[House Hearing, 117 Congress]
[From the U.S. Government Publishing Office]
POTENTIAL REMEDIES FOR UNLAWFUL EVICTIONS
IN FEDERAL EMERGENCY AREAS
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HEARING
BEFORE THE
SUBCOMMITTEE ON THE CONSTITUTION, CIVIL
RIGHTS, AND CIVIL LIBERTIES
OF THE
COMMITTEE ON THE JUDICIARY
U.S. HOUSE OF REPRESENTATIVES
ONE HUNDRED SEVENTEENTH CONGRESS
FIRST SESSION
__________
MONDAY, JUNE 14, 2021
__________
Serial No. 117-28
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Printed for the use of the Committee on the Judiciary
[GRAPHIC NOT AVAILABLE IN TIFF FORMAT]
Available via: http://judiciary.house.gov
__________
U.S. GOVERNMENT PUBLISHING OFFICE
48-274 WASHINGTON : 2022
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COMMITTEE ON THE JUDICIARY
JERROLD NADLER, New York, Chair
MADELEINE DEAN, Pennsylvania, Vice-Chair
ZOE LOFGREN, California JIM JORDAN, Ohio, Ranking Member
SHEILA JACKSON LEE, Texas STEVE CHABOT, Ohio
STEVE COHEN, Tennessee LOUIE GOHMERT, Texas
HENRY C. ``HANK'' JOHNSON, Jr., DARRELL ISSA, California
Georgia KEN BUCK, Colorado
THEODORE E. DEUTCH, Florida MATT GAETZ, Florida
KAREN BASS, California MIKE JOHNSON, Louisiana
HAKEEM S. JEFFRIES, New York ANDY BIGGS, Arizona
DAVID N. CICILLINE, Rhode Island TOM McCLINTOCK, California
ERIC SWALWELL, California W. GREG STEUBE, Florida
TED LIEU, California TOM TIFFANY, Wisconsin
JAMIE RASKIN, Maryland THOMAS MASSIE, Kentucky
PRAMILA JAYAPAL, Washington CHIP ROY, Texas
VAL BUTLER DEMINGS, Florida DAN BISHOP, North Carolina
J. LUIS CORREA, California MICHELLE FISCHBACH, Minnesota
MARY GAY SCANLON, Pennsylvania VICTORIA SPARTZ, Indiana
SYLVIA R. GARCIA, Texas SCOTT FITZGERALD, Wisconsin
JOE NEGUSE, Colorado CLIFF BENTZ, Oregon
LUCY McBATH, Georgia BURGESS OWENS, Utah
GREG STANTON, Arizona
VERONICA ESCOBAR, Texas
MONDAIRE JONES, New York
DEBORAH ROSS, North Carolina
CORI BUSH, Missouri
PERRY APELBAUM, Majority Staff Director and Chief Counsel
CHRISTOPHER HIXON, Minority Staff Director
------
SUBCOMMITTEE ON THE CONSTITUTION, CIVIL RIGHTS,
AND CIVIL LIBERTIES
STEVE COHEN, Tennessee, Chair
DEBORAH ROSS, North Carolina, Vice-Chair
JAMIE RASKIN, Maryland MIKE JOHNSON, Louisiana, Ranking
HENRY C. ``HANK'' JOHNSON, Jr., Member
Georgia TOM McCLINTOCK, California
SYLVIA R. GARCIA, Texas CHIP ROY, Texas
CORI BUSH, Missouri MICHELLE FISCHBACH, Minnesota
SHEILA JACKSON LEE, Texas BURGESS OWENS, Utah
JAMES PARK, Chief Counsel
C O N T E N T S
----------
Monday, June 14, 2021
Page
OPENING STATEMENTS
The Honorable Steve Cohen, Chair of the Subcommittee on the
Constitution, Civil Rights, and Civil Liberties from the State
of Tennessee................................................... 2
The Honorable Mike Johnson, Ranking Member of the Subcommittee on
the Constitution, Civil Rights, and Civil Liberties from the
State of Louisiana............................................. 4
WITNESSES
Mr. Hilary O. Shelton, Washington Bureau Director and Senior Vice
President for Advocacy and Policy, NAACP
Oral Testimony................................................. 6
Prepared Testimony............................................. 9
Ms. Cindy Ettingoff, Chief Executive Officer and General Counsel,
Memphis Area Legal Services
Oral Testimony................................................. 15
Prepared Testimony............................................. 17
Mr. Joel Griffith, Research Fellow, Financial Regulations, The
Heritage Foundation
Oral Testimony................................................. 23
Prepared Testimony............................................. 25
Ms. Katy Ramsey Mason, Assistant Professor of Law and Director,
Medical-Legal Partnership Clinic, Cecil C. Humphreys School of
Law, The University of Memphis
Oral Testimony................................................. 34
Prepared Testimony............................................. 36
LETTERS, STATEMENTS, ETC., SUBMITTED FOR THE HEARING
Materials submitted by the Honorable Sheila Jackson Lee, a Member
of the Subcommittee on the Constitution, Civil Rights, and
Civil Liberties from the State of Texas, for the record
An article entitled, ``How Houston-Area Families Are Being
Forced From Their Homes Without An Eviction Notice,'' Houston
Public Media................................................. 58
An article entitled, ``HUD: Growth Of Homelessness During 2020
Was `Devastating,' Even Before The Pandemic,'' NPR........... 64
POTENTIAL REMEDIES FOR UNLAWFUL EVICTIONS IN FEDERAL EMERGENCY AREAS
----------
Monday, June 14, 2021
U.S. House of Representatives
Subcommittee on the Constitution, Civil Rights,
and Civil Liberties
Committee on the Judiciary
Washington, DC
The Subcommittee met, pursuant to call, at 3:37 p.m., in
Room 2141, Rayburn House Office Building, Hon. Steve Cohen
[Chair of the Subcommittee] presiding.
Present: Representatives Cohen, Raskin, Ross, Johnson of
Georgia, Garcia, Jackson Lee, Johnson of Louisiana, and
Fischbach.
Staff Present: John Doty, Senior Advisor; Moh Sharma,
Director of Member Services and Outreach & Policy Advisor;
Jordan Dashow, Professional Staff Member; Cierra Fontenot,
Chief Clerk; John Williams, Parliamentarian; James Park, Chief
Counsel, Constitution Subcommittee; Will Emmons, Professional
Staff Member/Legislative Aide, Constitution Subcommittee; James
Lesinski, Minority Counsel; Sarah Trentman, Minority Senior
Professional Staff Member; Andrea Woodard, Minority
Professional Staff Member; and Kiley Bidelman, Minority Clerk.
Mr. Cohen. The Committee on the Judiciary, Subcommittee on
the Constitution, Civil Rights, and Civil Liberties will come
to order.
Without objection, the Chair is recognized and authorized
to declare a recess of the Subcommittee at any time.
I welcome everyone to today's hearing on the potential
remedies for unlawful evictions in Federal emergency areas.
Before we continue, I would first like to thank the
Committee for its indulgence in putting up with the airlines
flight delays, but we made it.
I would like to remind Members we have established an email
address and distribution list dedicated to circulating
exhibits, motions, or other written materials that Members
might want to offer as part of our hearing today. If you would
like to submit materials, please send them to
[email protected], and we will have them distributed
to Members and staff as quickly as we can.
Finally, I ask all Members and Witnesses, both in person
and those appearing remotely, to mute your microphones when you
are not speaking. This will help prevent feedback and other
technical issues. You may unmute yourself at any time you seek
recognition, and, of course, those of you who are virtual can
unmask yourself.
For those in the room, I note--Mr. Johnson liked that one.
For those in the room, I note that updated guidance from the
Office of the Attending Physician provides that those who are
fully vaccinated from COVID-19 do not need to wear masks or
maintain social distancing. If you are not fully vaccinated,
you are required to continue wearing a mask and maintain six
feet of social distancing.
I take it, Mr. Johnson has been fully vaccinated, and I
welcome you to the club.
I will now recognize myself for an opening statement.
The purpose of today's hearing is to discuss the issue of
unlawful evictions during the COVID-19 pandemic and potential
legislative remedies to address such unlawful evictions during
national emergencies. The COVID-19 pandemic has ravaged this
country and the world, impacting people's health, jobs, and
their daily activities.
