While COVID-19 is not the root cause of housing insecurity, the pandemic has pulled hundreds of thousands of Californians to the precipice of housing loss. This Article describes the existing eviction process that values individual property rights over the human right to housing, and describes proposed legislative solutions to prevent evictions en masse before considering urgent long-term changes. This moment calls for us to question the historical commodification of property, and to more towards a system that treats housing as a social good necessary for public health rather than a commodity to generate wealth for the privileged few.
In the Wild West, the punishment for murder was jail; the punishment for horse-stealing was death by hanging. So went the adage that Matt often heard, growing up in the Southwest. The message resonates with us because it reflects a reverence for property rights that rings true in our contemporary times, especially in this moment, as our government officials decide whether reopening businesses is worth the risk of more COVID-19 deaths, and media pundits debate over whether property damage during protests outweighs protesters’ demands for basic respect and recognition of Black lives.
As California housing advocates, we work on issues related to discrimination and displacement that have their roots in the politics of exclusion. This long and sordid history has ultimately left rental housing as the primary housing option for low-income communities of color. In turn, tenants are at the mercy of property owners—landlords—in whose favor existing economic and legal systems bend. Between pandemic and protest, is 2020 the year we begin to meaningfully grapple with these systems?
We must. While COVID-19 is not the root cause of housing insecurity, the speed with which the pandemic has pulled hundreds of thousands of Californians to the precipice of housing loss means that it is well past time we treat housing as a social good rather than as a wealth generator for the privileged few.
In this Article, we describe the looming eviction crisis and legislative proposals to prevent the rug from being pulled out from under hundreds of thousands of renters. We also examine community-driven solutions to the commodification of housing. In so doing, we do not have the hubris to assert that the ideas we propose are novel or unique—many brilliant thinkers, advocates, and organizers have proposed these solutions well before we put pen to paper. But this moment brings into sharp relief that we need to not only keep people safely housed to prevent the spread of COVID-19, we need to do so while addressing systemic racism, and remedying our longstanding and ongoing housing crisis.
On March 4, 2020, California Governor Gavin Newsom issued a state of emergency order to address the spread of the COVID-19 pandemic in California’s communities. Governor Newsom subsequently issued Executive Order No. N-33-20 on March 19, 2020, which required that all California residents, with a few exceptions, “stay home or at their place of residence.”
Immediately, housing activists and advocates identified several issues. How would already rent-burdened households pay rent if they lost income because of loss of employment, lack of childcare, or illness? If tenants were served with eviction papers immediately before or during the stay at home order, would they be forced to go to crowded courtrooms to defend their cases? Would sheriffs execute court orders to pull people out of their homes?
A. Some Background on Evictions, Affordable Housing, and Homelessness
In California, the judicial process for eviction, or “unlawful detainer,” allows landlords to terminate tenancies and recover their rental property. Historically, in common law, landlords recovered their property using “self-help,” or forcibly removing tenants themselves. Most states, including California, have adopted statutes that prohibit self-help but provide a quick, inexpensive, and expedient procedure to recover property. These “summary proceedings” are therefore akin to small claims actions, even though so much is at stake for the tenant. There is little space in an unlawful detainer for the court to consider the human cost of terminating a tenancy. There is no space at all in these proceedings to consider the aggregate impact of evictions on communities. Their purpose and design are rooted in protecting a landlord’s property interest.
Long before the pandemic upended the existing economy, housing activists and advocates called for more attention to the connection between two rapidly growing crises across California: the extreme lack of affordable housing and the growing rates of homelessness. Before the pandemic, eight out of ten extremely low-income households and over five out of ten very low-income renters were paying more than half their income in rent. And communities of color disproportionately bear these crises, with Black, Latinx, and immigrant households significantly more rent-burdened than white households. The annual Greater Los Angeles Homeless Count, which occurred in January 2020 before the stay at home orders, showed that rates of homelessness increased by 13 percent in the region in one year. Again, it also revealed that while only 8 percent of the overall population is Black, Black people make up 34 percent of those experiencing homelessness. This history of protecting the interests of property owners, along with racialized disparities for rental households, provides the background for the present moment: a housing crisis made worse by the COVID-19 pandemic.
