Just a Landlord

An important piece from DSnews

In an opinion piece published on the Informed Comment website, John Buell, a former professor at the College of the Atlantic, observed that an after-effect of the COVID-19 pandemic’s economic trauma will weigh on the housing market as homeowners and renters struggle to keep up with housing costs.

“If foreclosures and evictions are standing in the way of recovery, it is also safe to say that the draconian cuts in budgets of state and local governments translate into wage reductions and/or unemployment for public sector workers and thus more pressures on the housing market,” Buell wrote. “If homeowners and government workers are not able to create sufficient demand to restore economic growth the federal government must step in. State governments are constitutionally prohibited from borrowing for daily expenses.”

Although the CDC guidance issued last Friday provides a mechanism for owners to challenge declarations that appear fraudulent, it should have little overall impact. If a large portion of the tenant population has no ability to pay rent or simply decides not to pay, housing will fail.

The Census Pulse shows nationwide 17.9% of tenants did not pay their August rent. (The reporting trails by about three weeks. Sept should be out next week) https://www.census.gov/data/tables/2020/demo/hhp/hhp15.html Scroll down to the housing tables.

Wisconsin is doing better at 11.9%. I attribute our slightly better fortune to our tenant advocates, our Governor, and those who support landlords working far more collaboratively than other areas. Some metros are hovering around 20% of tenants who are behind, Los Angeles nearly 19%, NYC ~23%.

When you take into account that in good times typical owners receive 7-9% of the gross rent for their effort and investment, and today collections are off by 18%, it is easy to see we are on a collision course with massive housing failures.

A scarey side note: Nationwide 10.8% of homeowners did not make last month’s mortgage payment. This will open the door to another corporate housing buy out. https://theintercept.com/2018/01/20/you-think-your-landlord-is-bad-try-renting-from-wall-street/

It is estimated that unpaid rent by 12/31/2020 will be $34 Billion. This deficit will devastate both renters and housing for many years to come. In turn the harm to housing will continue to haunt tenants through reduced housing choices and increased future rents as owners try to stabilize.

Whether moratoriums exist, the true need is for rent assistance. This need has existed well before COVID. If renters are able to pay their rent, they avoid eviction and insurmountable debt, while enabling owners to pay their obligations as well. So far our federal government is failing at providing that assistance.

A well thought out comment on the post moratorium housing crisis

https://www.citywatchla.com/index.php/cw/los-angeles/20564-landlords-are-not-the-devil

The government’s destruction of small landlords in 2020 will be calamitous for tenants in 2021 and beyond. There will likely be an outbreak of foreclosures and sell-offs by those who are unable to endure the eviction-moratorium storm. When the small landlords disappear, so does much of the affordable housing. Corporate investors, real estate conglomerates, and Wall Street vultures will swoop down for the kill, snapping up properties, remodeling them, and raising rents. In the end, communities will be left with fewer economical rentals, and the chasm between the rich and poor will be a little wider. 

https://www.cdc.gov/coronavirus/2019-ncov/downloads/eviction-moratoria-order-faqs.pdf

What can a landlord do if a tenant has declared that they are a covered person under the CDC Order, but the landlord dodoes not believe the tenant actually qualifies?

The Order does not preclude a landlord from challenging the truthfulness of a tenant’s declaration in any state or municipal court. The protections of the Order apply to the tenant until the court decides the issue as long as the Order remains in effect. 

What if individuals act in bad faith when completing and submitting the declaration?

Anyone who falsely claims to be a covered person under this Order by attesting to any material information which they do not believe to be true may be subject to criminal penalties under 18 U.S.C. § 1621 (perjury) or other applicable criminal law. 

Thanks to Attorney Heiner Giese for reading the 59 page federal court motion.

The CDC’s attorneys have stated in federal court that owners are permitted to file evictions, as well as challenge the veracity of the tenants CDC Declaration. The CDC argues that owners can even obtain an eviction judgment, as long as the physical move is stayed until the end of the moratorium.

Most importantly, the Order does not prevent a landlord from filing an eviction action in state court. First, the Order expressly permits eviction for various reasons other than nonpayment of rent. See 85 Fed. Reg. at 55294 (property damage, criminal activity, etc.). Second, nowhere does the Order prohibit a landlord from attempting to demonstrate that a tenant has wrongfully claimed its protections. And third, even where a tenant is entitled to its protections, the Order does not bar a landlord from commencing a state court eviction proceeding, provided that that actual eviction does not occur while the Order remains in place. See id. at 55292 (“the order prevents these persons from being evicted or removed from where they are living through December 31, 2020”); id. at 55293 (defining “evict” as “to remove or cause the removal of”).

https://nclalegal.org/wp-content/uploads/2020/10/CDC-Response.pdf at page 42

The CDC attorneys further state that owners are permitted to sue tenants for nonpayment in civil court. This creates an interesting situation where an owner who is not receiving rent can garnish wages. 

Where tenants fail to pay rent, nothing in the Order precludes landlords from filing a breach of contract action seeking payment. Plaintiffs may prefer a different remedy, but they plainly have access to a judicial forum.

id. at page 43

This critical interpretation of the CDC Order is from its legal counsel, the US Dept. of Justice, in a brief in filed in the Brown v. Azar case, the federal court case in Atlanta seeking to overturn the CDC Order.

