IT’S COLDER DAY BY DAY: ADOPTING A WINTER EVICTION MORATORIUM IN MINNESOTA

By Daniel Suitor, Volume 105 Staff Member, Volume 106 Lead Symposium Editor

INTRODUCTION

Missing your rent payment shouldn’t be a death sentence, but it could be in Minnesota. An eviction occurring during the coldest months of the winter could put a family out on the street in temperatures below 0°F.[1] This Post argues that the Twin Cities should follow Seattle, Washington’s example and adopt a moratorium on wintertime evictions. It first outlines the rights of parties to a lease under the Seattle law, then continues by discussing the Twin Cities’ need for such measures. Finally, it weighs the costs and benefits of the law, and discusses the outcome of constitutional challenges to the Seattle ordinance. A winter eviction moratorium would save lives at minimal costs to landlords, and should be adopted as a matter of public health and safety.

I.      THE SEATTLE WINTER EVICTION MORATORIUM

In February 2020, the Seattle City Council passed an ordinance amending the city’s Municipal Code to prevent evictions between December 1 and March 1 each year.[2] The moratorium’s protections must be invoked as an affirmative defense at an eviction hearing,[3] and the law only covers households under the median income for the area.[4] So-called “mom and pop” landlords are exempted from the moratorium.[5] Furthermore, the law still permits eviction of tenants engaged in illegal drug-related or criminal activity,[6] “conduct [that] has a substantial detrimental impact on . . . the health or safety of other tenants,”[7] or for a variety of business considerations concerning the unit.[8] The law does not abrogate a tenant’s liability for unpaid rent. Finally, the ordinance’s text suggests that an eviction proceeding could begin during the moratorium period, so long as it did not “result in the tenant having to vacate” between the effective dates.[9]

II.   THE FOLLIES AND DANGERS OF WINTER EVICTIONS IN MINNESOTA

Trouble paying rent and eviction are the two most common causes of homelessness in Minnesota,[10] and the Twin Cities average over 2,000 evictions between December and February.[11] 93% of these evictions are for nonpayment of rent, and those cases concern less than $1,400 in principal rent on average.[12] Many of these evictions may be completely unnecessary. Landlords often “feel that evictions or notices to vacate are the only tool to solve problems.”[13] However, when both parties appear at an eviction hearing, they settle 83% of the time, and 61% of those settlements require no judicial enforcement.[14] Only 28% of Twin Cities eviction case settlements require tenants to move out.[15] After accounting for tenants who default on their settlement agreements, a third of all local eviction filings result in the tenant retaining their residence by agreement of both parties to the lease.[16]

Those figures suggest that local eviction filings are often just a landlord playing hardball, but the stakes of that game could be life and death for tenants. With an average temperature under 19°F between December and February, an eviction resulting in homelessness could be deadly.[17] That threat is not hypothetical: one report found that, nationwide, around 700 unhoused people die each year from hypothermia.[18] This winter, three unhoused people have died of exposure in St. Paul alone.[19] When including comorbidities, temperatures below 32°F have been found to increase unhoused peoples’ overall risk of death by 84%, and that risk rises to 321% when the temperature drops below 9°F.[20] Despite those dangers, landlords have more protections during the winter than tenants.[21] A family should not be thrown out into below-freezing weather with nowhere to go over $1,400 in rent, yet this is a legal and common practice in the Twin Cities.[22]

III. ADOPTING A WINTER EVICTION MORATORIUM IN MINNESOTA

The Twin Cities should adopt winter eviction moratoria in the model of the Seattle ordinance. That law protects the health and safety of tenants while striking a balance with landlords’ interest in rent collection and eviction for issues not related to payment of rent. Winter evictions bear heavy costs for both tenants and municipalities. The high likelihood of experiencing homelessness after an eviction means that a cold-weather ejectment creates high health risks for the evictee.[23] In addition to the sizeable out-of-pocket costs of evictions,[24] the presence of an eviction filing on a tenant’s public record can cost them federal housing assistance or result in future landlords demanding higher rents.[25] A winter eviction moratorium may encourage landlords and tenants to resolve disputes without relying on evictions.[26] If such a development resulted in just 10% fewer evictions from December through February, the law could save the Twin Cities almost $1.4 million per year in reduced criminal justice, child welfare, and social services costs.[27] On an economic basis, these municipal benefits and the savings to tenants likely far outweigh whatever marginal gains landlords glean from being able to evict a few weeks earlier during one three-month span.[28]

