Legal Aid of NC Files Suit as Evictions Continue Despite Moratorium
On Sept. 2, when the Centers for Disease Control and Prevention (CDC) issued a nationwide moratorium on evictions to help stem the spread of COVID-19, Isaac Sturgill praised the order.
“In my lifetime I have not seen a moratorium on evictions that is this broad and this all-encompassing,” said Sturgill, staff attorney and head of the housing practice group at Legal Aid of North Carolina (LANC).
The order allows tenants who make under $99,000 a year and are unable to pay rent due to COVID-19 to file an affidavit with their landlords that protects them from eviction. In the affidavit, also called a declaration, the tenant must state that they are unable to pay rent due to income loss or medical expenses related to the coronavirus and swear under oath that they will make their best efforts to apply for government assistance and pay what they can, when they can, toward back rent.
In a virtual press conference held on the week the CDC’s moratorium went into effect, Sturgill called the agency’s move “extraordinary.”
Today, the eight-year veteran of tenants’ rights advocacy is rethinking the moratorium’s ability to change people’s lives for the better.
“I had a lot of hope for our low-income tenant clients across the state that this order was going to be an extremely significant protection for them,” Sturgill tells Queen City Nerve. Instead, the order’s mission to safeguard tenants’ rights struggled from the start amid confusion and obstruction in North Carolina courts.
On Oct. 28, relief came in the form of Gov. Roy Cooper’s Executive Order 171, which was designed to clarify the federal order, ensure statewide compliance, and extend protections. Under the governor’s order, landlords are not entitled to file for eviction once they’ve received a declaration from a tenant. Landlords are also required to give tenants a copy of the declaration upon filing and notify the court of its receipt.
“We had renewed hope when the governor issued Order 171,” Sturgill remembers.
But when evictions continued, LANC got fed up with widespread noncompliance with the CDC moratorium. There was only one recourse left. Now the organization has filed a lawsuit demanding state and county court officials stop the issuance of eviction orders that violate both the CDC’s nationwide eviction moratorium and Gov. Coopers’ executive order.
Taking the courts to court
On Nov. 9, LANC filed suit in Wake County Superior Court. The lawsuit names three defendants, including Archie Smith, clerk of superior court for Durham County. Smith has been ordering county sheriffs to evict tenants who are protected by the CDC moratorium.
Durham County is one of the counties where the court still issues writs of eviction even if there is a CDC declaration on file, and Smith is one of a number of clerks across the state issuing those writs.
LANC is also asking for a judge to issue an injunction requiring the two other defendants — McKinley Wooten, director of the North Carolina Administrative Office of the Courts (AOC); and Nicole Brinkley, assistant counsel for the AOC — to comply with the CDC order.
Support a Free Press: Become a Queen City Nerve donor.
On Sept. 9, five days after the CDC ban went into effect, Brinkley sent out an official AOC email that Sturgill says helped lead to the confusion and purposeful stonewalling of the moratorium.
“What [the email] essentially says is that the CDC moratorium does not do anything to change the courts’ process for accepting eviction cases,” Sturgill offers.
AOC’s guidance also tells court clerks they should still issue writs of possession that allow evictions to be carried out. (If a court has already ruled in favor of a landlord in an eviction case, a writ of possession directs law officers to seize the premises and turn it over to the landlord.)
“It’s business as usual,” Sturgill says.
Sturgill says LANC wants the judge to direct all clerks of county courts to stop issuing writs of possession until a judge orders those writs.
So, in effect, the suit is alleging that actual officers of the court and law enforcement officials are breaking the law.
Sturgill confirms: “That is exactly what we’re alleging.”
Protected by the Constitution
The case boils down to a constitutional issue, he maintains. A clerk of court that allows writs of eviction and possession to be issued without a hearing is taking tenants’ rights away without due process, Sturgill offers.
“We’ve argued that their actions are unconstitutional, and that’s what our request for the injunction is based on,” he says.
According to the U.S. government journal the Federal Register, evictions increase the risk of COVID-19 transmission. The CDC order gives tenants a right to temporary immunity from eviction in order to protect their health and safety.