In the United States, millions of people have lost their
jobs, experienced reduced income, and lost loved ones due to
the novel coronavirus. For many of these people, the past year
has been a struggle to put food on the table, pay their bills,
and afford rent. These struggles have been especially
pronounced in communities of color, which have been
disproportionately impacted by the pandemic.
Even before the pandemic began, a lack of affordable
housing and evictions had been long-standing issues. They have
been long-standing issues in America forever.
According to 2018 statistics, nearly half of all renter
households were rental-cost burdened, paying more than 30
percent of their income towards rent. On average, between 2000
and 2016, more than 3.6 million eviction cases were filed in
the U.S. per year.
Early on in the pandemic, experts warned how the loss of
jobs and income due to coronavirus public health measures could
lead to an eviction crisis. In response, the Federal Government
took action.
Congress passed the CARES Act, which included an eviction
moratorium. After that moratorium expired in the summer of
2020, the Centers for Disease Control and Prevention issued an
eviction moratorium, which has been extended several times,
both legislatively and administratively, and is now slated to
expire at the end of the month.
While these moratoria were not perfect, they offered many
people a reprieve and helped them stay in their apartments and
houses during a time when the best thing we could do for our
health and the health of others was to stay at home.
Unfortunately, since these moratoria were put in place, there
have been reports across the country of landlords engaging in
unlawful evictions to circumvent them.
These so-called self-help evictions could generally be
defined as actions or courses of conduct by a landlord intended
to oust the tenant without the benefit of a judicial
proceeding. They can take many forms, from a landlord changing
the locks on an apartment, or cutting utilities, to refusing to
make essential repairs, or moving a tenant's furniture and
belongings out of their apartment.
Tenants facing these self-help evictions often have limited
avenues for recourse, especially low-income tenants who do not
have the resources to afford legal representation or fight that
eviction in court.
These actions by unscrupulous landlords to circumvent
federal moratoria, which are meant to protect public health,
are appalling and merit a response. That is why I introduced
H.R. 1451, the Emergency Eviction Enforcement Act of 2021, to
address self-help evictions during national emergencies.
This bill would provide a private right of action in
federal court against landlords for tenants who are evicted
without duly issued court orders. Tenants would also have a
right of action when the landlord threatens, harasses,
intimidates, or creates a hostile environment for the tenant,
or impairs the habitability of their home for the purpose of
causing them to vacate the property.
In addition to entitling successful plaintiffs to
injunctive relief and repossession of the property, my bill
would also entitle them to damages, which, in addition to
repairing some of the damage done to the tenants by these
unlawful evictions, would also help de-ter landlords from
engaging in this unlawful conduct to begin with.
If anything, one of the key lessons of the past year is the
government was not adequately prepared to respond to a public
health crisis. As we took to respond to the issue of unlawful
evictions during the pandemic, it is important that we plan for
the next pandemic or other national emergency.
This is why my bill would apply not just to unlawful
evictions occurring during the current national public
emergency--health emergency, but also in any area declared by a
President as a national emergency in the future under the
National Emergencies Act, Public Health Services Act, or the
Robert T. Stafford Disaster Relief and Emergency Assistance
Act.
The loss of one's home can have a tremendous negative
impact on a family, including on their safety, health, and
ability to work. In the Western District of Tennessee, which
includes my congressional district, we are already seeing the
impact of legal evictions as the District Court in--for the
Western District of Tennessee struck down this moratorium.
Even in areas where the CDC moratorium is still in effect,
unlawful evictions continue with limited recourse for the
tenants who experience them. We owe it to the American people,
who have suffered so much in the past year, to take action.
Our Witnesses today will make clear how pervasive unlawful
evictions are throughout the country during the current
pandemic and the long-lasting impact these evictions can have,
especially on low-income people and people of color, who were
disproportionately impacted by both the pandemic and the
eviction crisis.
There are obviously economic effects, but there are
emotional, psychological, unsettling effects, and ones that can
follow children and people for years and years to come, being
evicted from your house.
I thank our Witnesses for joining us today, and I look
forward to their testimony.
It is now my pleasure to recognize the Ranking Member of
the Subcommittee, the gentleman from Louisiana, Mr. Johnson,
for his opening statement.
Mr. Johnson of Louisiana. Thank you, Chair Cohen.
It will be no surprise that we have a bit of a disagreement
about this subject.
The Founding Fathers recognized that a right to property is
a right that protects liberty itself. John Adams observed
property must be secured, or liberty cannot exist.
In the Fifth Amendment, the Founders protected private
property from government overreach, providing, quote, ``that no
person shall be deprived of life, liberty, or property without
due process of law, nor shall private property be taken for
public use without just compensation.''
Indeed, private property is a principle that finds its
roots all the way back into our Judeo-Christian traditions,
beginning in the passages in the first books of the Old
Testament. Yet, today, Americans' fundamental right to private
property is under threat.
Last summer, as rioters destroyed mom-and-pop stores in
cities across America, some elected officials encouraged those
individuals. For instance, Portland District Attorney Mike
Schmidt dropped over 90 percent of riot- and protest- related
offenses from the unrest last year and stated, quote,
``Sometimes it takes some property damage.'' He said, ``it
takes more than just peaceful protests to get the government's
attention,'' unquote.
Here in Congress, somebody referred to the federal law
enforcement officers who worked to stop the looting and
destruction as, quote, ``stormtroopers,'' and even raised money
to bail out rioters. One of our colleagues has gone so far as
to urge citizens to, quote, ``get more confrontational,'' in
the face of months of civil unrest.
Now, the Democratic Party has in its sights apparently
federalizing landlord tenant law, having landlords in my home
State, Louisiana, be controlled by the same Federal dictates as
those in New York City or Los Angeles during a national
emergency.
The COVID-19 pandemic posed serious threats to Americans'
health and economic well-being, but one-size-fits-all mandates
from Washington, DC, are not the way to address those concerns.
Landlord-tenant law has long been the domain of states
because it arises from each state's own common-law traditions.
Each State should remain free to determine those questions,
like how and when a landlord can evict a tenant who poses a
danger to him or the community, a tenant who has been
delinquent on their rent for a certain period of time, or a
tenant who has broken other terms of their lease.
Most of all, the pandemic is now receding, and Americans
across the country are returning to their normal lives. We
should be looking forward and not using a past threat to impose
onerous policies for the future.
The Democrats' policies are reckless in this regard. They
are spending Americans' hard-earned money, and causing
inflation across the economy, especially on the price of
household's goods. Each dollar spent by ordinary families now
buys less than it did just six months ago.
Democrats keep extending the enhanced unemployment
benefits, incentivizing Americans not to work while millions of
good-paying jobs are unfulfilled.
Democrats are catering to teachers' unions. They are
keeping schools closed and forcing many parents out of the
workforce to stay home and care for their children. It is no
wonder Americans are moving out of Democrat-run cities to safer
and freer States.
The Democrat policies are defunding the police and catering
to tone-deaf teachers' unions and closing schools and shutting
down churches, while tattoo parlors are able to operate down
the street, ignoring homelessness and imposing ever-increasing
taxes. These are all the reasons many Americans are leaving
cities like San Francisco, New York City, and Chicago.
California, New York, New Jersey, Michigan, and Illinois,
all historically Democrat-run, lost a combined four million
residents since 2010. That Census data accounts for this exodus
before the pandemic, further exposed these cities for being so
poorly run.
How about Democrats do what is right for the American
people. Why don't we open the schools? Why don't we tamp down
on unnecessary spending and get Americans back to work? These
ill-advised policies are weighing down an American economy
trying to rebound from the global pandemic. It is time for
America to get back to work.
For those who are still unable to return, there are ample
Federal and State resources to assist in housing costs. Now,
paying, law-abiding tenant should ever be thrown out without
legal recourse. The contract between a tenant and a landowner
must be honored, and State courts should be quick to reconcile
any breaches of these contracts.
Our responsibility in Congress is not to hand out free
housing. It is to protect private property rights of every
single American. This fundamental principle is a cornerstone of
our country, and it has served as the bedrock of fostering the
greatest economy the world has ever seen. I hope that this
hearing today makes that clear.
I thank the Chair, and I yield back.
Ms. Ross. [Presiding.] Thank you, Mr. Johnson.
We welcome our Witnesses and thank them for participating
in today's hearing.
I will now introduce each of the Witnesses and, after each
introduction, will recognize that Witness for his or her oral
testimony.
Please note that each of your written statements will be
entered into the record in its entirety. Accordingly, I ask
that you summarize your testimony in five minutes.
