Many of the estimated 7.9 million U.S. tenants behind on rent breathed a sigh of relief on Aug. 3, when the CDC imposed a new 60-day eviction moratorium. Even with the extended order, millions of tenants will have COVID-related eviction records. Available data from Eviction Lab show that landlords filed over 468,000 eviction cases during the pandemic in the six states and 31 cities where Eviction Lab is able to track. The actual number is undoubtedly many times more than those recorded.
These eviction records will have long-lasting and problematic consequences for tenants and communities including reduced housing choices for renters, greater residential segregation and further family instability. Congress and the Biden administration must take action to limit the impact of eviction records on future housing options for American families.
Companies have provided background checks to landlords for decades, but tenant screening has changed dramatically in the last 10 years. Where once a landlord received a copy of all the relevant records, now tenant screening companies often make the decision for the landlord. In practice, that means that many landlords and tenant screening companies exclude anyone with an eviction record. Credit scores, criminal records and past debt to landlords are also used to exclude tenants, sometimes illegally. Rather than a landlord looking at a range of information about a renter, a computer now excludes the renter based on a box checked or an algorithm.
Under existing federal law, eviction records persist for seven years. And that’s not just for actual evictions. In most cases, tenants have an eviction record even if the tenant won the lawsuit, even if the case was dismissed without a decision on the merits or if the landlord received rental assistance from the government enabling the tenant to stay.
Using these kinds of records to deny housing just doesn’t make sense. A rental application should not be rejected for something that didn’t even happen. Yet, these policies are so common that tenants with eviction records often don’t even bother applying to quality rental housing, due to the nonrefundable fees they must pay just to be rejected.
Automatic denials by tenant screening companies and landlords based on eviction records — even when the eviction did not happen — help drive patterns of deep racial segregation in the United States. Black households are much more likely to face the threat of eviction or to face eviction itself during the pandemic. The vast majority of evictions are non-payment of rent, often brought about by some crisis in the family. How many thousands of people are still waiting for unemployment payments and rental assistance that they applied for months ago?
Tenants should not be categorically screened out of housing for the next seven years because of a pandemic. If you can pay your rent now, why should a past struggle prevent you from having a safe home?
Congress should address the long tail of eviction records by comprehensively regulating rental admission practices. Instead of allowing third parties and their computers to decide who is admitted to housing based on algorithmic processes, applicants should be guaranteed a fair and human review of a denied application. A family’s current ability to pay the rent should have the opportunity to override past financial struggles. The European Union already prohibits decisions based solely on automated processing in any matter significantly affecting consumers.
To enable meaningful enforcement, Congress should revise the Fair Credit Reporting Act and require landlords who deny admission to disclose their reasons and give wrongly denied applicants a right to sue.
In the meantime, federal agencies should use existing law to improve housing access by showing how blanket bans on renting to people with eviction records have a discriminatory impact. Agencies can also remove rental application fees as a deterrent by steering the tenant screening industry toward “portable” background reports that are purchased once and can be used for multiple rental applications (rather than requiring an applicant to pay repeatedly to apply again after rejection).
Eviction are highly disruptive to families, even more so during the ongoing COVID-19 pandemic. We need policies and programs to stop evictions. We also need to limit the harm caused by eviction records and help families find new and safe homes.