B. Temporary Pause on Evictions and What Happens Next
In the first several weeks of the stay at home order, a patchwork of federal, state, and local renter protection measures began to form; they were acknowledgments of the public health disaster that would result if people were displaced from their homes. On April 6, 2020, the California Judicial Council adopted a temporary statewide emergency rule that prevents most evictions from moving forward. This rule serves as the baseline protection for renters in California, effectively placing a pause on evictions. The rule expires at midnight on September 1, 2020, meaning that courts can begin issuing evictions summons and defaults on September 2.
Gary Blasi recently wrote about what will occur when this temporary rule expires, particularly for households unable to pay rent, if there is no meaningful government intervention to prevent or mitigate an onslaught of evictions. Blasi estimates that 365,000 households in Los Angeles alone are at high risk of eviction on the day that the Judicial Council rule is lifted. He further estimates that a second wave of evictions will occur when replacement income ends. These eviction waves will hit people of color hardest: A recent study shows that Latinx, Black, and immigrant renters are concentrated in neighborhoods at highest risk of eviction and housing loss. Significantly, the study states, “[t]wice as many [B]lack Angelenos reside in high-vulnerability neighborhoods than in low-vulnerability areas.”
The pandemic and ensuing economic downturn is therefore poised to accelerate a process that is already stacked against tenants—especially Black and brown tenants.
C. Thinking Beyond the Existing Legal Framework
If we are to ensure that California renters stay housed in the aftermath of the pandemic, we need to keep them out of the unlawful detainer process. It is inhumane and counterproductive to California’s recovery efforts to force tenants from their homes during a time when our entire society is experiencing severe economic challenges.
Western Center, and our partner organizations, California Rural Legal Assistance Foundation, Housing Now!, Leadership Counsel for Justice and Accountability, PolicyLink, Public Advocates Inc., and Public Counsel, are sponsoring Assembly Bill 1436—legislation that will protect renters from mass evictions by separating the questions of eviction and rent, and create a legal framework for the repayment of rent that is fair to both tenants and landlords. The bill, authored by Assemblymember David Chiu, would prevent covered tenants from being evicted for nonpayment of rent during the COVID-19 emergency, plus ninety days following the end of the emergency, or April 1, 2021, whichever is earlier (the “effective time period”). To be covered, a tenant would first have to respond to the landlord’s demand for unpaid rent with a declaration that the tenant either lost income or had increased expenses because of the pandemic, which impacts their ability to fully pay the rent. The landlord may institute a regular civil action to recover unpaid rent after twelve months have elapsed from the end of the effective time period. The bill further provides covered tenants protections from negative credit reporting, and from being charged fees for late payment of rent accrued during the effective time period. The Legislature is also considering other proposals, including offering a state issued tax credit to landlords to compensate for unpaid rent.
By the time this article is published, the Legislature and Governor will have likely agreed on some policy in an attempt to address the looming eviction crisis. The question is whether the policy they adopt meaningfully prevents or substantially mitigates mass displacement. Before the Judicial Council enacted Emergency Rule 1, the Governor issued an “eviction moratorium,” that, despite its title, provides little practical help for renters. The Governor’s Executive Order is limited in scope, addressing only tenants who have documented COVID-19-related income loss, and at best only delays their eviction and lock out by a sheriff. Moreover, the Order is not written in a manner that allows for consistent application in unlawful detainer proceedings.
The reality is that any scheme that simply gives tenants a set period of time to “catch up” on rental payments amounts to an eviction delay, not eviction prevention. Given that eight out of ten extremely low-income households and over five out of ten very low-income renters were paying more than half their income in rent before this pandemic, these families will likely never recoup weeks or months of lost wages.
Ultimately, the policy solutions we need to meet this moment must be bold and multipronged. As a preliminary matter, we must take evictions off the table entirely, for all reasons, for the duration of the state of emergency. An eviction should be an extraordinary, not routine, event. Rather than placing the burden of proof on tenant households to show that they qualify for relief based on demonstrable financial hardship, the burden of proof should fall on landlords to show why an eviction should proceed for a demonstrable health or safety reason. This shift is important to eliminate the use of alternative, pretextual causes for displacing tenants. We must then provide financial assistance in the form of income replacement and debt relief so tenants are able to pay rent, mitigating the urgency for landlords to pursue evictions.