To help you stay within that time, for our Witnesses
testifying in person, there is a timing light on your table.
When the light switches from green to yellow, you have one
minute to conclude your testimony. When the light turns red, it
signals your five minutes have expired.
For our Witnesses testifying remotely, there is a timer in
the Zoom view that should be visible at the bottom of your
screen.
Before proceeding with testimony, I would like to remind
all our Witnesses that you have a legal obligation to provide
truthful testimony and answers to this Subcommittee and that
any false statement you make today may subject you to
prosecution under section 1001 of title 18 of the United States
Code.
Our first Witness is Hilary Shelton.
Mr. Shelton is director of the NAACP's Washington Bureau,
and its senior vice President for advocacy and policy. Mr.
Shelton is responsible for advocating the Federal public policy
issue agenda of the oldest, largest, and most widely recognized
civil rights organization in the United States.
Mr. Shelton's government affairs portfolio includes
critical--crucial issues, such as affirmative action; equal
employment protection; access to quality education; stopping
gun violence; ending racial profiling; abolition of the death
penalty; access to comprehensive healthcare; voter rights
protection; Federal sentencing reform; and a host of civil
rights enforcement, expansion, and protection issues. He is
very busy.
Mr. Shelton holds degrees in political science from Howard
University, in communications from the University of Missouri
in St. Louis, and legal studies from Northeastern University.
Mr. Shelton, you are recognized for 5 minutes.
STATEMENT OF HILARY O. SHELTON
Mr. Shelton. Thank you very much, and good afternoon.
I want to say good afternoon to Chair Cohen, Ranking Member
Johnson, and esteemed Members of the Subcommittee.
I would also like to thank you for inviting me here today
to discuss a pressing topic as we fight against the unlawful
evictions of tenants taking place even during the middle of a
national health emergency.
This issue is especially concerning to the NAACP. As you
mentioned, the NAACP is an over 100-year-old organization that
has focused on these issues as part of a movement for decades
upon decades.
As you are aware, the COVID-19 pandemic and the economic
crisis that followed had a direct and negative impact on many
Americans in several aspects of their lives, whether it be on
their physical, mental health well-being, education
opportunities, or financial situations. For those already in
economic distress, those living paycheck to paycheck,
struggling to afford rent and pay bills, the pandemic
exacerbated an already dire situation.
The severe lack of affordable housing in this country, and
the high rate of evictions among people of color long preceded
the COVID-19 pandemic. This crisis has brought this issue to
the forefront of the national conscience and shined a light on
the pain many individuals and families are experiencing right
now and have experienced for decades.
Now, I don't want to get into a debate over whose pain
hurts more. However, during all this, a common theme that we
see in this country has been made evident once again. Whenever
America goes through a storm, African Americans and communities
of color are hit the hardest.
As the country locked down and economic activity slowed,
millions lost their jobs and their only means to pay for the
basics, like housing and food. So, as we saw hospitals fill up
with sick Americans, we also saw, and still see today,
thousands upon thousands of individuals and families forced out
of their homes because they can no longer pay rent.
In light of the massive wave of evictions and the potential
for millions more due to the course of the pandemic, and the
slow economic recovery, the Federal government stepped up and
implemented a moratorium on evictions to provide much-needed
temporary relief for families in distress.
Though this moratorium was a necessary step to cushion the
cushioning blow--crucial blow of American families, that can
only be looked at as a Band-Aid solution at best. Despite its
good, this wall of protection is slowly crumbling as a Federal
district court in Memphis, Tennessee, recently ruled in favor
of the landlords and allowed evictions to proceed.
These self-help evictions, where landlords take it upon
themselves in circumventing the eviction moratoriums to remove
tenants from their dwellings, are displacing already vulnerable
families, and once again, disproportionately hurting people of
color throughout the country.
Even as this country begins to get back onto its feet, we
see the economy start to grow again, millions of families are
still in dire financial circumstances and need the time and
support to recover from the hardship of the past year.
As long as these moratoriums are in place, tenants should
remain temporarily protected from the fear of becoming homeless
and thrown even more deeply into the spiral of poverty.
This is why Congress must fight to ensure that eviction
moratoriums put in place due to a public health emergency are
not being ignored by landlords who are eager to get back to
business as usual. That is why I am here today, to show our
strong support and advocate wholeheartedly for H.R. 1451, the
Emergency Eviction Enforcement Act of 2021.
This bill will go a long way towards providing tenants the
protections and level playing field that they deserve when they
are in dispute with their landlords. Landlords will no longer
be able to ignore eviction moratoriums or try to create hostile
environments to push tenants off their property.
To understand the potential impact of this bill, you only
need to look at the crisis taking place in Congressman Cohen's
home district in Memphis, Tennessee. Though a federal order
will protect Americans from evictions until July, at least in
word, the reality on the ground right now is much different
since a Federal court essentially invalidated the moratorium on
evictions.
As local and national restrictions on evictions begin to
ease, thousands will be forced from their homes and into
distress, especially African American renters, whom we know are
more likely to face eviction compared to their White
counterparts.
So, with that, let me close for now, but look forward to
questions. The challenge is here for us in recognizing that
different things hit different communities in different ways,
and, even as we go to look to find new jobs and new
opportunities, African Americans are finding the time between
leaving one job and going to another is usually twice or longer
than it is for most other Americans.
Listen, I thank you very much and look forward to your
questions.
[The statement of Mr. Shelton follows:]
[GRAPHICS NOT AVAILABLE IN TIFF FORMAT]
Mr. Cohen. [Presiding.] Thank you, Mr. Shelton.
The NAACP has often been known as the conscience of the
country, and you are the voice of that conscience. Thank you so
much.
Our next Witness is Cindy Cole Ettingoff. Ms. Ettingoff is
the CEO and general counsel for Memphis Area Legal Services,
Incorporated. She is involved in the Tennessee Statewide task
force focusing on housing, unemployment, and access to justice.
Prior to joining Legal Services, she practiced in the areas
of labor and employment law, representing employers, employees,
and unions in OSHA, Wage and Hour, National Labor Relations
Act, title VII, FMLA, ADA, ADEA, and other employment law
matters.
Ms. Ettingoff is a commissioner on the Tennessee
Alternative Dispute Resolution Commission, past Chair of the
Tennessee Bar Association Dispute Resolution Section, current
President of the Tennessee Association of Professional
Mediators, and is the representative of the heralded Memphis
Area Legal Services, founded by Mike Cody and others.
Ms. Ettingoff earned her J.D. degree from the University of
Memphis Cecil C. Humphreys School of Law and has an M.S. in
cell biology and B.S. in microbiology from the University of
Memphis.
Ms. Ettingoff, you are recognized for 5 minutes.
STATEMENT OF CINDY ETTINGOFF
Ms. Ettingoff. Thank you.
I certainly appreciate the opportunity to speak with you
today, and, of course, you mentioned Memphis Area Legal
Services, MALS, to those of us. It is an LLC-funded nonprofit
law firm that provides pro bono legal services primarily for
individuals with low income or no income.
MALS also offers services through the Memphis Fair Housing
Center Program, which we administer, and that program serves to
increase homeownership opportunities; promote decent,
affordable housing; and ensure equal opportunity in housing.
All that to say MALS has a great deal of experience in the area
of housing, particularly when it comes to lawful and unlawful
evictions.
Now, as Mr. Shelton mentioned, while COVID-19 was stressful
for everyone, it was and still is a nightmare for poor people.
It has been an even greater nightmare for poor people of color.
It has been said that when America catches a cold, Black
America catches pneumonia, and that has certainly been the
experience of many of our clients.
As a result of COVID, many of our clients lost jobs. Many,
if not most of our clients, live paycheck to paycheck. As a
result, when job loss occurred, they had no reserves that would
have enabled them to continue to pay rent.
Now, while some employees are being asked to return to
work, not all are, and many of them are being asked to return
to the same job for less pay. So, the underlying economic
problems that exacerbated the COVID-generated eviction
emergency continue.
We are aware, of course, that the CARES Act eviction
moratorium and the CDC eviction moratoria were intended to
prevent the eviction of citizens who were unable to pay their
rent due to COVID-19. Despite those moratoria, the last 14
months, MALS has continued to receive calls from individuals
who are being threatened with unlawful eviction, or who had
actually already been unlawfully evicted.
Existing laws provide that if an eviction is unlawful, the
tenant has the right to bring a legal action, but the right to
bring an action is not at all the same thing as the ability to
bring a legal action.