“We’re not asking for any money,” says Sturgill. “We’re just asking for the AOC and the clerks to comply with the CDC order. If they would agree to do that today we would dismiss our case tomorrow.”
Sturgill believes statewide noncompliance with the eviction moratorium by the very people charged to uphold the law is indicative of a broader issue, pointing to a pervasive lack of access to justice throughout North Carolina. If a tenant is fortunate enough to retain a legal aid attorney who can argue these issues effectively in front of a court, the tenant stands a good chance of stopping an eviction. But most people aren’t lucky enough, or rich enough, to get a lawyer on their side.
Sturgill notes that LANC represents only a tiny percentage of clients in need across the state because of its limited resources.
“In Mecklenburg County there are about 30,000 eviction cases a year,” he says. “With our small staff, we represent about 1,000 or 1,200 people every year. That’s only 3% of the total cases that are going through the county.”
“Although the CDC order very clearly says what a landlord is allowed to do and not to do, we have had zero to little guidance from our court system as far as how to implement the order,” says Sturgill.
How we got here
In March, at a time when it looked like folks just might have been willing to come together to aid Americans adversely affected by COVID-19, Congress passed the Coronavirus Aid, Relief and Economic Security (CARES) Act. The act included a 120-day moratorium on eviction filings, which expired on July 24.
Although the September CDC moratorium picked up the slack left by the CARES order’s expiration, it did not aid tenants who fell through the cracks between the end of July and the start of September, and is currently set to expire at the end of the year. In addition, the order does not apply to all renters, only tenants about to be evicted for non-payment of rent due to issues related to COVID-19.
Even if tenants meet the income specifications and other criteria for the CDC moratorium, it’s still unclear exactly who qualifies as a tenant. Language in the CDC moratorium states it does not apply to seasonal tenants or temporary guests living in hotels, says Sturgill, but under the 1991 ruling in the case Baker v. Rushing, the court can look at a number of factors to determine if in fact a hotel is a tenant’s primary residence. If the court rules in that tenant’s favor, they have all the rights of a full-time resident.
“Because of the case law that we have in North Carolina, we believe that families that are living in hotels as their primary residence could be considered regular tenants under the law and therefore the CDC moratorium would apply to them,” Sturgill maintains.
Unfortunately, like much of the moratorium, who the order protects and how it can be applied to tenants is left to the discretion of judges and magistrates across the state. It’s a mixed bag, says Sturgill who is based in the Legal Aid North Carolina’s Charlotte office and lives in the Queen City.
Once tenants have sworn under penalty of prosecution and filled out the affidavit, they are then advised to print out the affidavit and present it to their landlord. The landlord does not have to accept the affidavit in order for it to be binding.
At least, that’s how the process works in theory. In practice, among the 26 cities tracked by Princeton University’s Eviction Lab, over 100,000 renters have been forced out of their homes since the pandemic began. Thousands have been evicted since the moratorium took effect in early September.
Officials ignore federal and state orders
As for North Carolina, it’s “the Wild West,” Sturgill says. The moratorium’s critical weakness lies in the fact that so much of its effectiveness rests on the judges and sheriffs tasked with enforcing it.
“Some judges are applying [the CDC order] correctly, but we’ve seen other judges disregard it or confuse it with different laws like the CARES act,” Sturgill says. Still other judges confuse the CDC eviction ban with Gov. Cooper’s early statewide eviction ban, which expired on June 21. “Implementation has been fraught with difficulty.”
In many North Carolina counties — Mecklenburg and Robeson counties are notable exceptions — judges are not implementing the moratorium. Sturgill cites poor leadership on the part of the AOC, which develops policy for the courts across the state.
Support a Free Press: Become a Queen City Nerve donor.
The blow dealt by the AOC email on Sept. 9 was compounded on Oct. 30 when the North Carolina Sheriffs’ Association sent guidance to its members saying the CDC order did not change a sheriff’s duty to execute a writ of possession.