It is also critical for the Legislature to mitigate the power imbalance between property owners and tenants that existed long before COVID-19. The Legislature should recognize tenants’ right to organize, build on AB 1482 to strengthen tenant protections, and ensure eviction defense through a civil right to counsel. And statutory reform must involve directly addressing both the Costa-Hawkins Act, which dramatically limits local governments’ ability to stabilize rents in their communities, and the Ellis Act, which allows landlords to evict residential tenants to “go out of the rental business,” and has oft-abused loopholes. We also have to think broadly about ways in which we can fundamentally change the commodification of housing by enabling greater community control and putting an end to financial speculation on land and homes.
II. Commodification of Housing
The eviction onslaught we anticipate facing as a result of the COVID-19 crisis pushes us to ask: Why do we make it so easy for a person to lose their home? Given the deficiencies highlighted in the process described above and the complete absence of justice within unlawful detainers, we should seriously challenge the continued utility of these proceedings. Rather, how can we expand the use of property ownership models that minimize the interest in evictions?
A. Some Background on the Commodification of Housing
Persistent racially exclusionary practices and the commodification of housing have contributed to the extreme lack of affordable housing and growing rates of homelessness noted above. These crises had already come to a head in many communities, most significantly in Los Angeles, the San Francisco Bay Area, and San Diego, long before the first reported COVID-19 death in the state. Hundreds of thousands of families experience housing instability and live paycheck to paycheck. Over 150,000 people experience homelessness on a given night. Black and brown communities are disproportionally impacted by these crises.
The history of property interests is deeply racialized throughout the United States, and it is no different in California. Numerous policies have served to limit access to housing for people of color: the American housing policy from the Homestead Act of 1862, the racialized implementation of the GI Bill, the Federal Housing Administration lending policies of “redlining” that kept federal financing out of communities of color, racially-restrictive covenants, and exclusionary zoning. These policies and their implementation have historically functioned to exclude people of color from land ownership, leaving rental housing as their primary housing option. Consequently, today, people of color and other marginalized groups are much more likely to rent their homes than white households. Because of these legacies, when we discuss laws related to rental housing, we are discussing policies for where and how people of color may live.
This history of American housing practices is harmful enough for communities and families of color, but the damage of the resulting disparities was brought into starker relief following the subprime mortgage crisis in the late 2000s and the ensuing economic recession. The mortgage foreclosure crisis revealed predatory lending practices (as well as their racialized nature) within the housing market. We cannot overstate the dramatic impact this crisis had on homeownership for people of color in particular, and family homeownership more broadly. As a result of the crisis, there was a massive transfer of ownership from living and breathing families to corporate landlords. Corporate landlords like Equity Residential and Blackstone, as well as other real estate investment trusts, further contribute to the commodification of housing by increasing rents and fees, minimizing maintenance, imposing sterile rules regarding resident conduct, and utilizing the cheap and speedy tool of eviction to force compliance or profitable turnover of units. In this way, our communities have lost control over their neighborhoods to a degree not seen previously.
III. Problems Compounded by a Pandemic-Fueled Crisis
The current public health crisis adds yet another challenging aspect to the housing market. Advocates have long understood that housing is an essential public health issue. The need to shelter-in-place makes this issue plain, as people must have somewhere they can safely socially distance, regularly wash their hands, and recuperate and recover. Governments recognized this need among the many urgent priorities at the outset of the pandemic by taking measures to prevent evictions, to prevent foreclosures, and to move people experiencing homelessness into the shelter of hotels.
But commodification creates a paradigm under which homes are resources to exploit for profit rather than the public good necessary to promote public health during a pandemic. This paradigm leaves no room for delay in landlords’ collection of revenue, and it views the turnover of the home as necessary to achieve that end. Landlords have lost monthly rents where many tenants have been less and less able to pay during business closures. Across the state of California, landlords have filed suit to rollback eviction restrictions they argue to be infringing on their so-called substantive right to evict tenants.
A. Community-Oriented Housing and Looking Ahead
The current crisis allows us to envision alternatives to this commodification of our homes. Rather than ignoring the public need for housing at a time when folks have been ordered to remain home to the extent possible, we can craft alternatives oriented towards public health. We can implement housing strategies that promote public health by mitigating resident turnover, and which avoid the dehumanizing landlord-tenant power dynamic.