Landlords well know that if a tenant did not have money to
pay rent, they are unlikely to have funds to pay for legal
representation. Those tenants frequently turn to MALS and other
legal aid organizations.
In fact, during the moratorium, MALS received approximately
1,200 requests for legal assistance that involved evictions,
and MALS takes as many of those cases as it can, certainly. Of
course, with results of high demand in staffing limits, there
are times when clients must be turned away.
National statistics reflect that 91 percent of landlords
are represented by counsel, while less than four percent of
tenants are represented by counsel. Clearly there is an
imbalance of access to justice.
So, that leaves us with the question of how do we level the
playing field to prevent unlawful evictions during national
emergencies, such as the COVID pandemic? What might be the best
remedy for unlawful evictions?
In my opinion, the best remedy for unlawful evictions is
for the evictions to never occur, and that requires deterrence.
To deter unlawful evictions, it is my belief that the penalty
for engaging in the unlawful conduct has to exceed the monetary
benefits of the content, and that is what H.R. Bill 1451 may
well do. It may Act as a deterrent and may thereby prevent
unlawful evictions.
Unlawful evictions cause so much harm to our communities
and to the future of our communities through our children. To
stop unlawful evictions, particularly during national
emergencies, a message must be sent to those landlords who
understand and exploit the imbalance of power between those who
can afford to fight against injustice, and tenants who cannot.
The threat of treble damages is certainly one of those messages
that can be sent, and it is a very clear message.
Now, I assure you that there is a need for such deterrence,
and I appreciate the opportunity to speak with you here today.
I am happy to answer any questions. I look forward to them here
shortly.
[The statement of Ms. Ettingoff follows:]
[GRAPHICS NOT AVAILABLE IN TIFF FORMAT]
Mr. Cohen. Thank you, Ms. Ettingoff, and go Tigers.
Our third Witness is Joel Griffith. Mr. Griffith is a
research fellow at the Institute for Economic Freedom and
Opportunity of the Heritage Foundation.
Previously, he worked as a researcher for a former member
of The Wall Street Journal editorial board and was Deputy
Research Director of the National Association of Counties, also
known as NACo. He also was director of the Center for State
Fiscal Reform at the American Legislative Exchange Council,
also known as ALEC.
Mr. Griffith received his J.D. from Chapman University Dale
E. Fowler School of Law with a dual emphasis in alternative
dispute resolution and federal income taxation. He received a
B.S. from Pensacola Christian College.
Mr. Griffith, you are recognized for 5 minutes.
STATEMENT OF JOEL GRIFFITH
Mr. Griffith. Thank you, Chair Cohen, Vice-Chair Ross,
Ranking Member Johnson, and other Members of the Committee, for
the opportunity to testify today. My name is Joel Griffith, and
I am a research fellow at the Heritage Foundation.
This testimony will focus on eviction moratoria, along with
a proposed private cause of action in Federal courts for
wrongful eviction.
The eviction moratoria of the past year unfairly burdened
property owners. With the cost of societal shutdowns, they
create unintended consequences, and they implicate serious
illegal and constitutional concerns.
Last year, for the first time in our Nation's history,
State and local governments intentionally suppressed and
criminalized entire swaths of economic activity. The eviction
moratoria, whether implemented by Federal, State, or local
governments, forced property owners to subsidize these
destructive shutdowns, and enabled politicians to shirk
responsibility.
Keep in mind, by December of 2020, the 10 States with the
fewest economic restrictions in place averaged far lower
unemployment than those States with draconian restrictions.
Economic conditions varied widely State to State. Just compare
Florida to New York.
Property owners in those States which are shut down should
not be forced to subsidize those State and local politicians
that are choosing to shutter these businesses, close schools,
and ruin livelihoods. Regardless of the intended beneficiaries
of moratoria, these eviction moratoria allowed many, who are
not even impacted financially, to live rent free throughout the
past year.
Data from the National Multifamily Housing Council showed
only a minimal increase of 2.2 percentage points in late rental
payments in July 2020 versus July 2019. Despite the relatively
small increase in the number of people that were making their
rental payments late, many local governments chose to
preemptively issue moratoria on evictions throughout the entire
pandemic.
The near complete eradication of evictions, coinciding with
only a slight rise in those making delinquent rent payments,
strongly suggests that this moratorium allowed many, who were
neither impacted by COVID-19, nor experiencing financial
hardship, to live rent free with no immediate personal
consequences.
These eviction moratoria produce harmful ripple effects.
Landlords may need to increase rents to mitigate the heightened
risk of future moratoria, prospective renters may find
themselves subject to increased security deposits and tighter
credit checks, and, ultimately, fewer affordable housing units
might be constructed.
Quality of life for other tenants is impacted as well as
landlords are unable to evict many tenants for disorderly
conduct, illegal drug use, and criminal activity.
Moratoria also invoke serious constitutional and legal
concerns. They often violate the Takings Clause of the Fifth
and the 14th Amendments, along with the contract clause.
Without a doubt, the CDC's ban on eviction proceedings was
unlawful, because it exceeded its congressional mandate.
The Executive Order last year prohibiting landlords from
using the court system to evict tenants until the end of the
year was predicated on the Public Health Services Act, which
authorizes regulations necessary to prevent the introduction,
transmission, or spread of communicable diseases. Examples of
congressionally authorized actions that were actually listed in
the Act come nowhere close to including eviction moratoria.
Even the order itself shows that this ban was meant as an
economic relief measure, not a tool to protect the public from
the spread of disease.
In short, both the CDC action itself, the eviction
moratorium, and the intent to counter the economic impact
rather than the health impact of COVID-19, violated the express
will of Congress. Even if Congress had authorized the CDC to
enact an eviction moratorium, such authorization itself would
have been unconstitutional.
Congress can only delegate to the Executive Branch the
powers granted to it by the Constitution, and the Commerce
Clause, upon which the CDC powers are based, does not provide a
basis for Congress to prohibit citizens from seeking legal
recourse in State courts for enforcement of contract
provisions.
All regulations enacted under the Commerce Clause require
that the regulation itself must be necessary and proper for
carrying into execution the powers granted to it by Congress.
Denying landlords access to State courts to enforce eviction
law is not a proper use of Federal government power, even if
the eviction process itself were economic in nature.
Banning access to State courts, forbidding a State court
from exercising its lawful jurisdiction is an abuse of Federal
power. In fact, such a ban on access in courts is itself a
violation of the First amendment of our Constitution, which
guarantees that we have the right to petition the government
for redress of grievances, and this includes the right to
request the court to issue an order for eviction.
I thank you again for inviting me today, and I look forward
to your questions.
[The statement of Mr. Griffith follows:]
[GRAPHICS NOT AVAILABLE IN TIFF FORMAT]
Mr. Cohen. Thank you, Mr. Griffith.
Our final Witness is Katy Ramsey Mason.
Ms. Mason is an assistant professor of law and director of
the Medical-Legal Partnership Clinic at the University of
Memphis Cecil C. Humphreys School of Law, from which I received
my degree as well.
Prior to joining the Memphis law faculty in 2018, she was a
visiting associate professor of clinical law and Freedman
Fellow with the George Washington University Law School.
From 2011-2015, she was an Equal Justice Works AmeriCorps
legal fellow and housing attorney at Lenox Hill Neighborhood
House in New York City, where she represented low-income
tenants and families in eviction cases and other housing-
related matters.
Her scholarship focused on landlord-tenant law, eviction
court process, poverty law. Her recent work has appeared in the
UCLA Law Review and the University of St. Thomas Journal of Law
and Public Policy.
She received her J.D. and M.A. in Latin American studies
from the University of Wisconsin-Madison, and her B.A. from
Middlebury College.
Professor Ramsey Mason, you are recognized for five
minutes.
STATEMENT OF KATY RAMSEY MASON
Ms. Ramsey Mason. Thank you. Good afternoon.
I thank Chair Cohen, Ranking Member Johnson, and the
Members of the Committee for inviting me to speak this
afternoon.
My name is Katy Ramsey Mason. I am an assistant professor
of law and director of the Medical-Legal Partnership Clinic at
the University of Memphis Cecil C. Humphreys School of Law. Go
Tigers.
I have represented low-income tenants facing eviction in
Wisconsin, New York, and Tennessee. As Chair Cohen mentioned,
my scholarship focuses on landlord-tenant law, the eviction
court process, and poverty law.
