Innovative Use of Federal Power to Protect Tenants from Eviction
December 12, 2023
Overview
With the recission of the federal declaration of public health emergency, tenants lost some protections from the CARES Act and related federal policies. Proposals in the Biden Administration’s Blueprint for a Renters Bill of Rights provides avenues to support tenants in housing and project based rental assistance and expands those protections as negotiated measures between Freddie Mac and the landlord community.
This is the final article in a series of Law and Policy Insights discussing each of the five principles in the Biden Administration’s Blueprint for a Renters Bill of Rights (Blueprint), which was introduced on January 25, 2023. The first article focused on two of the principles: access to safe, quality, accessible, and affordable housing; and the right to organize. The second article focused on clear and fair leases. The third article focused on education, enforcement, and enhancement of rights. This article focuses on the fifth principle in the Blueprint: Eviction Prevention, Diversion, and Relief.
The Blueprint’s final principle is one that has been the focus of state and local law and policy change for many years, seeking to prevent eviction and ameliorate the impact of eviction when it happens. More than two million eviction cases are filed against tenants each year in the United States. That’s roughly one eviction filing every four minutes. Eviction can impact the physical, psychological, and economic health of individuals, families, and communities for years.
The Blueprint suggests that certain measures will reduce eviction and minimize the deleterious impact of eviction when it does occur, including 1) requiring just cause for eviction; 2) providing tenants with adequate notice of eviction or non-renewal; 3) establishing alternative dispute resolution processes in the landlord-tenant context; 4) sealing eviction records under certain circumstances; and 5) imposing fair debt collection practices on landlords. The Network has developed resources on these issues; refer to our publications: Eviction Diversion and Prevention Programs; Limiting Public Access to Eviction Records; and Law and Policy Pathways to Preventing Housing Instability. What the Blueprint and the Biden Administration bring to the discussion is the use of federal resources to effectuate some of these policies.
State and local law almost exclusively govern the relationship between landlords and tenants; this is common in areas of public health because states have plenary public health power that they often share with the local governments they create. The federal government’s role in public health is more limited; to effectuate public health policy, the federal government must find a source of power in the U.S. Constitution. One common source is the tax and spend power. The federal government can use financial incentives or disincentives to improve public health.
While the federal declaration of public health emergency due to the COVID pandemic was in place, the federal government used the Coronavirus Aid, Relief, and Economic Security Act, 2020 (CARES Act), a $2.2 trillion economic stimulus bill, and related measures to protect tenants from eviction. With the declaration rescinded, there remains a protection in place for the more than 1.2 million families in public housing and project based rental assistance (PBRA) units who are supported with federal funding through the Department of Housing and Urban Development (HUD). Through HUD Notice PIH 2021-29, tenants in PBRA units are entitled to a minimum 30-day notice before eviction. Landlords must apprise tenants of this right and HUD provides a search tool for tenants to determine if their property is covered by this rule.
The federal government has likewise used its tax and spend power to facilitate a stable and affordable supply of mortgage funds to expand access to residential home ownership and affordable rental units. Freddie Mac was created by Congress in 1970 and helps “stabilize mortgage markets and protect housing during extraordinary periods when stress or turmoil in the broader financial system threaten the economy. [Freddie Mac’s] support for mortgage lending that finances affordable housing reduces the cost of such borrowing.” Through the Blueprint, the President called on Freddie Mac to do more to protect tenants through the organization’s work on housing equity. Freddie Mac responded.
In its April 2023 Equitable Housing Finance Plan, Freddie Mac signaled its immediate commitment to support renter resource organizations (RRO), particularly in underserved communities with significant minority populations. RROs can reduce eviction by providing counseling on access to financial resources, educating community members on family financing, and connecting tenants facing eviction with pro bono legal resources. Freddie Mac supplements that immediate support with a short-term commitment to studying the state and local legal framework of landlord-tenant laws in 2023 and announcing mechanisms to protect tenants from eviction in 2024.
Rather than requiring Congress to pass a bill or a federal agency to promulgate a regulation, Freddie Mac will use its financial power to “work with market stakeholders, including tenants’ rights advocates, multifamily developers/ owners, property managers and FHFA to explore the feasibility of expanding market adoptable tenant protections.” At the same time, the Federal Housing Finance Agency that oversees Freddie Mac, sought feedback on formalizing existing lending practices and developing additional protections to address barriers to sustainable housing opportunities for underserved communities. These informal and formal approaches reflect innovation for using the power of the federal government to protect tenants from the harms of eviction.
With the recission of the federal declaration of public health emergency, tenants lost some protections from the CARES Act and related federal policies. But as proposed in the Blueprint, the Biden Administration will continue to find avenues to support tenants in PBRA units and to expand those protections as negotiated measures between Freddie Mac and the landlord community.
This post was written by Kathleen Hoke, Director, Network for Public Health Law – Eastern Region and Professor, University of Maryland Francis King Carey School of Law.
The Network for Public Health Law provides information and technical assistance on issues related to public health. The legal information and assistance provided in this document do not constitute legal advice or legal representation. For legal advice, readers should consult a lawyer in their state.
Support for the Network is provided by the Robert Wood Johnson Foundation (RWJF). The views expressed in this post do not represent the views of (and should not be attributed to) RWJF.