Senate Banking Hearing on the Legacy of Racial Discrimination in Housing

Today, the Senate Banking, Housing, and Urban Affairs Committee held a virtual hearing titled “Separate and Unequal: The Legacy of Racial Discrimination in Housing.” In their opening statements, Chairman Sherrod Brown (D-OH) and Ranking Member Pat Toomey (R-PA) both acknowledged the broad history of housing discrimination in the United States.

Chairman Brown explained the purpose of the hearing, stating, “On this Committee, we have an opportunity to address the legacy of housing discrimination. And we have an obligation, under the law that this body passed 53 years ago” (the Fair Housing Act of 1968).

Richard Rothstein, author of The Color of Law and Senior Fellow Emeritus of the NAACP Legal Defense and Education Fund, was the first witness to testify. He outlined the history of government-sponsored discrimination in housing and homeownership. For example, he mentioned the role of redlining, racially restrictive covenants, and segregation in federal public housing.

Ms. Lisa Rice, President and CEO of the National Alliance for Fair Housing, and Dr. Jason Reece, Assistance Professor of City and Regional Planning at The Ohio State University explained how America’s legacy of housing discrimination continues through current practices. Ms. Rice cited 2019 Home Mortgage Disclosure Act (HDMA) data showing that 19.01% of Black applicants were denied mortgage loans compared to only 10.15% of White applicants. Dr. Reece pointed out that the legacy of housing discrimination has produced neighborhoods with concentrated poverty and a lack of recourses, which are largely populated by people of color.

Two witnesses from the American Enterprise Institute (AEI) also joined the hearing. Mr. Howard Husock, AEI Adjunct Fellow and Contributing Editor for the Manhattan Institute’s City Journal, proposed changes to the Community Reinvestment Act (CRA) and the Affirmatively Furthering Fair Housing (AFFH) rule. Mr. Tobias Peter, Research Fellow and Director of Research at the AEI Housing Center, pointed to racial discrimination in residential zoning policies and foreclosure-prone affordable housing polices as two major causes of racial disparities in housing.

Following the testimonies, several Senators discussed these housing issues with the witnesses. Senator Tim Scott (R-SC) asked whether additions to credit reporting, including reports on utility payments, would help to qualify more Black households for homeownership. Ms. Rice said she believes that those changes would help and that the GSEs (Fannie Mae, Freddie Mac, etc.) could help to collect that information.

Senator Van Hollen (D-MD) asked Mr. Rothstein about the “race neutral” policies he mentions in his book. Mr. Rothstein described how policies that are superficially race neutral can still have a disparate impact due to the history of racial discrimination. An example of that phenomenon is exclusionary zoning laws that, at least on the surface, do not explicitly mention race.

Senator Warnock (D-GA) asked how to address ongoing discrimination in the appraisal market. Ms. Rice responded that Congress and the administration should enforce the Fair Housing Act, fund fair housing organizations, and re-staff the Office of Fair Housing and Equal Opportunity at the Dept. of Housing and Urban Development (HUD).

Several other Senators from both parties attended the hearing to question the witnesses. All witness testimonies and a recording of the hearing are available at www.banking.senate.gov/hearings

CDC Eviction Moratorium Ruled Unconstitutional, Still in Effect

Late on Feb. 25, 2021, Judge J. Campbell Barker of the United States District Court for the Eastern District of Texas ruled, in a 21-page order, that the eviction moratorium issued by the Centers for Disease Control and Prevention (CDC) is unconstitutional.  Meaning the Federal government does not have the constitutional authority to issue the CDC eviction moratorium. The US Justice Department, attorneys for the CDC, argued that the federal government did have the authority to enact an eviction moratorium through Article 1 of the US Constitution’s power to enact laws necessary and proper to regulate interstate commerce. The Court was not convinced by this argument and ruled against the federal government. The Court did acknowledge that landlord-tenant relationship can be regulated by state law. 

Even though the CDC Eviction Moratorium was ruled unconstitutional, Judge Barker did not issue an injunction stopping the effect of the eviction moratorium. Therefore, the CDC Eviction Moratorium is still in place and effective at the time of this writing. The Justice Department released a statement on Saturday, February 27, 2021 “respectfully” disagreeing with the Court’s decision and further stating that “the [Justice] Department has appealed that decision.”  

NAHRO will continue to monitor the court activity surrounding the CDC Eviction Moratorium and will provide additional updates as warranted. 

New, Updated Emergency Rental Assistance Guidance Issued

The U.S. Department of Treasury (Treasury) has released new and updated frequently asked questions (FAQs) on the Emergency Rental Assistance Program (ERAP) that was created by the December 27, 2020 omnibus appropriations act. These new February 22, 2021 dated FAQs replace in their entirety the previously issued January 19, 2021 FAQs.