“The sheriff does not have the authority to determine the legal correctness of the basis for eviction,” the guidance reads.
“What you end up with is a situation where the tenant knows about the CDC order, they signed the declaration, and they give it to their landlord,” Sturgill says. “Then the landlord proceeds with the eviction.”
LANC attorneys have also seen tenants go to file a declaration with their local clerk’s or sheriff’s office only to have staff disregard it and process the eviction.
In one instance, Sturgill remembers that one judge questioned the constitutionality of the CDC order. In another, a client informed LANC about a magistrate who told a tenant their CDC declaration “was not worth the paper it was printed on.”
Before filing suit, attorneys with LANC reached out to the AOC, trying to engage them in a conversation.
“We haven’t gotten a response from them at this point for their rationale for not wanting to implement the order,” Sturgill says. “That’s been a frustrating process, [because] we would like to have that conversation with them.”
Meanwhile tenants have continued to fall through the cracks.
Evicted tenants face long-lasting consequences
The fact that evictions are still being filed despite the moratorium can have a chilling effect on tenants’ abilities to pursue their rights. Often tenants who receive eviction notices will move out to avoid creating an eviction record, which could then prevent them from renting another property.
“There’s no way to expunge eviction records in North Carolina,” Sturgill says. “If tenants have a case filed against them, it’s a public record, something that other landlords that are considering renting to them can see. That in itself can make it challenging for people to get housing.”
Fear that eviction records can block access to housing could also make renters reticent about taking their landlord to court or sharing their experiences with media outlets. (Queen City Nerve reached out to tenants who were threatened with eviction despite completing the affidavit for the eviction ban, but all declined to go on record with their story.)
Tenants might also fear retaliation from landlords, Sturgill says. If they’re behind on rent and trying to work out a payment plan with their landlord, they might be hesitant to put their case in the public spotlight, he offers, for fear of angering the landlord.
In addition, the moratorium’s biggest loophole is that it only applies to non-payment of rent due to effects of the coronavirus. As a result, landlords are increasingly trying to sidestep the CDC order by evicting protected tenants for minor unrelated lease infractions like excessive noise.
Sturgill cites a common case that occurs with tenants who have carried a month-to-month lease for years. As soon as the tenant can no longer pay rent, the landlord sends a notice that they’re ending the lease.
“That’s what we call a holdover case,” says Sturgill. “It’s one of the most significant loopholes that we see landlords take advantage of.”
The result of landlords exploiting loopholes to throw tenants out of their homes, and of judges, clerks and sheriffs being willing to defy the eviction ban, can be seen across the nation. In October, NBC News reported that corporate landlords had filed over 10,000 eviction actions in just five states since the start of the moratorium.
The bottom line, says Sturgill, is that people are continuing to be evicted — and put at great risk to their health and well-being — when they should never have been evicted in the first place.
Become part of the Nerve: Help us continue to connect community and culture and tell the overlooked stories of everyday Charlotte. Get better connected and become a monthly donor to support our mission and opt-in to our email newsletter.
This work by Queen City Nerve is licensed under a Creative Commons Attribution-NonCommercial 4.0 International License.