Since the COVID-19 pandemic began in March of 2020,
millions of Americans, many of them low-income people of color,
have been put at risk of eviction due to nonpayment of rent as
a result of the devastating financial impacts of the pandemic.
Recent estimates suggest that around 11 million Americans
are behind on rental payments despite millions of dollars of
Federal funding that has been allocated through the pandemic
stimulus bills.
Early on in this crisis, government at all levels--local,
State, and Federal--recognized the severe risks of spreading
COVID-19 that were associated with housing displacement and
imposed various restrictions and moratoria on eviction.
Unfortunately, illegal evictions, where landlords take the
law into their own hands to drive out tenants from rental
properties, are an ongoing problem. The issue is particularly
serious during a time of national emergency, like the COVID-19
pandemic, when displaced and homeless people are especially
vulnerable to contracting and spreading the virus. It is
critical that Congress Act to address this problem, and
proposed bill H.R. 1451 will provide important protections for
tenants at risk of being illegally evicted.
Even though self-help evictions are illegal in every State,
they, nonetheless, continue to happen with regularity. All
States have a judicial process in place to govern evictions,
but research from leading eviction scholar, Matthew Desmond of
Princeton, suggests that nearly half of all evictions take
place informally outside of the judicial system. Many of these
informal evictions fall into the illegal self-help category.
During the pandemic, the problem of illegal evictions has
been exacerbated. In June 2020, 91 percent of legal aid
attorneys across the country who were surveyed by the National
Housing Law Project, reported illegal evictions in their areas.
While most States do allow tenants to sue landlords who
have engaged in illegal self-help, proposed bill H.R. 1451 is
not duplicative of existing remedies. It would be an important
addition to tenant protection measures that have not always
allowed for effective relief.
First, H.R. 1451 is intended to apply only during times of
federally declared emergencies, such as the COVID pandemic. The
definition of illegal self-help, and the available remedies,
can vary significantly from State to State, and this bill
provides uniformity and clarity as to what constitutes illegal
behavior, and what relief is available to people who are
affected.
Second, H.R. 1451 provides multiple mechanisms for
enforcement, which is an important improvement over previous
Federal tenant protection efforts, including the CARES Act
eviction moratorium and the CDC's order that has halted many
residential evictions.
H.R. 1451 provides both a private right of action for
tenants who have been illegally evicted during a national
emergency, and also allows the United States Attorney General
to bring causes of action against violators of the law. This
will go far toward making the law effective in its purpose.
Compliance will be encouraged, bad actors will be deterred, and
people who are evicted during emergency times will have a
better chance of obtaining the relief that they are entitled
to.
Finally, congressional action on this issue is necessary to
provide effective protection to vulnerable tenants during times
of crisis. The most comprehensive set of protections for
tenants during the current pandemic came not from Congress, but
from the CDC. That order has been vulnerable to legal
challenges, something we have felt acutely here in Memphis.
We are currently the only jurisdiction in the country where
the CDC's order is unenforceable, and our low-income tenants
have paid the price. Congressional action, as opposed to agency
action, would have forestalled many of the claims being brought
in the Federal lawsuits against the CDC's order, and provided
stability and clarity to the tenants it is intended to protect.
I thank you for your time this afternoon, and I look
forward to your questions.
[The statement of Ms. Ramsey Mason follows:]
[GRAPHICS NOT AVAILABLE IN TIFF FORMAT]
Mr. Cohen. Thank you, Professor.
We will now proceed to the five-minute Rule with questions,
and I will recognize myself for five minutes.
Mr. Shelton, Mr. Johnson rightfully said in his opening
statement that traditionally, landlord-tenant law is determined
by the States. The Federal government, of course, has gotten
into certain issues in the Federal Housing Act, which addressed
discrimination in housing.
Why is it that, during a national pandemic, as this bill
attempts to do, that the Federal government should be the
appropriate sponsor of legislation and passer of legislation to
protect people who are affected by a national emergency, and
particularly African Americans who are, as I think somebody
said, the cold and the flu are the pneumonia--the folks who get
the pneumonia?
Mr. Shelton. Thank you very much.
There are a number of reasons. First, of course, when we
think about a pandemic, it is not something that just impacts
people in a local jurisdiction or a particular State. We are
talking about something that has impacted people throughout the
United States and outside the United States, throughout the
world as well.
As such, we look forward to our Federal Government being
able to address issues and challenges along these lines, and
that is why the Centers for Disease Control is given the kind
of power and authority it is as we see how, when a disease like
this pandemic hit, it doesn't limit itself to a certain city.
It doesn't limit itself to State lines, as most of our
Federalist laws are crafted to address. It expands itself cross
State lines, other lines and so forth, to create the damage we
are seeing.
As you know, even as our President is visiting other
countries in Europe, he recognizes that the impact of the
coronavirus is something that is hitting in very different
ways. The discussions going on in Britain and otherwise is
showing new strains that have created a new set of problems,
again, that are much broader and more severe than something in
a local community or neighborhood.
Mr. Cohen. Thank you, Mr. Shelton.
Ms. Ettingoff, who gave me the cold and pneumonia story,
you have worked with people in the vineyards to--and worked
there with people on the ground in Memphis concerning
evictions. What impacts can evictions have on tenants beyond
just the loss of the current housing, and what does the loss of
their current housing do to a person's self-esteem, children's
self-esteem, and possibly, even during a pandemic, more
importantly during a pandemic, can it cause them to be more
vulnerable to disease and spreaders?
Ms. Ettingoff. Thank you, Mr. Cohen.
Absolutely. Loss of housing means you are additionally set
back. Not only are you in a situation where you are unable to
pay your housing, your rental fee, but you had at least your
belongings. Your child had their Lovey. Your child had their
schoolbooks. Your child had their clothes or their shoes.
To come home and find those belongings either sitting at
the street, or more likely, gone, taken, can be an absolute
trauma for a child. Then the next situation is where is the
child and the parent going to live? Are they going to have to
split up children? Are they going to have to live in the car?
Are they going to move from spot to spot?
It affects children's education because, even though--and I
know that there is a bill that prohibits it, in Tennessee, we
are still having a little difficulty with the notion that you
do not have to have a permanent address to register for school.
We are still kind of fighting that one on some days, and I am
sure that is true in other places as well.
So, what that means is, children are missing school. They
are missing school because they don't have their schoolbooks or
they don't have their clothes, or they didn't sleep the night
before because they were afraid to go to sleep.
So, as a result, you have got sort of an educational
background setback. In addition, wherever those children may
land may or may not be safe. There may be violence. There may
be health issues.
So, for those reasons, it is very, very much more than just
losing the apartment that you were living in.
Mr. Cohen. Thank you, Ms. Ettingoff.
Thank you. Thank you.
Ms. Ramsey Mason, tell us specifically why you think
Congress needs to Act to address unlawful evictions during
national emergencies, why it is distinguished from the
traditional Rule of law, which is that it is up to the States,
but that why the national emergencies, should we look outside
of the traditional States, and how tenants experiencing
unlawful evictions, how would they benefit from access to
Federal courts?
Ms. Ramsey Mason. Thank you, Mr. Cohen. I will try to keep
my answer brief.
Congress should act, because Congress has acted in many
other capacities during the pandemic to address some of the
worst impacts that the country has seen as a whole in the last
14 months, and evictions are no different. Evictions, in fact,
as Ms. Ettingoff pointed out, have consequences that go far
beyond just the legal process, and can impact people for years
to come.
It is entirely appropriate for Congress to Act in this
situation, in the same way that Congress has mandated mask
requirements, in the same way that Congress has provided
financial relief to businesses, to people facing unemployment,
to people at risk of not being able to pay their mortgages.
Tenants should be treated the same way.
As I pointed out in my testimony, the fact that Congress
did not Act with regard to an eviction moratorium after the
CARES Act moratorium expired has been to the detriment of low-
income tenants.
Mr. Cohen. Thank you very much. My time has expired, and I
recognize Mr. Johnson for five minutes.
Mr. Johnson of Louisiana. Thank you, Mr. Chair.
Mr. Griffith, thanks for being here in person. I appreciate
you making the trip all the way from Miami. I think you get the
credit for coming the furthest.
There is an inclination right now among many of our
Democrat colleagues in Congress to Federalize everything, not
just housing with legislation like H.R. 1451, but we see it
with voting and policing and many other issues.