Community land trusts (CLTs) are entities that steward real property for the benefit of the surrounding community or a particular population, in order to provide long-term housing security. CLTs have long been a tool in the United States to provide access to land for marginalized communities. The model for CLTs, New Communities, Inc., in Albany, Georgia, arose in 1969 to provide land for Black sharecroppers who were being forced from their homes for their participation in voter registration drives. Today, a typical CLT for affordable housing creates a “dual ownership model,” whereby an individual or family purchases a house or unit at an affordable price, while leasing the land from the nonprofit trust, with provisions to keep housing units affordable upon resale. Expansion of CLTs would be a great solution to our current predicament, one that focuses on community accountability (and thus keeping members of the community safely housed) rather than the need for regular and ever-increasing monthly rents enforced through the threat of eviction.
Alternative ownership structures abound beyond CLTs. Shared-equity homeownership in the form of cooperatives, limited-equity resident-owned communities, or deed-restricted affordable units provides stable, affordable housing stock outside of a market driven by profitability. The problems faced by CLTs and other shared-equity ownership structures are primarily a lack of investment and political support. This manifests as a failure to preserve existing affordable, shared-equity housing through renewed investment as well as failure to fund or incentivize creation of new opportunities. Greater subsidy, financing, and political will are necessary to combat the commodification of housing that ignores housing as a public good.
The COVID-19 emergency did not cause California’s housing crisis, but it has exacerbated it. Now is the time to look beyond existing structures and procedures and reimagine a better future for housing California’s residents.
We can and should change the existing eviction process, but we have to go beyond that as well. If we decide to value housing as a human right as opposed to a commodity, we can develop a system that corresponds with this value. A human-centered system can incorporate different ownership models, such as land trusts, co-op ownership, or nonprofit ownership of housing.
Pandemic and protest have created a shift. Much of what we have accepted as normal has to change. We can move toward shared responsibility and community interest, and put the collective good above individual revenue. It is imperative that we use this moment wisely.
. See, e.g., Christina Wilkie, Trump Says ‘There’ll Be More Death’ From Coronavirus, But Reopening Is Worth It, CNBC(May 5, 2020), https://www.cnbc.com/2020/05/05/trump-acknowledges-some-coronavirus-deaths-will-result-from-reopening.html [https://perma.cc/34EE-VSCV].
. E.g., Robin D.G. Kelley, Opinion, What Kind of Society Values Property Over Black Lives?, N.Y. Times (June 18, 2020), https://www.nytimes.com/2020/06/18/opinion/george-floyd-protests-looting.html [https://perma.cc/3PXU-LPBC].
. Cal. Exec. Order No. 54-20 (Mar. 4, 2020), https://www.gov.ca.gov/wp-content/uploads/2020/03/3.4.20-Coronavirus-SOE-Proclamation.pdf [https://perma.cc/3SK2-97HF].
. Cal. Exec. Order No. 33-20 (Mar. 19, 2020), https://www.gov.ca.gov/wp-content/uploads/2020/03/3.19.20-attested-EO-N-33-20-COVID-19-HEALTH-ORDER.pdf [https://perma.cc/5CNQ-6MEQ].
. Lindsey v. Normet, 405 U.S. 56, 71 (1972).
. In California, the legal process for eviction is referred to as “unlawful detainer.” An unlawful detainer proceeding is a summary method for recovery of real property. Cal. Civ. Proc. Code §§ 1159–1179(a) (West 2019). The timeframes are compressed as compared to other civil actions; notably, defendants must file a response within five days of service of the summons and complaint, id. § 1167(a), while in other civil actions, defendants are afforded thirty days, id. § 412.20(a)(3). Unlawful detainers are afforded statutory trial preference and must be set no later than the twentieth day after a plaintiff files their request to set trial. Id. § 1170.5(a). The California Rules of Court set standards for timelines in which to “dispose” of cases pursuant to the trial court delay reduction act. Cal. Gov’t Code §§ 68603, 68620 (West 2019). The goals for unlawful detainer cases are: (1) 90 percent disposed of within thirty days after filing; and (2) 100 percent disposed of within forty-five days after filing. Cal. Ct. R. 2.2.