This is very different than what owners are being told by the tenant’s attorneys as well as local courts.

Personally I am not opposed to the moratorium if the tenant truthfully fills out the CDC Declaration, which includes an actual substantial loss of income, partial payments to the best of the tenants’ ability and having applied for all applicable government assistance.

The concern is when tenants are using the CDC Order as a “Get Out Of Rent Free” card and submitting knowingly false Declarations. For example we received our first Declaration last week. The tenant listed SSI as her sole source of income on her application, so she did not suffer a substantial loss of income. She also has failed to apply for either the Community Advocates nor the WRAP funding.

These are the reasons we need to unify as an industry.  Read the full, well-written piece at:

https://www.nydailynews.com/opinion/ny-oped-landlords-are-people-too-20201007-zqsmvkptgjcyjkzbmwojhh7r7y-story.html

“Landlords are the devil incarnate. “F–k landlords.” “Cancel rent.” “Kill the landlords. “Landlord (sic) are a disease.” These inflammatory words come from social media postings, but it is not unusual to hear them at the protests and riots that have become routine in recent months. In addition, there have been marches specifically crafted to promote the rent-strike movement — a movement that suggests a tenant, even when she has the ability to pay, may choose instead to withhold the money and place the funds in a shared escrow account. Small business owner, Roni von Henschen says, “I know people who aren’t paying even though they can afford it. I don’t know why. Maybe they figure they can live month after month for free since evictions are banned.”

Canceling rent will initially cause landlords to fail.  This will have a cascading impact on municipal budgets and local economies as contractors and vendors aren’t paid or given work.  Banks will suffer, but they’ll probably get bailed out again. 

Ultimately it will be the tenants who pay the greatest price as rents will increase dramatically due both to attempts by owners to cover the added debt they accumulated and the reduction in available rental housing.  
At the lower end of the housing market expect to see abandonment that leads to buildings being razed. At the mid market expect that well financed Wall Street corporations will buy up much of the housing stock. 2021 will make 2008 look like a small trial run.

Don’t expect to see much new residential rental construction.  Why would smart people invest in something the government can take away, without compensation, with the stroke of a pen.

Or of course, the Feds could do what is right and create a nationwide housing voucher that would protect both tenants and housing, as well as preventing the further collapse of the economy.   

Demand a fix

The National Apartment Association has an “Easy Button” to help you connect with your Congresspeople and Senators.

The National Multifamily Housing Council has a similar tool to reach out to your elected officials.

But don’t stop there.  

Even though most of the funding, if it comes,  will be Federal, reach out to your local officials as well.  Not only may they find state and local funding, many of these folks have the ear of the national political party bosses.  (It the national parties had leadership, the problems of not being able to pay rent would have been solved decades ago. – Just sayin’)

Why ‘Cancel-Rent’ Hasn’t Worked in The City That Tried It | Time

https://time.com/5889749/cancel-rent-ithaca/

While largely sympathetic to renters, who make up 73% of Ithaca’s residents, several members of the council worried about the well-being of small landlords as well. What happens to the landlords who still have mortgages to pay? What happens to contractors who are employed by those landlords? What happens to the city’s budget, which relies on those landlords paying their property taxes? “I don’t understand why we would want to take the pain and economic hardship of one group of our citizens and put it on another group of our citizens,” Ithaca Alderman George McGonigal said at the meeting. “We may create a bunch of problems for everybody in the community, including ourselves.”

Myrick saw the flaws, too. He too worried about Ithaca’s smaller landlords, in addition to the city’s already meager budget. “If you just cancel rent, there will be some landlords that lose money, there’ll be some landlords that lose so much money they can’t make their mortgage or tax payments, which could lead to defaults, and tax foreclosures would lead to less revenue for the city, which would mean we could support fewer social services,” he says. “This kind of thing can trigger [an economic] depression.”

Ultimately, after 30-plus minutes of contentious debate on June 3, the rent cancellation measure passed, on a 6 to 4 vote. The Ithaca Tenants Union, which coordinated with a couple city council members and Myrick to conceptualize the order, celebrated. “When your business is in providing people housing, that’s a certain responsibility you take on if it goes under to not put people on the street,” says Ary Stewart, a 24-year-old member of the renters coalition. If this results in landlords falling behind on their own debts, Stewart says they should “take it up with the bank.”

Residents may face higher property taxes after largest state reimbursement gap ever is reported

https://www.nbc15.com/2020/09/29/residents-may-face-higher-property-taxes-after-largest-state-reimbursement-gap-ever-is-reported/

MADISON, Wis. (WMTV) – Cities across the state are facing the largest gap on record in state reimbursements for costs that serve state facilities and some residents may face higher property taxes this year in exchange for the benefit of housing state properties.

The Wisconsin Policy Forum reported Tuesday that estimated municipal costs for services like police, fire protection and waste removal have risen sharply in the past decade, while state leaders have decreased funding for the program that provides reimbursement for such services.

Great to read the ABA’s position.  Well written, but one would expect no less from the president of the ABA. The ABA is asking for $100B in rent assistance.

https://www.nytimes.com/2020/09/27/opinion/letters/covid-congress-tenants-landlords.html

The president of the American Bar Association urges congressional action “to prevent housing instability.”