Let's talk about housing. Can you discuss the importance of
housing law remaining at the State and local levels, rather
than a Federal one-size-fits-all issue? I know you talked about
it a little bit in your opening, but maybe elaborate a little
bit more.
Why is it better, in your view, for eviction policies to be
decided on the local level?
Mr. Griffith. Thank you for your question.
Well, it is very basic--on a very basic level, Congress,
any time they enact legislation, need to ask is this
constitutionally authorized? At its very basic level, as we
discussed earlier, this is not a proper exercise of Federal
power because the Federal government does not have a role in
determining what State law is on local housing policy, but
whether or not it is a proper use of government power. We can
talk about the practical application of that.
So, even if it were constitutional for Congress to be
involved, when we are talking about housing policy, it is best
for it to be decided at the local level because it is the best
way in which to actually hold local political leaders
accountable for the decisions they make.
So, for instance, if the eviction law does not reasonably
protect tenants, then the general citizens--citizenry can
actually lobby their local politicians to change the law, to
make it more difficult to evict, to change the law. When it
comes to a situation that we saw in the past year, where we did
see so many people in dire economic straits, oftentimes not
because of the pandemic itself but because of the shutdowns
itself, it actually allows people to hold those politicians
accountable, because, if you are feeling the impact of the
economic strain that is caused by a shutdown, then you are able
to go directly to those political leaders and request that
things be changed.
When you Federalize this, you diminish that accountability,
and eliminate that responsibility that local politicians should
have.
Mr. Johnson of Louisiana. That is a great summary. Let me
ask you, too, we are also worried about overreach in
legislation like this. So, what could an effect of H.R. 1451 be
in terms of--let's just say by way of example, Biden
Administration declares some sort of noncrisis and national
emergency. Let's say, if this bill were to become law, could
President Biden, for example, declare climate change a public
health emergency, and then, therefore, effectively prevent
landlords from evicting nonpaying tenants from their property?
Mr. Griffith. That could be a very valid concern. If you
look at the manner in which this emergency--the National
Emergency Declaration was put into effect, it was very vague,
just the enactment itself.
So, if we can do that for this purpose of declaring--saying
there is a pandemic and putting a National Emergency in place
to take all these economic actions, the precedent would indeed
be set to have the executive branch trump the Legislative
Branch and begin enacting regulations under the guise of such
an emergency.
That is exactly what we saw happen over the past year with
the CDC guidelines, putting in place economic restrictions that
had nothing to actually do with the health crisis, but were, in
effect, trying to curry political favor.
Mr. Johnson of Louisiana. If we open that Pandora's box--
you mentioned briefly in your opening--the effect that might
have on landlords, especially mom-and-pop landlords, what might
they do in anticipation of any future moratoria?
Mr. Griffith. Well, if the Federal government has the
ability to bring a cause of action against these private
landlords, that, in many instances, will quell their ability to
actually move through and protecting their private property
rights, because, even if they are in the right, when you, as a
private landlord, especially a mom-and-pop landlord, are up
against the power and the funding of the Federal government,
the attorneys' fees themselves could put you out of business.
That would be a danger.
Mr. Johnson of Louisiana. Because I have talked to
landlords in my district back home, who are deeply concerned
about this, and their own families were affected because their
income levels were shut off, and, so, their own families are
going hungry at the same time that all these other crises are
going on.
So, the question is: Wouldn't some people, mom and pops in
particular, just get out of the business, stop offering these
places for rent, especially for low-income housing units? Then,
also, wouldn't those who are still in it raise their rents,
because they would have to cover the risks, right?
Mr. Griffith. Yeah. If you are a smaller real estate
investor with several properties that you have accumulated to
prepare for retirement, for instance, the risk that just one
of, say, three of those units might end up in an extended case
of somebody unlawfully possessing that property, that could put
you out of business. Like, if you are a larger management
company with hundreds of properties, you can spread that risk
across.
This will, because of that, threaten to further concentrate
this ownership in the hands of these larger management
companies to the detriment of those that are looking to have a
secure retirement by responsibly acting throughout their
careers and purchasing two or three of these units to help them
to retirement.
Mr. Johnson of Louisiana. Also, reduce the availability of
low-income housing.
I yield back my time. Thank you.
Mr. Cohen. Thank you, Mr. Johnson. I know you, like me, are
available to constituents at all moments of the day, and it
would take many, many public servants to equal your efforts.
Ms. Ross, you are recognized for 5 minutes.
Ms. Ross. Thank you, Mr. Chair, and thank you to all the
Witnesses for joining us today.
I just want to remind my colleagues that this hearing is on
self-help evictions that are illegal under the law, and that we
have heard testimony about these types of evictions that have
happened both before the pandemic, and during the pandemic, and
are likely to happen after the pandemic.
As we are talking about the pandemic right now, we know
that millions of Americans have struggled with homelessness
during the pandemic, and millions more are at risk of eviction
when the federal and State eviction moratoria expire.
People who are chronically homeless and housing insecure
are at substantially higher risk of poor health, as a lack of
stable housing, can result in disruptions to employment, social
networks, education, and the receipt of social services
benefits. In short, the pandemic exacerbated issues that
already were occurring.
Despite local, State, and Federal eviction moratoria, some
landlords have engaged in these self-help evictions,
nonetheless. In my State of North Carolina, nearly 71,000
evictions were filed between March 2020 and February 2021.
A constituent from my district lost her job during the
pandemic, and she and her baby girl were evicted from their
home just before Christmas, because they were $380 short on
rent. They didn't know where to go, and they didn't know about
the eviction moratorium.
Another constituent and her two children were evicted from
their home despite being up to date on rent and providing the
landlord with a CDC declaration form temporarily halting
residential evictions. However, their lease was up, and their
landlord refused to offer renewal.
This is a reality that Americans across the country are
facing, and, as I said, were facing before the pandemic.
My first question is for Professor Ramsey Mason. Despite
being illegal in all 50 States, self-help evictions persist.
Can you tell us why?
Ms. Ramsey Mason. Thank you, Representative Ross.
I think the short answer is because it is easier and
because there is not, in many States, appropriate deterrent for
landlords who seek to engage in self-help. Self-help can take
many forms, as H.R. 1451 contemplates. It can be something as
extreme as a landlord hiring a team of private security guards,
showing up at a tenant's home and forcibly removing the tenant
and his or her belongings from the property.
It can include changing the locks while the tenant is away
from home at the grocery store, at work, picking up kids from
daycare, whatever the case may be. It can also include things
like calling the utility company and asking for the electricity
and the gas and the water to be shut off, or simply threatening
a tenant to the point that they actually choose to leave the
property because they feel unsafe.
All those are situations that we hear about; that we, as
you pointed out, have heard about prior to the pandemic, during
the pandemic, and, unfortunately, I am sure will continue to
happen as the pandemic ends.
While every State does allow tenants who have been
illegally affected, or evicted to sue their landlord
proactively to claim damages. On a practical standpoint, for
many tenants, that is simply not possible. I mean, tenants are
experiencing a number of crises in the aftermath of an
eviction, and going to court, or finding a lawyer, going to
court, filing a lawsuit, is oftentimes--
Ms. Ross. I am going to have to stop you there, because you
are leading into my next question for--which is for both you
and Ms. Ettingoff, and I would like Ms. Ettingoff to go first
with whatever time I have remaining.
Is part of this problem due to the fact that legal services
aid has been cut so much, and there is a reluctance to set up,
fund legal services attorneys?
Ms. Ettingoff. Well, it certainly doesn't help things.
Let's put it that way. I think I mentioned that the demands far
exceed what we have in the way of staffing, so that is
certainly true from that perspective.
I think that, as Professor Ramsey Mason was about to say, I
believe that because we cannot train people really well enough
to represent themselves, they don't have the ability to go down
to General Sessions, and they don't know the rules of evidence,
and they are merely in a position where they are at someone's
mercy--the landlord's mercy, unless legal services can assist
them, because they are not going to be in a position where they
can use what little money they have got that has to go for food
or new housing, to divert that money towards paid legal
services.
Ms. Ross. Oh, the Chair has told me that we can also have
Ms. Mason respond.
Ms. Ramsey Mason. Thank you.
I am not familiar with the intricacies of legal services
funding. However, I do know that having attorneys for tenants
is an incredibly important aspect to preventing illegal
eviction, because, if tenants are represented and are able to
successfully bring claims in court, it will Act as a deterrent
to future bad actors, and it will also empower other tenants to
assert claims that are valid in that situation.