. Cal. Civ. Proc. Code § 1179 (West 2019). The court has broad equitable discretion to relieve a tenant from forfeiture and restore them to their former tenancy in case of hardship, including those cases in which judgment has been entered by default. This is conditioned, however, on a tenant’s full payment of rent due or a tenant’s full performance of conditions or covenants so far as practicable. Id. Relief from forfeiture is also time-limited, not to exceed 40 days. Id. § 918.
. For an overview of the eviction process, see Gary Blasi, UCLA Luskin Inst. on Ineq. & Democracy, UD Day: Impending Evictions and Homelessness in Los Angeles 11–13 (2020).
. See, e.g., Gregory Bonett, Katie McKeon, Tate Harshbarger, Brenda Martin Moya, Cara McGraw & Kyle Nelson, Pub. Counsel & UCLA Sch. of L. Cmty. Econ. Dev. Clinic, Priced Out, Pushed Out, Locked Out 10–11 (2019), http://www.publiccounsel.org/tools/assets/files/1188.pdf [https://perma.cc/9TKN-V4XE]; Aimee Inglis & Dean Preston, Tenants Together, California Evictions Are Fast and Frequent (2018), https://www.tenantstogether.org/sites/tenantstogether.org/files/CA_Evictions_are_Fast_and_Frequent.pdf [https://perma.cc/9TKN-V4XE].
. Sara Kimberlin, Californians in All Parts of the State Pay More Than They Can Afford for Housing, Cal. Budget & Pol’y Ctr. (Sept. 2017), https://calbudgetcenter.org/resources/californians-parts-state-pay-can-afford-housing [https://perma.cc/43WE-HDCF].
. Joint Ctr. for Hous. Stud. of Harvard Univ., The State of the Nation’s Housing 2018 (2018), https://www.jchs.harvard.edu/sites/default/files/Harvard_JCHS_State_of_ the_Nations_Housing_2018.pdf [https://perma.cc/T9B2-98NM].
. L.A. Homeless Servs. Auth., 2020 Greater Los Angeles Homeless Count 22 (2020), https://www.lahsa.org/news?article=726-2020-greater-los-angeles-homeless-count-results [https://perma.cc/P5J2-QJWP].
. Cal. Ct. R. app. 1, r. 1.
. Press Release, Cal. Cts., Temporary Emergency Rules on Evictions, Foreclosures Set to End at Midnight Sept. 1 After Judicial Council Vote (Aug. 13, 2020), https://newsroom.courts.ca.gov/news/judicial-council-votes-to-end-temporary-emergency-rules-on-evictions-foreclosures-sept-1 [https://perma.cc/7HSA-DVD6].
. Blasi, supra note 8, at 10–11.
. Paul Ong, Chhandara Pech, Elena Ong, Silvia R. González & Jonathan Ong, UCLA Ctr. for Neighborhood Knowledge, Economic Impacts of the COVID-19 Crisis in Los Angeles: Identifying Renter-Vulnerable Neighborhoods 13 (2020), https://
. See A.B. 1436, 2019–2020 Reg. Sess. (Cal. 2019); see also Off. of Assemblymember David Chiu, Assembly Bill 1436: COVID-19 Eviction Prevention and Housing Stability (2020), https://www.publicadvocates.org/wp-content/uploads/ab-1436-covid-eviction-prevention-and-housing-stability-factsheet-6.9.20.pdf [https://perma.cc/5L22-MM9L]. This description is based on AB 1436 as amended on July 2, 2020.
. See, e.g., S.B.1410, 2019–2020 Reg. Sess. (Cal. 2020).
. Cal. Exec. Order No. 37-20 (Mar. 27, 2020), https://www.gov.ca.gov/wp-content/uploads/2020/03/3.27.20-EO-N-37-20.pdf [https://perma.cc/HB86-Y4HC].
. For a full analysis of the EO N-37-20, see The Governor’s Executive Order on Evictions: Why it Fails to Protect Tenants, and What Can Still Be Done to Provide Meaningful Protections, W. Ctr. on L. & Poverty (Apr. 1, 2020), https://wclp.org/analysis-of-governor-newsoms-executive-order-regarding-evictions-during-the-covid-19-crisis/ [https://perma.cc/67JE-WV7B].
. See supra note 10 and accompanying text.
. See Costa-Hawkins Rental Housing Act, Cal. Civ. Code §§1954.50–1954.535 (West 2019); Ellis Act, Cal. Gov’t Code §§7060–7060.7 (West 2019).
