KC Tenants and ACLU sue over court order allowing evictions during the pandemic

Despite a national eviction moratorium ordered by the Centers for Disease Control and Prevention (CDC) to protect low-income renters during the coronavirus pandemic, evictions for nonpayment of rent have continued around the country. Evictions in some areas are being permitted by local courts; and renters in Kansas City, Missouri, have fought back. 

The American Civil Liberties Union (ACLU) has sued the Jackson County Circuit Court on behalf of KC Tenants, a nonprofit organization promoting fair housing issues in Kansas City. The lawsuit challenges a court administrative order that will let landlords pursue evictions despite federal protections under the CDC moratorium.

The circuit court administrative order was supposed to provide guidance on how the CDC eviction moratorium would be applied in the court system. Instead, it allows landlords to continue filing evictions. Jackson County’s administrative order was issued the day before the CDC order took effect, and runs through December 31, when the CDC eviction moratorium ends.

The Circuit Court makes clear that its order does not bar landlords from pursuing evictions. Landlords can still evict renters for damage to apartments, criminal activity and other lease violations. The administrative order says that evictions will not be allowed against renters covered by the CDC moratorium, but it lays out a process that lets landlords start the eviction process against covered renters.

Landlords can file a “Verification” that says they did not receive a tenant declaration required by the CDC eviction moratorium, or that they know the tenant is not covered by the CDC order. Landlords also have to provide this document to the tenants, who have seven days to request a hearing to challenge the Verification.

Not only does the Jackson County administrative order allow eviction filings and cases to proceed, it also allows landlords to challenge the truth of tenant declarations. Renters are only covered by the CDC eviction moratorium if they give their landlords a signed declaration form. The declaration certifies that the renter earned less than $99,000 and had a significant loss of income because of the pandemic. The form also certifies that renters will try and pay what rent they can as timely as possible, and that they face homelessess or doubling up if evicted.

This administrative order puts low-income renters at a huge disadvantage. If renters facing eviction want to challenge the landlord’s “Verification,” the burden of proof is on them. And the burden of proof also falls on the renter when landlords challenge tenant declarations.

Renters will need to have good records related to income and employment to prove they qualify for the CDC protections. Few low-income renters have legal representation in eviction court, while most landlords have lawyers. If renters cannot prove their declarations are true, they can be charged with perjury.

The pandemic also complicates this process. It means that there could be multiple hearings for an eviction case. Renters risk their health going in person to eviction court. Many low-income renters also do not have the means to connect to remote court sessions. This makes it more likely that many renters lose their judgments because they cannot get to court.

Tenants are pushing back. The KC Tenants lawsuit says that the CDC eviction moratorium expressly prohibits and halts all stages of evictions for nonpayment of rent. This means landlords filing for eviction, submitting verifications, or any other step needed to remove tenants from their homes.

In an ACLU press release announcing the lawsuit, KC Tenants Director Tara Raghuveer said, “Every tenant deserves the right to safe, accessible housing. The Jackson County courts are allowing landlords to strip tenants of that right by evicting them in the middle of a pandemic and economic crisis. It’s inhumane and unconstitutional.”

In addition, the ACLU and KC Tenants note in their complaint that landlords are already using the order to move against renters. The vast majority of landlords in pending cases have challenged the truthfulness of tenant declarations.

KC Tenants has already had success in promoting fair housing protections for Kansas City renters. KC Tenants led a successful campaign to have the City Council adopt a Tenants Bill of Rights last December, 2019. It guarantees four key rights for renters in Kansas City:

• Right to safe and accessible housing
• Freedom from discrimination and retaliation
• Right to fair compensation and restorative justice
• Right to organize and bargain.

The Trump administration recently took steps that may support the Jackson County order. The administration provided guidance on how to apply the CDC’s eviction moratorium nationwide. This guidance was issued in a Frequently Asked Questions (FAQ) document that is very friendly to landlord interests. It allows landlords to pursue all stages of eviction, as long as tenants are allowed to stay in their homes through December 31.

The administration’s guidance also allows landlords to challenge the truth of tenant declarations, just like the Jackson County courts. The administration also says that landlords are not obligated to let tenants know about their rights under the CDC order. This is pretty bad, since tenants may not know that they have to give a signed declaration to their landlords to be protected from eviction.

Affordable Housing Online reached out to Sandra Park, Senior Staff Attorney with the ACLU’s Women’s Rights Project, about next steps in the case. The ACLU has responded with an additional filing in federal court this week. Their filing explains why Missouri courts should follow the language in the original CDC eviction moratorium and disregard the Trump administration’s guidance in the FAQ. Ms Park said that “We are basically arguing that the Moratorium is clear and should be read to prohibit filings of actions; the FAQ should not be deferred to given the clear language in the Moratorium.”

Park also noted that under Missouri law, landlords need to have the right of possession of the property before they can file eviction actions. However, the CDC eviction moratorium temporarily denies landlords the right to possess property until after December 31.

Even though the CDC eviction moratorium is only putting off large-scale evictions until January, it has helped countless low-income renters remain in their homes during this health crisis. The KC Tenants lawsuit is a grassroots challenge to actions that put low-income renters at risk of homelessness during a pandemic, whether by local courts or the Trump administration.