NAHRO commends Treasury for the new FAQs, as they provide much-needed clear and reasonable guidance on the ERAP. NAHRO has been in contact with Treasury on numerous occasions to ensure that PHAs and their residents are served by the ERAP. On January 25, 2021, NAHRO sent a letter to the Treasury and U.S. Department of Housing and Urban Development outlining our concerns with the January 19, 2021 FAQs, and the new FAQs address many of NAHRO’s concerns. These new FAQs are a major step forward for PHAs in meeting their COVID-19 housing needs of HUD-assisted residents.  

Below are a number of the key guidance points provided by the February 22, 2021 FAQs:

  • Federally assisted tenants (Public Housing, Housing Choice Voucher, & Project-Based Rental Assistance) are eligible for ERAP assistance for the tenant-owed portion of rent and utilities that are not subsidized. 
  • Tenants may document their financial hardship due to COVID-19 (unemployment benefits, reduction of income, significant costs, or other COVID-19 financial hardship) by written attestation signed by the tenant that one or more household members meet this eligibility criteria. 
  • Tenant household income is defined by using either HUD’s “annual income” definition in 24 CFR 5.609 or adjusted gross income reported on an Internal Revenue Service Form 1040 series. 
  • “Other expenses related to housing” examples are provided. The examples include but are not limited to: 
    • relocation expenses and rental fees (if a household has been temporarily or permanently displaced due to the COVID-19 outbreak);  
    • reasonable accrued late fees (if not included in rental or utility arrears and if incurred due to COVID-19); and  
    • Internet service provided to the rental unit. 
  • Outreach to landlords and utility providers must be done before providing the funds directly to the tenant. Outreach can be done using the following methods: 
    • a request for participation is sent in writing, by mail, to the landlord or utility provider, and the addressee does not respond to the request within 14 calendar days after mailing;  
    • the grantee has made at least three attempts by phone, text, or e-mail over a 10 calendar-day period to request the landlord or utility provider’s participation; or 
    • a landlord confirms in writing that the landlord does not wish to participate. 
  • PHAs, non-profit organizations, and local governments may operate ERAP programs through contractor, subrecipient, or intergovernmental cooperation agreements with the primary grantee at the state or local jurisdiction level. These agreements must meet monitoring and management requirements of 2 CFR 200.331-200.333 and procurement standards of 2 CFR 200.317-200.327. 

These are just a few of the answers in the new FAQs. The full FAQs are available on the NAHRO website’s Emergency Rental Assistance Program page. The Emergency Rental Assistance Program, including these FAQs, will be a focus of the 2021 NAHRO Online Washington Conference’s Treasury Affordable Housing Program and Washington Report sessions on March 2, 2021. Click here to register for the 2021 NAHRO Online Washington Conference

CDC Publishes Order Halting Residential Evictions

On late Tuesday afternoon, the Centers for Disease Control and Prevention (CDC) and the Department of Health and Human Services (HHS) announced an order to stop residential evictions to halt the spread of COVID-19. The order is currently scheduled to be published in the Federal Register on September 4. It becomes effective on publication and will last until December 31, 2020, unless extended.

The order notes that as of late August, there have been over 23 million cases of COVID-19 globally, resulting in over 800,000 deaths. It also states that, domestically, there have been over 5.5 million cases, which have resulted in over 174,000 deaths. Given the “historic threat to public health,” the order notes that “[e]viction moratoria facilitate self-isolation by people who become ill or who are at risk for severe illness from COVID-19 due to an underlying medical condition.” The order also notes that eviction moratoria help implement stay-at-home and social distancing orders, while also preventing homelessness which “increases the likelihood of individuals moving into close quarters in congregate settings, such as homeless shelters, which then puts individuals at higher risk of COVID-19.”

The order institutes a temporary eviction moratorium. It states that a “landlord . . . shall not evict any covered person from any residential property in any State or U.S. territory” in which there are COVID-19 cases. The term “covered person” includes any tenant who states—under the penalty of perjury—to their landlord, owner, or other person with the power to evict that the following conditions have been met:

  • The person has used their best efforts to obtain available government assistance for rent or housing;
  • The person meets any of the following three criteria:
    • The person does not expect to earn more than $99,000 in annual income in calendar year (CY) 2020 (or more than $198,000 for joint tax returns);
    • The person was not required to report any income in 2019 to the Internal Revenue Service (IRS); or
    • The person received a “stimulus check” under the Coronavirus Aid, Relief, and Economic Security (CARES) Act;
  • The person is unable to pay the full rent or make a full housing payment due to loss of compensable hours of work, a lay-off, or extraordinary out-of-pocket medical expenses;
  • The person is making “best efforts” to make timely partial payments that are as close to the full payment as possible; and
  • Eviction would render the individual homeless or force the individual to live in close quarters in a new congregate or shared living setting.