. Larry Adelman, RACE—The Power of an Illusion: Background Readings, PBS, https://www.pbs.org/race/000_About/002_04-background-03-02.htm [https://perma.cc/5X2M-9KAZ] (last visited Aug. 11, 2020).
. Erin Blakemore, How the GI Bill’s Promise Was Denied to a Million Black WWII Veterans, History (Sept. 30, 2019), https://www.history.com/news/gi-bill-black-wwii-veterans-benefits [https://perma.cc/8ACA-QDDR].
. Alexis C. Madrigal, The Racist Policy that Made Your Neighborhood, Atlantic (May 22, 2014), https://www.theatlantic.com/business/archive/2014/05/the-racist-housing-policy-that-made-your-neighborhood/371439 [https://perma.cc/CKF9-KG2C].
. E.g., Marisa Kendall, For Whites Only: Shocking Language Found in Property Docs Throughout Bay Area, Mercury News (Feb. 26, 2019), https://www.mercurynews.com/2019/02/26/for-whites-only-shocking-language-found-in-property-docs-throughout-bay-area [https://perma.cc/44PH-3PTV] (describing that while covenants that restricted home ownership or occupancy by race are no longer legally enforceable, they remain on the title of homes across California: “A 1939 Redwood City home recently put up for sale, for example, includes a rule stating ‘no person of any race other than the Caucasian or white race’ may use or occupy the property, with the exception of ‘domestic servants of a different race domiciled with an owner or tenant.’”).
. See Roots, Race, & Place, Othering & Belonging Inst. (Oct. 1, 2019), https://belonging.berkeley.edu/rootsraceplace/exclusionaryzoning [https://perma.cc/5BS3-8SCL].
. See Joint Ctr. for Hous. Stud. of Harvard Univ., supra note 11.
. See Nick Carey, Racial Predatory Loans Fueled U.S. Housing Crisis: Study, Reuters (Oct. 3, 2010), https://www.reuters.com/article/us-usa-foreclosures-race/racial-predatory-loans-fueled-u-s-housing-crisis-study-idUSTRE6930K520101004 [https://perma.cc/E3UM-BJ4L].
. Richard Florida, How Housing Wealth Transferred From Families to Corporations, Bloomberg CityLab (Oct. 4, 2019, 8:10 AM), https://www.bloomberg.com/news/articles/2019-10-04/the-decline-in-owner-occupied-single-family-homes [https://perma.cc/B68Z-LJZP].
. See Eli Vitulli, Ctr. for Popular Democracy, Hedge Papers No. 69, Billionaire Corporate Landlords: Exacerbating California’s Housing Crisis 13 (2019), https://populardemocracy.org/sites/default/files/HP69_CorpLandlords-CA-Housing_V14.pdf [https://perma.cc/695X-ANT6].
. See, e.g., Housing and Homelessness as a Public Health Issue, Am. Pub. Health Ass’n (Nov. 7, 2017), https://www.apha.org/policies-and-advocacy/public-health-policy-statements/policy-database/2018/01/18/housing-and-homelessness-as-a-public-health-issue [https://perma.cc/53PG-DE77].
. Governor Newsom launched the statewide Project Roomkey on April 3, 2020 to provide noncongregate emergency shelter for people experiencing homelessness. For an analysis of “The Project Roomkey Experiment,” see Ananya Roy, Gary Blasi, Jonny Coleman & Elana Eden, Hotel California: Housing the Crisis 14–17 (2020), https://escholarship.org/content/qt0k8932p6/qt0k8932p6_noSplash_5619d4b10747c86e7ad8e46197b6fd44.pdf [https://perma.cc/75MR-CZCP].
. Miriam Axel-Lute, New Communities Inc. at 50: Thoughts on Identity and a Different Way Forward, Shelterforce (Oct. 11, 2019), https://shelterforce.org/2019/10/11/new-communities-inc-at-50-thoughts-on-identity-and-a-different-way-forward [https://perma.cc/YT8R-HP7M].
. See Community Land Trusts and Stable Affordable Housing, HUDUser, https://www.huduser.gov/portal/pdredge/pdr-edge-featd-article-110419.html [https://perma.cc/MB8Y-N43X] (last visited Aug. 11, 2020).Vol68-Vyas & Warren