Meanwhile, it is not clear whether landlords would suffer any appreciable damage from a winter eviction moratorium. Delinquent tenants would still accrue full liability for unpaid rents, and could be evicted for nonpayment at the close of the moratorium period.[29] Twin Cities landlords have a track record of getting tenants out quickly and certainly if needed,[30] and there are a variety of effective mechanisms to collect unpaid rents once they secure a judgment.[31] Before the COVID-19 pandemic, the Twin Cities had some of the lowest rental vacancy rates in the country.[32] This suggests that, under normal conditions, landlords will have little trouble re-renting apartments if they do evict. Furthermore, there is no evidence that a winter eviction moratorium will result in widespread nonpayment of rent,[33] and available data suggests the law may only affect the top 1.6% of landlords.[34] Such a law would be reasonably limited, as landlords’ ability to evict for bona fide health, safety, or business reasons would not be impaired by such a moratorium.[35]

If the Twin Cities adopted winter eviction moratoriums, they would likely survive  constitutional challenges. On February 24, 2021, a Washington state trial court upheld Seattle’s winter eviction moratorium against a slew of constitutional challenges.[36] The Rental Housing Association of Washington (RHAWA), a trade association for landlords,[37] alleged that the winter eviction moratorium committed equal protection, procedural and substantive due process, Contracts Clause, and Takings Clause violations under the Washington Constitution.[38] Washington and Minnesota generally analyze these state constitutional issues under identical or highly similar standards as their federal constitutional counterparts.[39] The Washington court denied RHAWA’s claims and ruled the winter eviction moratorium constitutional on all counts.[40] While the case brought a facial challenge to the law,[41] Seattle’s victory bodes well for a Minnesota winter eviction moratorium.

CONCLUSION

Minneapolis and St. Paul are in dire need of wintertime tenant protections. Adopting a Seattle-like winter eviction moratorium in the Twin Cities will save lives, and there is evidence to suggest that its economic benefits will outweigh any costs to landlords. No one’s life should be in danger because their rent check didn’t clear, and this law is step towards achieving that goal.

 

[1] See Andrew Krueger, Temperatures Plummeted to as Low as 50 Below Zero in Minnesota on Saturday Morning, MPR News (Feb. 14, 2021, 12:19 PM), https://www.mprnews.org/story/2021/02/13/temperatures-plummeted-to-as-low-as-50-below-zero-in-minnesota-on-saturday-morning [https://perma.cc/FE9L-4NR4].

[2] Seattle, Wash., Ordinance 126041, at 10 (Feb. 10, 2020).

[3] See Seattle, Wash., Mun. Code § 22.206.160(C)(8) (2021).

[4] See id. § 22.206.160(C)(8)(b).

[5] Id. § 22.206.160(C)(8)(c) (exempting landlords who have an ownership interest in four or fewer rental units).

[6] Id. § 22.206.160(C)(1)(p), (8)(d).

[7] Id. § 22.206.160(C)(8)(d).

[8] See id. § 22.206.160(C)(1)(e)–(f), (j)–(k), (m)–(o), (8)(d).

[9] Id. § 22.206.160(C)(8)(a). It is unclear precisely how the Seattle moratorium will function, as Seattle has been covered by superseding federal, state, and municipal COVID-19 eviction moratoria for all but a few weeks since the ordinance’s enactment. See Kevin Schofield, City, State Get Win in Court on Eviction Moratoria, Seattle City Council Insight (Dec. 2, 2020), https://sccinsight.com/2020/12/02/city-state-get-win-in-court-on-eviction-moratoria/ [https://perma.cc/M8JW-V4UB]. As of this time, major legal databases do not record any decisions concerning the Seattle winter eviction moratorium.

