A Blog Post by Erika Tross and Elizabeth Rowe
We recently read a post from a couple facing eviction. The couple had been furloughed from their jobs since March due to the COVID-19 pandemic. Due to the furlough, the couple was unable to make April’s rent and received a letter from their landlord. The landlord’s letter threatened to terminate the couple’s rental agreement. It also threatened to seek possession of the rental unit unless April’s rent was paid. The couple needed help.
Their story is like so many others across this state. Many of our family, friends and neighbors will be amongst the thousands of eviction cases expected to be filed by landlords in Delaware, statewide, in the months to come.
Although the death toll of COVID-19 has not been as devastating in Delaware as it has in other states, the disease has sickened and killed many of Delaware’s most vulnerable residents, closed businesses and left millions unemployed. Recognizing the pandemic will affect a large number of Delawareans’ financial stability, Governor John Carney, on March 25, 2020, issued a sixth modification to the Delaware state of emergency.
In his introduction to the sixth modification, Governor Carney determined, “The spread of COVID-19 is likely to result in loss of work and loss of income for some residents of Delaware, which may impact their ability to pay for rental housing, and potentially result in their eviction.” This prediction has held true. At present, over 71,000 Delawareans had filed for unemployment since March 19, 2020.
The Governor verbalized additional concerns in the sixth modification. “The enforcement of eviction orders for residential premises is contrary to the interest of preserving public health and ensuring that individuals remain in their homes during the public health emergency.” Indeed, the eviction of individuals at this time could lead to an increase in homelessness and an even more rapid spread of the disease. The CDC reports, “People experiencing unsheltered may be at risk for infection when there is community spread of COVID-19.” Further, “Lack of housing contributes to poor health outcomes, and linkage to permanent housing should continue to be a priority.” https://www.cdc.gov/coronavirus/2019-ncov/community/homeless-shelters/unsheltered-homelessness.html .
The sixth modification addresses concerns pertaining to public safety and health, however it also recognizes that public safety and health are directly related to financial stability. In 2011, a study undertaken to analyze how social factors affect the U.S. mortality rate revealed troubling information. Overall, 4.5% of U.S. deaths are found to be attributable to poverty. https://www.mailmancolumbia.edu/public-health-now/news/how-may-us-deaths-are-caused-poverty-lack-education-and-other-social-factors. The verdict is in – disease kills people; but poverty also kills people. The sixth modification addresses the devastating and unavoidable financial impact that COVID-19 has and will continue to place on Delaware residents.
So what does this mean for the furloughed couple who received the landlord’s letter? The landlord may have been using a standard form letter used for any tenant that defaults on their rent payment. But, if so, the letter may not be in conformity with Governor Carney’s sixth modification. Among other protections, the current state of emergency order does not permit landlords to charge late fees or interest that accrues while the state of emergency is in effect. Some other protections include:
- No new action for summary possession (eviction) may be brought while the state of emergency is in effect and the public health emergency continues;
- Deadlines in actions filed prior to the institution of the state of emergency are stayed until the 31st day following the lifting of the state of emergency; and
- For any final judgment obtained prior to the state of emergency, the landlord cannot obtain the actual writ of possession and evict the tenant until seven days after the state of emergency lifts.
While the Governor has implemented protections for tenants, not all landlords – like the landlord of the furloughed couple – are abiding by the Governor’s order. Tenants may be receiving five-day notices with unlawful charges and fees; or are being wrongfully told they have to leave their home. In some cases, landlords are exercising self-help and cutting power and utility lines or shutting off heat and water. Worse, some landlords are attempting to extract sexual favors from their tenants in lieu of rent. These actions are not lawful in Delaware. If a landlord resorts to unlawful self-help measures, a tenant can file an emergency action in court to regain possession of the rental unit. In some cases, a tenant may also be able to obtain damages. In Delaware, a landlord must obtain an order from the Court before he/she can evict a tenant. This is true at all times – not just during the COVID-19 pandemic.
The sixth modification also attempts to address the needs of landlords. Landlords provide an essential service by making housing available to many who are not able to buy their own home. Through the Governor’s order, landlords are not left without recourse. Tenants are still responsible for paying rent. Moreover, landlords can seek an exemption from the order and file an eviction on an emergency basis. To do so they must show “continued tenancy will cause or is threatened to cause irreparable harm to person or property.” A tenant’s failure to pay rent, by itself, however, is not considered an emergency by the courts – especially during a state of emergency.
Although the furloughed couple is without work, there may be some economic assistance available to them as a result of the federal CARES Act. Congress passed the CARES Act on March 27, 2020 to address the economic fallout of the pandemic. The Act provides for, among other things, stimulus checks, enhanced unemployment benefits and student loan forbearance. These measures, along with other state and local measures, are available to help individuals like the furloughed couple become current on their rent.
This is an unprecedented time, however, concern for the health and wellbeing of ourselves and our neighbors will go a long way in bringing an end to this pandemic. As Governor Phil Murphy of New Jersey aptly tweeted, “To every landlord – now is a time to show some compassion, and to work with your tenants to ensure they stay safe.” Tenants who recently lost employment or who anticipate being financially affected by the pandemic are also encouraged to begin a dialogue with their landlords to help bring about a resolution favorable to all.
If you or someone you know needs assistance with an eviction or landlord-tenant matter, bankruptcy or consumer issue, contact the intake unit of Legal Services Corporation of Delaware Inc. at 302-575-0408. Legal Services provides free legal assistance statewide to low income Delawareans who qualify.
Erika Tross
Staff Attorney
Legal Services Corporation of Delaware, Inc.
Elizabeth Rowe
Staff Attorney
Legal Services Corporation of Delaware, Inc.