Despite the order, individuals are still obligated to pay rent or make applicable payments. The order does not prevent charging or collecting fees, penalties, and interest for late payments. Tenants may still be evicted for the following:

  • Engaging in criminal activity on the premises;
  • Threatening the health or safety of other residents;
  • Damaging or posing an immediate and significant risk of damage to property;
  • Violating any applicable building code, health ordinance, or similar regulation relating to health and safety; or
  • Violating any other contractual obligation (other than late fees, penalties, or interest).

This order does not apply in certain areas. It does not apply in any “State, local, territorial, or tribal area with a moratorium on residential evictions that provides the same or greater level of public-health protection.” Additionally, the order does not apply in American Samoa—which has no reported cases—unless cases develop.

The order is not a rule as defined in the Administrative Procedure Act (APA), but is an “emergency action.” If it did qualify as a rule, the order notes that there is still “good cause” to dispense with the regular notice-and-comment process because of the public-health emergency.

There are certain criminal penalties for violating this order. A person violating the order may be subject to a fine of $100,000, one year of jail, both a fine and jail, or another lawful penalty, if the violation does not result in a death. If the violation results in a death, the person violating the order may be subject to a fine of $250,000, one year of jail, both a fine and jail, or other lawful penalty. An organization violating this order may be subject to $200,000 per event, if the violation does not lead to a death and $500,000 per event if the violation results in death. The Department of Health and Human Services is authorized to cooperate with and aid state and local authorities to authorize this order.

The order includes a declaration for tenants. A tenant must provide a copy of the declaration to their landlord, owner, or other individual who has the right to evict. Each adult listed on the lease must complete the declaration. The declaration must be true under a penalty of perjury.

A pre-publication copy of the order can be found here.

NAHRO continues to encourage Public Housing Authorities (PHAs), Section 8 landlords, and tenants to work together to minimize the financial impact of COVID-19. Tenants should contact their PHA notifying them of any reduction of income due to the pandemic. Landlords and PHAs should reach out and coordinate with tenants concerning unpaid rent. Best practices in preventing evictions include repayment agreements, retroactive recertifications and proactive communication with tenants.

Below are links to HUD and NAHRO eviction prevention resources:

Our advocacy must continue to ensure adequate resources that support your programs and provides rent relief for unassisted families. Use the NAHRO Advocacy Action Alert Center to send letters to your members of Congress and the Administration and let them know the critical role quality house and rental assistance plays as we continue to navigate the COVID-19 pandemic.

President Signs Executive Order on Assistance to Renters and Homeowners

On August 8, President Trump signed an executive order titled “Executive Order on Fighting the Spread of COIVD-19 by Providing Assistance to Renters and Homeowners.” This Executive Order (EO) was signed after the negotiations on a fourth COVID-19 legislative relief package broke down.

The EO states, “[i]t is the policy of the United States to minimize, to the greatest extent possible, residential evictions and foreclosures during the ongoing COVID-19 national emergency.” Specifically it directs the Department of Housing and Urban Development (HUD) “to promote the ability of renters and homeowners to avoid eviction or foreclosure” through actions that “may include encouraging and providing assistance to public housing authorities, affordable housing owners, landlords, and recipients of Federal grant funds in minimizing evictions and foreclosures.” The agencies of HUD and Treasury are also directed to “identify any and all available Federal funds to provide temporary financial assistance to renters and homeowners.” Additionally, the Department of Health and Human Services, along with the Centers for Disease Control and Prevention (CDC), “shall consider whether any measures temporarily halting residential evictions . . . are reasonably necessary to prevent further spread of COVID-19.”

This Executive Order, in and of itself, does not specifically extend nor create an eviction moratorium nor does it create a new rental or homeowner assistance program. This Executive Order instructs the executive branch of government – specifically Health and Human Services; Centers for Disease Control and Prevention (CDC); Treasury; Housing and Urban Development; and the Federal Housing Finance Agency (FHFA) – to assess their current resources and tools related to renters and homeowners affected by COVID-19.

NAHRO continues to encourage Public Housing Authorities (PHAs), Section 8 landlords, and tenants to work together to minimize the financial impact of COVID-19. Tenants should contact their PHA notifying them of any reduction of income due to the pandemic. Landlords and PHAs should reach out and coordinate with tenants concerning unpaid rent. Best practices in preventing evictions include repayment agreements, retroactive recertifications and proactive communication with tenants.