Ms. Ross. Thank you, Mr. Chair. I yield back.
Mr. Cohen. Thank you.
There is hope on the way--help on the way. We have a letter
urging more funding for legal services. In the past, I was
joined by Mr. Kennedy from Massachusetts, and this year's Mr.
Fitzpatrick, Mr. Upton, Mr. Emmer, Ms. Dingell, and Ms. Scanlon
has been phenomenal, all as co-leads on the letter, and
everybody is welcome. So, hopefully that will happen.
Ms. Fischbach, you are on the video, I guess. There you
are. You are recognized for five minutes. Thank you. I have no
jokes--
Ms. Fischbach. Thank you very much.
Mr. Cohen. I have no jokes today.
Ms. Fischbach. Oh, no jokes? Okay.
Mr. Cohen. No jokes.
Ms. Fischbach. Well, I appreciate that.
I am just very concerned. I obviously rent a--represent a
very rural district, and I am very concerned about the effect
of this on what is a tight housing market, and so, I am
wondering, Mr. Griffith, if you could--I know you talked a
little bit about it with Mr. Johnson, but maybe you could
expand a little bit of the effects on those small landlords.
In addition to that, maybe expanding into what it is going
to do to the availability. We are looking at a tight market in
rural Minnesota, and I am wondering if you have any thoughts on
how it would affect this legislation would affect the
availability?
Mr. Griffith. Yep. Thank you, Congresswoman.
Well, if we think about what actually happened this past
year, for the first time in our Nation's history, we actually
criminalized landlords, property owners, who wanted to simply
avail themselves of legal protections. This was a complete
violation of that First Amendment, guaranteed right to access
the courts to enforce basic contract law.
The Executive Branch went a step beyond, and actually
criminalized any State court that would choose to actually
enforce their own laws. This has not happened before in the
history of the United States. This should be troubling to
anyone who cares about the Rule of law.
If you are a landlord, especially a small landlord, now you
have to go into every contractual arrangement with a new tenant
with the understanding that, for a future national emergency,
that the executive branch may put a moratorium on your ability
to actually take hold of your constitutional right to enforce
the contract that you have made with someone else.
That is going to cause severe reluctance on the part of
landlords, and this will impact affordable housing on top of
it. I think the primary concern here should be the assault that
we saw on the basic Rule of law and basic private property
rights.
Ms. Fischbach. Thank you, Mr. Griffith. I appreciate that.
Again, I will just express I have real concerns, because,
as I have traveled across my district, the one thing that
people are talking about is there is just a huge need for more
housing. When we have landlords who are willing to do that and
put their money on the line to provide housing, rental housing
for folks, we are just causing them more headache. I think that
it will--I think Mr. Griffith is right. It will--it will really
disincentivize people from entering that market.
That is all I have, and I will yield back, Mr. Chair.
Mr. Cohen. Thank you, Ms. Fischbach. You have not been
affected by the congressional drug of taking every minute that
you have to talk. You limit yourself to what is relevant.
Thank you.
Who is next? Mr. Raskin, you are recognized for 5 minutes.
Mr. Raskin. Mr. Chair, thank you much. I am wondering
whether landlords that are engaged in these vigilante evictions
outside of the law are just doing it unilaterally on their own
or are there law firms or businesses that have organized to
encourage them to do this or to be there to manipulate the
process.
Ms. Mason or Ms. Ettingoff.
Ms. Ettingoff. I can address that slightly. There is a grid
called Get 'em Out that pretty much perpetually pushes the
notion of removing tenants and that is how they make their
money, that is what they are interested in. In addition, at
least locally for us, there has been one law firm with one
particular attorney that I can't say definitively that he has
pushed the landlords to do it, but he has certainly not
discouraged them in any way, even on cases where there should
have been some forbearance, he has been unwilling to reason at
times. Of course, that is the nature I guess of his business
and that is how he earns his livelihood.
However, all attorneys represent the notion that you have
the ability to communicate with your client and that you can
attempt to direct your client in the direction that might be
better for them in a broader sense. That does not appear to
have been done in all cases. So, certainly, there has been some
indulgence of the notion of going ahead and sort of engaging in
conduct that borders on unlawful or truly isn't unlawful.
Mr. Raskin. Ms. Mason, do you have anything to add to that.
Ms. Mason. I think Ms. Ettingoff is in a better position
than I am to have the bird's-eye view to answer your question.
It certainly is an issue where there are many attorneys who are
responsible and try to discourage their clients from engaging
in illegal behavior.
Again, the fact that it is so difficult for tenants to
actually push back when this happens. Many times, we see
stories in the media are the way that tenants get traction on
these situations. That simply should not be the case. They
should be able to effectively access the courts.
Mr. Raskin. Thanks. Mr. Shelton, let me ask you. It seems
like we have got kind of a practical problem out there because
I remember in the thick of the crisis when people were being
thrown out of work and everything looked kind of hopeless,
landlords and tenants got together really to push for aid to
the tenants so that they would be able to get aid filtered
through the States and the counties down to them and then they
would be able to pay for the rent. So, part of what we might be
seeing is just the effect of that process not closing the loop.
I mean I just asked my staff to get me some stats on this
and there is more than $30 million that has been left
undistributed in the largest county in my district, in
Montgomery County. That is money that has not gone to tenants
for the purposes of paying their rent. So many people are
unemployed and broke and so on. So, what can we do
structurally, to deal with this problem to get people the
resources they need so we don't end up in this hand-to-hand
combat in court or outside of it.
Mr. Shelton. I would be in strong agreement with it going
in that direction. That is to say as we looked at what is
happening across the country, some of the solutions that came
to mind is things like a modification of section 8 type
landlords, as well as we do to others. Making sure that people
have a place to stay, and we don't find individuals and
families homeless is crucial. We have seen what happens when we
don't.
Many of us still remember what happened with the economic
downturn and the provisions we worked so hard together to put
in place with Dodd-Frank Wall Street reform bill to fix many of
these problems as well. As I am looking at issues along these
lines, we know what happens. As a matter of fact, the economic
downturn of 2008 was not that long ago. We learned with some
solutions from that as well.
All that to say is that we need to make sure that there are
many families that also do make their living owning small
tenements, one, two, three, and four family apartment
buildings. My parents were very much in that category as well.
They also worked very hard to make sure that people could stay.
That should be the struggle here as well. When a pandemic
happens, it crosses many governmental lines. When issues like
this happen as we are bringing solutions we have to pull from
many governmental pots to provide some solution.
Mr. Raskin. I appreciate that.
I yield back to you, Mr. Chair.
Mr. Cohen. Thank you, Professor Raskin.
Ms. Jackson Lee, no? Sorry, my mistake Mr. Johnson from the
great State of Georgia.
Mr. Johnson of Georgia. Thank you, Mr. Chair for holding
this hearing.
Mr. Griffith, you have spoken with great indignation in
your voice and in your manner as you have testified
passionately about how eviction moratoria has hurt landlord
property owners. Are you familiar with the fact that the CARES
Act signed into law by President Trump provided landlord
property owners with billions of dollars in PPP and economic
injury disaster loans to cover their lost rental payments?
Mr. Griffith. Thank you, Congressman. Thank you for your
question. Yes, I am aware of that. Regardless of whether or
not--
Mr. Johnson of Georgia. Okay. In your opinion, Mr.
Griffith, was CARES Act legislation to protect mom and pop
landlords by providing them with grants to cover their loss of
rental income? Was that a proper use of congressional authority
or was it an assault on the Rule of law as you described
eviction moratorium as?
Mr. Griffith. Yeah. Thank you. A very important question.
Unfortunately, politicians from both political parties
throughout the past year have gone beyond what the Constitution
prescribes for congressional action. When you look at the aid
that was delivered throughout COVID--
Mr. Johnson of Georgia. So, I don't want to belabor the
point. I know that some folks, and you are probably one of
them, just don't believe that government should be there to
protect anyone. That it should just be a matter of survival of
the fittest and only the strong survive, that Ayn Rand
mentality that my colleagues on the other side of the aisle
espouse.
I understand that you probably feel that way. Of course, we
are talking about legislation here that is going to protect
people from unlawful evictions. By the way, sir, you do agree
that folks should follow the law when--I mean, there is a law
in place, Mr. Griffith, you do believe that folks should go by
the book and not resort to self-help evictions. Correct?
