The CARES Act and How It Is Failing Tenants
Samantha Porter is Secretary of the Sports & Entertainment Law Society, Treasurer of the Business & Securities Law Institute, and a member of Phi Alpha Delta Legal Society.
The coronavirus (COVID-19) pandemic has uprooted and changed many people’s lives and the legal system has been changing and shifting to try to help those individuals who have been impacted by the pandemic. One area of the law that has seen a huge impact is housing, specifically landlord-tenant law. Today, thousands are facing the risk of eviction due to layoffs and reduced hours that the pandemic have caused. To curb this crisis, Congress passed the Coronavirus Aid, Relief, and Economic Security (CARES) Act (“Act”), which many in the legal field feel have failed tenants.
One aspect of the CARES Act is the Emergency Rental Assistance Program. Under this program, a tenant must meet three eligibility requirements in order to be granted the assistance. A tenant must (a) “qualify for unemployment or have experienced a reduction in household income, incurred significant costs, or experienced a financial hardship due to Covid-19”; (b) “demonstrates a risk of experiencing homelessness or housing instability”; and (c) “has a household income at or below 80 percent of the area median.” If a household is deemed eligible, the tenant may receive up to twelve months of assistance, plus an additional three months, if absolutely needed, and the funds are available.  Meanwhile, the eviction moratorium that was part of the Act has been seen to be the saving grace to many tenants. For an individual tenant to receive the benefit of the moratorium, he or she needs to complete a form and serve it on his or her landlord; he or she does not need to apply anywhere else with the Department of Treasury or the U.S. government.
However, many attorneys have pointed out how the CARES Act, and the eviction ban, have failed a large number of tenants. Eric Kwartler, a staff attorney at South Texas College of Law Houston’s Randall O. Sorrels Legal Clinics, points out that there is no actual penalty for violating the eviction ban. Kwalter told CNBC, “A law without a penalty isn’t a law . . . [i]t’s a guideline.” At the Randall O. Sorrels Legal Clinics, Kwartler and several of his students discovered that a quarter of the filed evictions, which accounted for over 1,000 evictions, were supposed to be protected by the CARES Act.
Additionally, there are still many concerns and questions about how long the CARES Act will remain in effect in regard to stopping evictions. As of now, the CARES Act is in effect until March 31, 2021, and the CDC Eviction Moratorium remains in effect until June 30, 2021. However, this date has been extended multiple times. The original end date for the Act was in July 2020, but it was extended until December, and then again to its current date. However, Congress allowed these deadlines to get very close before passing the extensions, which led many tenants to worry that their relief would be ending.
Due to the multiple extensions and lack of penalty for ignoring the Act, the courts have been overrun and legal service agencies have taken on a number of new clients. Eviction Diversion Programs, such as the one in Lansing, Michigan, have had to hire additional law clerks to help with the number of intakes and unrepresented clients in court. Attorneys at legal services and housing clinics are taking on additional clients, thus making it so attorneys cannot dedicate as much time to each client as they would like.
There are several steps the legal profession can take to correct some of the issues that the CARES Act has created. One step, and the one that may make the biggest impact, is creating a penalty for landlords that violate the moratorium created by the Act. There have been several studies similar to the one conducted by the South Texas College of Law that show a large number of illegal evictions despite the Act. Congress has not decided to impose a penalty on these landlords. Courts should use their power to discourage landlords from violating the Act. One way to do so would be imposing a fine on landlords that file to evict their tenants in violation of the Act. Some bigger landlords who have filed to evict a number of their tenants would thus have received multiple fines under this approach. If courts consistently fine landlords that violate the Act, the financial burden imposed on the landlord may discourage them from trying to violate the Act again.
Attorneys for the landlords can also be more diligent in monitoring the evictions their clients are filing. Not all of the landlords have legal representation; however, many of the leasing companies and landlords with multiple properties tend to have legal representation. The attorneys for these companies and landlords should feel a duty to ensure that their clients are not violating the Act. Attorneys have a duty to ensure they are not filing frivolous claims, and that should extend to the evictions that are being filed by their clients. When an attorney hears from his or her client that he or she wants to evict a tenant, the attorney should first ensure that the tenant has not served the landlord with the CDC forms, and then see if the properties that the landlord owns are backed by “government sponsored mortgage entities Fannie Mae and Freddie Mac.” If the property is backed by one of these entities, the landlord cannot move to evict the tenants without violating the CARES Act.
Of course, the most effective solution to preventing landlords from illegally evicting tenants would be Congress including a penalty in the next renewal of the Act, if there is one. However, until this happens it is up to the attorneys, courts, and judges that are working directly with the Act to ensure that it is being applied fairly and that no one is taking advantage of the system. The pandemic has created unprecedented issues for the legal profession, but the courts and attorneys can work together to monitor evictions and ensure they are all fair under the CARES Act.
 Annie Nova, How the CARES Act failed to protect tenants from eviction, CNBC (Aug. 21, 2020), https://www.cnbc.com/2020/08/29/how-the-cares-act-failed-to-protect-tenants-from-eviction.html.
 The Treasury Department is Delivering COVID-19 Relief for All Americans, Dep’t of Treasury, https://home.treasury.gov/policy-issues/cares/emergency-rental-assistance-program (Last Visited, Feb. 19, 2021).
 Nova, supra note 1
 Protecting Renter and Homeowner Rights During Our National Health Crisis, Nat’L Housing L. Project, https://www.nhlp.org/campaign/protecting-renter-and-homeowner-rights-during-our-national-health-crisis-2/.
 Nova, supra note 1
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