The CDC's Eviction Moratorium Has Finally Ended . . . Now What?

Posted by Tristan R. Pettit, Esq. in CDC Eviction Moratorium / Comments

The CDC's eviction moratorium finally ended at midnight on July 31, 2021.  

The moratorium could not be extended due to the U.S. Supreme Court's decision that the CDC exceeded its statutory powers and didn't have the right to issue an eviction moratorium in the first place.  Thus, any future federal moratorium will need to be created by Congress via legislation.  Congress tried to organize something in an attempt to pursue legislation late last week but did not have enough people on board to move forward.

So what happens now?

Congress could still try to pass legislation creating another eviction moratorium in the future.  From what I have read to date, this is unlikely however.  There is also a chance that the Governor could try and create another state eviction moratorium as he did last year.  The President is urging all states that do not already have a state eviction moratorium in place to create one.

So we are back to square one, except now we have so many more tenants that have not paid rent and an accumulation of rent arrearage that is truly staggering.  We also have more and more landlords in trouble, and if it is not too late already, who cannot afford to wait any longer.  It is not a good situation by any stretch of the imagination.  So how do we move forward from here?  

One option, and probably the best option if your tenant is willing to cooperate and the only issue is your tenant's inability to pay rent, is to work with your tenant to apply for Emergency Rental Assistance funds (ERAP).  There are still millions of dollars available to be distributed to housing providers.  This option is certainly preferable for most landlords, tenants, and the community at large, but the process takes time.  Community Advocates, which is distributing ERAP funds for Milwaukee and Waukesha counties, estimates that once an application is assigned to an employee until the time that the housing provider receives funding will be approximately 30 days.  But there can be a delay in assigning an employee to handle the application and that unfortunately extends the waiting period.  SDC, which is administering the ERAP funds for the city of Milwaukee has a similar waiting period.  Additionally, as many of you have learned the hard way, the application process can take some time to complete and can easily get derailed by an uncooperative tenant or missing documentation. 

Another benefit to working with your tenant to apply for ERAP funds is that this option is pretty much the only way that you will be guaranteed to be paid your past due rent.  ERAP funds can cover up to 12 months of rent arrears as well as 3 future months of rent, as long as the tenant continues to reside in the rental property.  If the tenant vacates, or you evict the tenant, you will not be eligible to receive the ERAP funds.

While applying for ERAP funding has a lot of benefits, it also has a rather large negative side in that it requires the landlord to be patient and wait even longer to receive monies that were due months and months ago.  Many landlords are not able to wait any longer.  Many aren't willing to wait any longer.

A second option is to attempt to mediate a resolution of some sort without the need of filing an eviction.  
Mediate Milwaukee has indicated that they are willing to get involved, at no financial cost to the housing provider, and perhaps they can either convince the tenant to cooperate in the ERAP application process or mediate some other resolution such as a move-out date without the need for the landlord to file an eviction. 

The third option is to evict.  For tenants that refuse to cooperate with the ERAP application process, this is the route that may be necessary.  While the landlord can initiate the application process, the tenant must cooperate in order for the money to be paid out.  Eviction may also be the only option if the tenant is engaging in non-rent related breaches, such as criminal activity,  that are causing disruption to other tenants and/or damage to the landlord.  Again, a landlord will not be able to recoup his/her lost rent if eviction is pursued. 

It is also important to not that the eviction process may take longer than usual as the Courts have never encountered such a scenario as we are currently facing.  I have read that there is a backlog of approximately 3,000 evictions in Milwaukee County which have been repeatedly adjourned each time that the moratorium was extended.  Most of these cases are scheduled to be heard in August or early September. Despite this volume, Milwaukee County has reserved spots in its daily calendar to slot in newly filed evictions.  Nonetheless, I expect the delays to get a court date will be longer than they were during pre-Covid times.  Pursuing an eviction also adds additional financial costs to the landlord, not to mention the many negative consequences an eviction has on a tenant, and disruption to tenant's family etc.  

I am not standing in your shoes, so I cannot determine what is the best option for you.  I know several landlords that have already been pushed so far that they have had to sell their properties.  I also know other landlords that are livid that they have had to use up their savings and retirement accounts to house tenants that are unwilling to even make the effort to assist the landlord in completing the ERAP application.  There are no winners here - just losers.

If you are in a position that you can wait a month or more to receive the ERAP funds, again this most likely is the only option that you will have of being made whole.  It also will be the least costly from a financial standpoint as you won't incur the eviction filing costs and the costs to turn the unit over.  But for those of you that have uncooperative or disruptive tenants, who also may not be able to pay rent, you are between a rock and a hard place and have no good option.

One place to look for assistance is the Rental Housing Resource Center which is a collaboration of various stakeholders in the housing community including the Apartment Association of SE Wisconsin.  There is no one perfect solution for everyone at this time unfortunately but hopefully there will be enough solutions available to help everyone.

T