Below are links to HUD and NAHRO eviction prevention resources:

Our advocacy must continue to ensure adequate resources that support your programs and provides rent relief for unassisted families. Use the NAHRO Advocacy Action Alert Center to send letters to your members of Congress and the Administration and let them know the critical role quality house and rental assistance plays as we continue to navigate the COVID-19 pandemic.

This Wednesday: NAHRO Legislator of the Year Todd Young Kicks off August Advocacy Campaign

This Wednesday at 2pm eastern time, NAHRO is hosting a complimentary webinar awarding NAHRO’s Co-Legislator of the Year and kicking off NAHRO’s August Advocacy Campaign.

NAHRO has an ambitious goal this August – send 8,501 letters to Capitol Hill during the upcoming Congressional August recess. NAHRO Legislator of the Year Senator Todd Young (R-Ind.) will join NAHRO to receive his award and help us kick off our August advocacy campaign.

NAHRO Director of Congressional Relations Tess Hembree will also lead a conversation with members of the Legislative Network on their advocacy successes and how they plan to advocate for housing and community development this summer.

Don’t miss this critical conversation on how you can have your voice heard by lawmakers this summer.

Click here to register!

CARES Act Eviction Moratorium Ends This Week, Eviction Prevention Resources

Section 4024 of the CARES Act stopped non-payment of rent evictions (and stopped imposing fees and penalties for non-payment of rent) for 120 days beginning on March 27 for many tenants receiving Federal rental assistance including the Public Housing, Housing Choice Voucher, and Project-Based Voucher programs. The 120-day eviction moratorium expires this Saturday, July 25, meaning Public Housing Authorities (PHAs) and landlords may begin issuing 30-day notices to vacate for non-payment of rent after July 25, 2020.

The U.S. Department of Housing and Urban Development (HUD) has encouraged tenants, landlords, and PHAs to work together to minimize the impact of the CARES Act eviction moratorium ending. Tenants should contact their PHA notifying them of any reduction of income due to the pandemic. Landlords and PHAs should reach out and coordinate with tenants concerning unpaid rent, including potential repayment agreements. PHAs should also consider implementing retroactive recertifications and informing their tenants of their availability.

Below are links to HUD and NAHRO eviction moratorium and eviction prevention resources:

NAHRO continues to provide the latest housing related COVID-19 information at www.nahro.org/coronavirus.

NAHRO’s New Housing Proposals Focus on the Future

The nation’s public housing agencies and community development agencies have been housing our nation’s families and creating vibrant, stable communities for decades. And they’re continuing to do this vital work of providing shelter, creating opportunity, and addressing inequities during a pandemic that’s straining both local and national resources.

But even as we continue to cope with the fallout of COVID-19, we must also work on solutions for both current and future housing needs. We need new housing construction, more resources for existing housing programs, and flexibilities that prioritize progress over paperwork. NAHRO’s What Happens Next: Housing Beyond the Pandemic provides funding and policy proposals that will:

  • Increase housing supply and improve affordability
  • Preserve existing affordable housing
  • Stabilize families, and
  • Prioritize progress over paperwork.

The paper is available here.

HUD PIH to Hold Conference Call on CARES Act Funding on July 9th at 4 pm ET

In an email sent earlier today, HUD’s Office of Public and Indian Housing (PIH) stated that they will be holding a conference call on July 9th, 2020 at 4 pm ET, which will provide updates on CARES Act funding, the second round of waivers, the eviction moratorium, HAP funding and new FAQs.  

Please click here for a calendar invitation. 

The Department invites PHAs to submit questions and topics for future calls to PIH@hud.gov. Call-in information is available below: 

Step 1: Dial into the conference. 

Dial-in: 1-877-369-5243 or 1-617-668-3633 

Access Code: 0410949## 

If the automated recording indicates the conference is full, please use overflow information: 

Dial-in: 1-877-369-5243 or 1-617-668-3633  

Access Code: 0120428# 

Step 2: Join the conference on your computer. 

Entry Link: https://ems8.intellor.com/login/829379 

Additional information and resources on COVID-19 are available at www.nahro.org/coronavirus.  

New Eviction Moratorium Resident Flyer Released by NHLP and NAHRO

The National Housing Law Project (NHLP) and the National Association of Housing and Redevelopment Officials (NAHRO) have collaborated to produce a resident flyer on the federal eviction moratorium. The flyer is designed for Public Housing and Housing Choice Voucher residents and simplifies the 120-day eviction moratorium that was included in the CARES Act when it passed in March by using a question and answer format along with descriptive case studies.

The eviction moratorium flyer is available here and on NAHRO’s COVID-19 Resource page at www.nahro.org/coronavirus.

Click to access NAHRO_NHLP_FinalTenantFlyer_2sided_6.12.2020.pdf