Mr. Griffith. Congressman, just to be clear, when it comes
to my personal beliefs and the proper role of government there
certainly is a role for government to play in assisting people
in need, but what we saw over the past year was government
action that went far beyond targeted direct--
Mr. Johnson of Georgia. President Trump signed the
legislation himself. Right?
Mr. Griffith. That is right. Politicians of both parties at
times--
Mr. Johnson of Georgia. Come on now, Mr. Griffith.
Mr. Griffith. Well, if you look at the--
Mr. Johnson of Georgia. You are trying to have it both
ways.
Mr. Johnson of Louisiana. Would you let him answer the
question?
Mr. Johnson of Georgia. Let me move on, sir.
Mr. Shelton, what would you say to those who would say that
eviction moratoriums are an unlawful limit on their property
rights when you are at the same time offering them money to
help get them through the emergency once in a century pandemic
that we were all faced with.
Mr. Shelton. Let me just say that I would say that we need
to bring all government resources to bear. Certainly, as we
look at what the usual issue is for those who happen to own
apartments and so forth, we know that most of the issues that
affect them on a daily basis are closer to home.
When we are talking about a pandemic like this, a
coronavirus pandemic, which hundreds of thousands of people
have already died and the impact crosses every line, economic,
race, ethnicity, gender, and otherwise. Then we know that we
have to bring to bear the resources from all those places. The
money was in place and there is still resource to help those
who own the apartment buildings, and we should help them as
well. Allowing individuals and families to be put out of their
apartments, to be put out of their mental homes in some cases.
I think it is outrageous. We have solutions--
Mr. Johnson of Georgia. Let me stop you there. Thank you
for that answer. Across the course only 10 percent of tenants
are able to acquire legal representation in evictions
proceedings. Professor Ramsey Mason, how will that fact be
mitigated by the legislation that our Chair has proposed, H.R.
1451? How will it help in this circumstance?
Ms. Ramsey Mason. Thank you, Representative Johnson. It
would help specifically in as I mentioned earlier the multiple
enforcement mechanisms that the legislation contains. H.R. 1451
allows not only for an individual who has been affected by an
illegal eviction to bring a private cause of action in court on
behalf of him or herself, but also for the Attorney General of
the United States to bring an action against a landlord who has
violated the law.
That is an incredibly important protection for tenants who
are not in a position for whatever reason to assert their own
rights or in referencing Congressman Raskin's question earlier,
if there seems to be a systemic pattern by particular groups of
people who are carrying out illegal evictions.
The Attorney General is certainly in a better position to
address that sort of problem than any individuals would be.
Mr. Johnson of Georgia. Thank you. I am out of time. I
yield back.
Mr. Cohen. Thank you, Mr. Johnson.
Our next Congressperson to ask questions will be Ms. Sheila
Jackson Lee for five minutes.
Ms. Jackson Lee. Thank you very much, Mr. Chair. It is
extremely important to hold this hearing. Thank you to all the
Witnesses. I am glad that throughout the testimony that has
been given in the question-and-answer time, the record has
already been established that there is a concern, Mr. Griffith,
for the mom and pop owners, the retired persons, and the
respect for property. I don't think any of us have negated
that.
I work with a lot of real estate persons who themselves own
property, small businesses. We have the greatest respect for
their economic engine as well.
Let me try to emphasize what this bill does. We have said
it over and over again. I think it has been carefully crafted.
As it is marked up, your concern certainly should be readily
addressed, but it is to deal with self-help evictions during
national emergencies. That is a confined, refined area.
It only represents or acts as a civil rights buffer to the
disastrous response that poor people have been able to--
unfortunately have been the victims there of.
So, let me under the CARES Act moratorium there was
certainly more governance, that eviction protection expired on
July 24, 2020. Then came the CDC moratorium which did not have
the firewalls. That moratorium is currently expire on June 30,
2021.
As I was coming up today, I was reading that surges in
COVID-19 are now surging in States like Texas, because people
have randomly put in orders so that--randomly put in orders
that would encourage unfortunately of the virus surging because
of the delta new variant.
So, we are not out of the pandemic yet. We don't know how
long we are going to be in an emergency. We might need to
extend it. So, the current evictions under CDC does not protect
us against vacating orders and it permits landlords to charge
fees and penalties.
Let me just say on the record and I have to quickly ask
this question, despite local, State, and Federal prohibitions
of self-help evictions are changing locks, cutting off
utilities, refusing to make essential repairs, removing their
belongings, harassing tenants to create an environment where
tenants will leave on their own.
In my own district, and Black people are only 13 percent of
the total population but are 40 percent of the homeless
population in this nation. In addition, Black Americans are far
more likely to be evicted. Latinx communities' 26.1 percent
severely monetarily burdened. They too are victims of
evictions.
So, as a story someone who had a been a trailer home for 10
years, Cristina, I won't put her last name in, they spent three
months without electricity and water because they had missed
just a minor amount of the rent.
So, let me go to Mr. Shelton. This gives you a right of
action, almost like the Voting Rights Act in section 2 where it
happens to you, you can go in and try to get a remedy. Tell me
what is so unusual to allow individuals who have had their
water turned off, who have been charged fees and been given
every sort of trap to get you out of there with a family, what
is wrong with having the legitimate right to an action, a
private action or the Attorney General having such when all of
the rights have been in property owners as Mr. Griffith has
said.
We know property means. Many things have been property that
certainly have been inappropriate in America. Can you give the
answer about the validity of that right of action for these
people who are most victimized under your civil rights
knowledge?
Mr. Shelton. It is crucial that they have that protection
and power as well. Some of the issues that have come up in our
discussions just a bit earlier from those who work for Legal
Services now speaks to the issue expertise it takes to maneuver
through the system rights in which [inaudible] rights can be
protected [inaudible].
Let me just say the long run, I would say that there should
be nothing that would prevent that right from being protected.
Let me also say we should make sure there are more resources
available for important organizations like Legal Services.
As I have worked with them in eastern Missouri, as well as
in Boston, Massachusetts is able to carry out those
responsibilities thoroughly.
Ms. Jackson Lee. So, your view is that a private right of
action does it not contravene the Constitution and the Fifth
amendment on the right to property or due process. It does not
contravene, because there is a court that will make a
determination on behalf of the tenant and the landlord. Is that
not true?
Mr. Shelton. That is absolutely true.
Ms. Jackson Lee. Their property rights would not be
snatched away without that intervening court. When the Federal
action from the Attorney General comes, it is not snatched away
under this particular legislation. There is an arbiter, which
is the court. Is that not right?
Mr. Shelton. That is absolutely true.
Ms. Jackson Lee. Would it be shameful to leave poor people
with no action whatsoever, even allowing the Legal Services
Corporation to be able to go into court on their behalf?
Mr. Shelton. I believe it would be absolutely
unconstitutional.
Ms. Jackson Lee. Thank you so very much.
I yield back, thank you, Mr. Chair.
Mr. Cohen. You are welcome, Ms. Jackson Lee. I appreciate
each person who has attended this Committee meeting and I
appreciate our witnesses. It has been a good hearing, an
important hearing for the American public who have been
affected by the coronavirus and unfortunately had difficulties
with landlords maintaining their homes.
That concludes today's hearing.
Ms. Jackson Lee. Mr. Chair, I have some articles, if I
might.
Mr. Cohen. Without objection.
Ms. Jackson Lee. I just want to call their names off
because they are important articles if I might very quickly. I
ask unanimous consent to put into the record how Houston areas
families are being forced from their homes without an eviction.
It tells the story of Cristina Rea who had a been in a trailer
home for 10 years and the landlord turned off the water and the
power in the waning hours of a very hot Houston summer with her
and her family.
Then HUD May 18, 2021, growth of homelessness during 2020
was devastating even before the pandemic. I ask unanimous
consent to place these articles into the record.
Mr. Cohen. Without objection, it will be done.
[The information follows:]
MS. JACKSON LEE FOR THE RECORD
=======================================================================
[GRAPHICS NOT AVAILABLE IN TIFF FORMAT]
Mr. Cohen. That does conclude today's hearing. We thank our
Witnesses again, our Memphis Witnesses, and our Washington
Witness, and our Miami Witness. Thank you for being here and
for my tardiness we got the hearing concluded. I thank the
Members of the Committee and Ms. Ross for sitting in.
Without objection, all Members will have five legislative
days to submit additional written questions for the Witnesses
or additional materials for the record.
The hearing is adjourned.
[Whereupon, at 4:56 p.m., the Subcommittee was adjourned.]
[all]