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.

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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.

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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.

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