The Stigma of a Scarlet E
The apartment was just what Chanque Jones needed: four bedrooms, and $500 cheaper than the run-down house she had been renting back in Chicago. It was a fresh start for her three sons, as well as for her mobile manicure business.
Then an old eviction case turned up on a routine background check prepared for her landlord. It didn’t matter that she had gone to court and won. The fact that the case was filed at all was enough to mark her as a risk: what tenant advocates call a Scarlet E — the E standing for eviction.
“I didn’t even know about the eviction record,” Ms. Jones said.
Eviction cases are a stubborn blot on any renter’s history. They are nearly impossible to scrub away, even if the tenant made good on obligations or it was only a scare tactic by an aggressive landlord. The pandemic has given the problem new urgency: Although the Biden administration has announced a new eviction moratorium for much of the country through Oct. 3, millions of renters are behind on their payments after more than a year of economic upheaval and could face eventual eviction.
Aware of the enormous consequences for renters who lost jobs or work hours because of the pandemic, a handful of states and cities have passed laws to make it easier for tenants to seal their eviction cases — a crucial step that can mean the difference between having a roof over their heads or not.
In Ms. Jones’s case, legal aid lawyers helped prove to her landlord in Warsaw, Ind., that she wasn’t an eviction risk so she could get into the apartment.
“I needed to get out of the place where I was, and this had been hindering me,” Ms. Jones said. Lawyers also worked with her to seal the eviction case under a new Illinois law that automatically seals most eviction cases filed since the start of the pandemic and permits tenants to wipe older ones from court records if they prevailed in court.
The pandemic has prompted similar laws in Nevada and Washington, D.C., and New Jersey adopted one just on Wednesday. North Carolina is also considering such a measure. But few other locations are, and at least one state, Nebraska, has rejected a proposal to ease the sealing of eviction cases. The new laws cover only a sliver of the Americans now at risk of eviction: A Census Bureau survey estimates that 11 million adults are delinquent on rent.
Although the federal government has set aside $47 billion in rental assistance, only $3 billion has been distributed so far, according to the Treasury Department. The Biden administration’s new eviction moratorium is intended to buy more time to hand out the aid, but problems abound. States have had to create programs to handle the money, and in many cases landlords must agree to participate.
Housing advocates fear that the new laws and government efforts won’t be enough to stem a flood of eviction cases that will linger on background checks for years, marking tenants as untouchable — even if their cases are dropped once the aid arrives.
“We know this Scarlet E does cause all kinds of harm to people, and there is no reason to cause further harm to people,” said Kathryn A. Sabbeth, a professor at the University of North Carolina School of Law, who recently wrote a column about how such cases linger. “Using eviction records exacerbates inequality and the challenges that people face.”
A Blunt Tool
The tenant screenings where such marks show up have become a crucial component of the rental system. Companies that quickly generate automated background checks work with an estimated nine out of 10 landlords across the country. These firms scour public documents like court records for information, but the reports can conflate people with similar names and cause other headaches.
An eviction, even an old one, can be enough for a landlord to move on to the next application.
Felisha Nelson said she had trouble finding an apartment in Omaha this year because of a seven-year-old eviction case that showed up on her background check. After more than two months of searching, she found a landlord willing to rent to her — but only after she laid out a security deposit that was larger than normal.
“This thing hangs over your head. It labels you, and that is not who you are,” said Ms. Nelson, who has three children and works for an insurance brokerage. “People change. The whole process really feels criminal.”
For Ms. Nelson, that’s not the end of it. The landlord at her last residence began an eviction case against her out of a desire to sell the house where she was living, but dropped the case when Ms. Nelson agreed to leave by certain date. Still, that could mean two eviction filings on her record that could make it difficult for her to rent in future, said Caitlin Cedfeldt, a lawyer with Legal Aid of Nebraska, which helped negotiate Ms. Nelson’s exit.
Had Nebraska passed the bill proposed in January, both cases could be sealed and put out of reach of background checks. For now, both sides must agree to a seal.
Ms. Cedfeldt said that she had asked lawyers for several landlords to seal eviction records during the pandemic after reaching settlements, but that many had refused.
“They say: ‘No, we won’t take it off their record. We want people to know they are a bad tenant,’” Ms. Cedfeldt said. “It is sort of punitive.”
Housing advocates said eviction actions were a blunt tool that landlords used in a variety of ways — like trying to get Ms. Nelson out of a property in hopes of selling it. Landlords might not even intend to remove the tenant: Some filed eviction actions during the federal moratorium as a means of prodding renters to apply for rental assistance or other government financial relief, advocates said.
But the effect is the same as an eviction that goes all the way to judgment. Background checks can contain many errors and often do not reveal if an eviction case was resolved in favor of a tenant, said Ariel Nelson, a lawyer with the National Consumer Law Center.
“It’s a huge problem even if the landlord doesn’t think the eviction filing is going to go anywhere,” she said.
Loopholes in the New Laws
Landlord groups and tenant screening companies have criticized some of the new eviction privacy laws, saying they complicate the ability of property owners to properly review tenants. Renters who were evicted for damaging property or breaking a housing complex’s rules could use the laws to hide their cases, the critics say.
“It is very difficult to distinguish nonpayment evictions from criminal activity and other lease violation evictions,” said Eric Ellman, an official with the Consumer Data Industry Association, which represents several tenant screening companies. “Blinding a landlord to past evictions of an applicant denies that landlord the ability to keep out tenants who might pose a risk to other tenants.”
But some tenants say landlords are already finding loopholes that diminish the protection they’re supposed to receive.
Sarah Forbes, a Las Vegas artist who had been living for several years in a weekly residence with her longtime partner, said she had gotten into a bitter dispute with the landlord after she stopped paying rent during the pandemic because both she and her boyfriend were unable to work.
The couple began informing other tenants of their rights under the federal eviction moratorium, and Ms. Forbes complained to the local authorities that the building’s management was harassing her for providing that help, she said. The landlord, Siegel Group, which operates dozens of weekly rentals in Nevada and other states, then filed an eviction case, claiming it was trying to move her out not because of nonpayment but because of other violations of the lease.
Nevada’s law allows eviction filings for nonpayment of rent brought during the pandemic to be sealed once the cases are resolved. But since Siegel argued that Ms. Forbes was being evicted for other reasons, the hearing officer who heard her case and found for the landlord elected not to seal the record.
Michael Crandall, a senior vice president with Siegel, said in a statement that Ms. Forbes and her boyfriend “were openly hostile and combative towards staff and management.” One of them, he said, sprayed “one of the managers in the face with bug spray.” When they were evicted “after 15 months not paying anything for rent,” the couple left behind a damaged and dirty unit, he said.
Ms. Forbes, 34, denied those allegations. She believes that her landlord did in fact evict her for nonpayment, and noted that she had an application for rental assistance pending at the time. She is appealing the hearing officer’s denial of her sealing request.
“It seems if I was evicted during the pandemic I should be covered,” Ms. Forbes said.
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