This nearly happened to me and my too late we were taken to court evicted in october and the day we were suppose to leave luckily the sherrif in charge of the case was one of the good ones and did not make us leave he said well the judge did not specify that we were being evicted for violation to lease agreements or non pay sp he was not gonna make us leave
Why are people not in arms about this…last Time I read some lies about covid 19 it was my understanding that it’s was scientists in China who created this disease not poor people. None of The officers i mentioned the governors order to had any knowledge of it in my home town of granite falls, NC so they indicated. I feel like a governmennt official hired to protect and serve their community should by mandatory have knowledge of such orders
I find it digusting that there are actuall men and women on the streets due to the lack of care or lack of intelligence of the peoe who have been swarn to protect we the citizen
this nearly happened to me and my roommate in October we were served with papers and taken to court for an eviction based on non-payment I was in shock that that the judge nor any of the many sheriffs that I had encountered during this whole Fiasco claimed any knowledge of Governor Cooper’s executive order one County Sheriff even went so far as to say that no one else had said anything while they were being evicted bit me and my roommate had been the first ones to mention it and that sickens me to think that a government official hard to protect and serve their community had no idea of these executive orders and furthermore I believe it should be mandatory that they all government officials not only have knowledge of of these orders but be subject to legal action for not upholding them this is a crime against humanity I can’t believe people are up in arms over these travesties being committed by the people who have been sworn oath to protect the community. On the day we were ordered to evacuate the premises literally minutes till being homeless the sherrif residing over our case called and said he was not goin to make us leave because the judge had not specified to the cause of the eviction. Poor people struggling to pay there bills because of a lockdown should not be put to death by exposure to disease. This all seems like an attack on the common man and the under privillaged…
This is clearly a failure of elected leadership. The moratorium is an attempt to balance the crisis on the backs of landlords. Where is the mortgage and tax relief? Money for repairs and maintenance? Landlords still have to pay while not receiving rent. People like Sturgill, they should be advocating for relief for all, including lanlords, that takes the weight of unpaid rent in the face of continuing property costs, into account. If the government provided assistance, and timely, to landlords, instead of trying to balance this pandemic on the backs of landlords, we wouldn’t be in this predicament. If advocates came together to argue this, instead of pitting tenants against landlords, and vice versa, we wouldn’t have this situation. All are struggling, find a solution for all!
Amen ! Thank you
And what about the land lord ?!?!? The owner of the land is suppose to let someone stay for free ? While we still have to pay mortgage, taxes , all our bills ? Is the land lord still suppose to keep the place up for them too ? You have got to be kidding . The government doesn’t own my land and can not tell me I have to give it up to someone for free . You need to be asking for a grant from the government to pay these people’s rent . Not asking landowners to give up their property. Use some common sense!
From the perspective of a landlord, when I made a decision to make an investment I assumed “all” the risk involved..buyer beware. Anytime you invest into something with the expectation of a return on your investment you must assume the risk involved. One of the variables of investing into rental properties is Tennant’s, your investment return hinges upon the ability of others to make the payments, while you the landlord assumes the responsibilities of the mortgage, repairs, taxes etc. If the tenant pays on time all is well, but in the event something happens to they’re income or they become irresponsible, your still accountable for your end. Know and understand the rules of the game before you enter it, as life happens and things don’t always go our way.
We were handed an eviction notice ….for violations
Violation#1 landlord states we are constantly late on rent and she constantly has to talk to us about the rent being late.
Evidence#1 I have every cashed money order that shows we were NEVER late one time, nor have we ever been told about it.
#2 vehicle leaking oil
We had an isssue with my truck leaking, went to fix it and they made it worst. I was constantly threatened to have it towed and charged for cleaning mess. We fixed the trucks leak and although several vehicles leak here (25 oil stained spots besides mine)and have been next to my truck we were approach one last time and told that we were going to have our truck towed by tomorrow if we didn’t get it out of the parking lot. I was pretty upset because we had fixed the leak. I explained to the woman that manages the complex that it is not my truck anymore it is other vehicles in the parking lot that are leaking and she said I don’t care in a nasty voice and said move it or they will be towed tomorrow. Is my vehicle to get me to work I didn’t know what to do so I had just moved it down the street. I have pictures of over 30 spots with stains in it and nobody else was threatened to have their car towed and removed and I don’t understand why we were being picked on.
This was also violation 2 on the lease.
Their third violation according to them was my boyfriend was staying with me too much and they said he was a resident although he has his own estate and proof of domicile as well as mailing address and license in another state. During the beginning of my lease my boyfriend was staying with me a little bit more than he normally did because I was recovering and had a hip operation and I needed his help to recover. We got permission for that and it was okay until the incident with the truck and us arguing with her about my truck wasn’t leaking and she was wrong for the meaning of to tow it off the property by tomorrow and the back and forth argument that briefly followed oh, but the woman didn’t even want to listen to us and was nasty and walked away.
Is this a violation of our rights