped up the process and saved thousands of people from having to leave their homes.
Federally Assisted Housing
Rental assistance programs are among the primary approaches to increasing long-term affordability, decreasing homelessness, increasing independent housing and increasing household expenditures on food- all of which help increase health equity. This study recommends prohibiting source-of-income discrimination to ensure low-income renters can use the vouchers they are given. Additionally, because public housing and project-based programs are important sources of affordable housing but frequently located in highly segregated, underfunded neighborhoods, HUD should increase housing standards for the HCV program.
Low-Income Housing Tax Credits & Affordable Housing Development
Stronger tenant protections and eviction deterrents should be required for all LIHTC housing. At the local and state level, more affordable housing should be developed through housing trust funds, state and local tax credits and inclusionary zoning, as there is a correlation between zoning strictness and high costs of housing.
Community Development
Efforts to improve the conditions in communities with high rates of eviction through investment and outreach should be rooted in the health justice principles outlined above and should have impacted people at the center. Investing in under-funded, historically marginalized communities can help reduce eviction rates, increase housing stability, lower levels of violence and more.
Human Right to Housing
There have been many occasions throughout our nation’s history where the right to housing has been recognized. We must address the structural determinants of health inequity caused by our broken housing systems by investing in housing stability for historically marginalized groups.
Enforcement Processes
Statutory Damages and Penalties for Unlawful Evictions
When a landlord unlawfully evicts a tenant, there should be consequences. In several states including Connecticut, landlords can be fined for things like housing code violations or prohibiting tenant re-entry. These actions, while not necessarily preventing eviction, help create some resistance for landlords and aims to re-balance power dynamics in the landlord-tenant relationship.
Prohibition of Statuary Damages for Leases that Waive Tenants Rights
A tenant bill of rights should be adopted by each state that includes statutory clauses of action for tenants to file against landlords who use illegal clauses or waive tenant rights int he the lease.
Fair Housing Protections
Fair housing protections, including eviction protections should be enacted and consistently enforced in state and local governments. The Affirmatively Further Fair Housing Rule, implemented under the Obama administration, terminated by the Trump administration and reinstated under the Biden administration, sought to address the persistent discrimination and lack of protections around fair housing.
Click here to read the full paper.