[10] See Brian Pittman, Stephanie Nelson-Dusek, Michelle Decker Gerrard & Ellen Shelton, Wilder Rsch., Homelessness in Minnesota 36 (2020).

[11] See Minneapolis–St. Paul, Minnesota, Eviction Lab, https://evictionlab.org/eviction-tracking/minneapolis-saint-paul-mn/ [https://perma.cc/57Z7-9D6U] (last visited Feb. 20, 2020).

[12] Zoe Thiel, Minneapolis Innovation Team, Evictions in Minneapolis 7 (2016).

[13] City of Minneapolis, Evictions and Calls for Service 9 (2018)

[14] See Thiel, supra note 12.

[15] See id.

[16] See id.

[17] Twin Cities, Nat’l Weather Serv. Forecast Off., https://w2.weather.gov/climate/index.php?wfo=mpx [https://perma.cc/3QHX-7P3A] (last visited Feb. 20, 2021).

[18] Rebecca Sturgis & Neil J. Donovan, Nat’l Coal. for the Homeless, Winter Homeless Services: Bringing Our Neighbors in from the Cold 3 (2010).

[19] Frederick Melo, With Business Mostly Grounded, Growler Magazine Entrepreneur Cuts Firewood for Homeless, St. Paul Pioneer Press (Feb. 15, 2021, 5:00 AM), https://www.twincities.com/2021/02/15/with-business-mostly-grounded-growler-magazine-beer-dabbler-entrepreneur-cuts-firewood-for-homeless/ [https://perma.cc/JHL2-SU2A].

[20] See Jerzy Romaszko, Iwona Cymes, Ewa Dragańska, Robert Kuchta & Katarzyna Glińska-Lewczuk, Mortality Among the Homeless: Causes and Meteorological Relationships, 12 PLOS ONE , no. 12, Dec. 21, 2017.

[21] See Minn. Stat. § 504B.155 (2020) (criminalizing “a tenant who, between November 15 and April 15 . . . vacates a building or any part thereof that contains . . . pipes liable to injury from freezing, without first giving to the landlord three days’ notice.”).

[22] See supra notes 10–12, 17 and accompanying text.

[23] Compare supra note 18–20 and accompanying text, with Tara Cookson, Margaret Diddams, Xochitl Maykovich & Edmund Witter, Seattle Women’s Comm’n & The Hous. Just. Project of the King Cnty. Bar Ass’n, Losing Home: The Human Cost of Eviction in Seattle 60 (2018) (finding that 62.5% of people evicted in Seattle became homeless).

[24] See The Cost of Displacement, Inclusive Action for the City (July 31, 2020), https://www.inclusiveaction.org/blog/cost-of-displacement [https://perma.cc/8DL2-HWKY] (finding that evictions cost families between $7,000 to $11,000).

[25] See Ashley Meeder, Guilty Until Expunged: How Minnesota’s Public Records Policies Needlessly Burden Renters, Minn. L. Rev.: De Novo (Nov. 23, 2020), https://minnesotalawreview.org/2020/11/23/guilty-until-expunged-how-minnesotas-public-records-policies-needlessly-burden-renters/ [https://perma.cc/6X2R-562C].

[26] See Kshama Sawant, Reply to Mayor Durkan’s Letter RE: Winter Evictions, Seattle.gov: Kshama Sawant (Feb. 6, 2020), https://sawant.seattle.gov/reply-to-mayor-durkans-letter-re-winter-evictions/ [https://perma.cc/XVG2-MTGT] (suggesting that a moratorium might encourage tenants to “work out agreements with their landlord or access rental assistance programs.”).

[27] Compare Stephen Averill Sherman & Carlos Villegas, Update: Evictions Cost Harris County Over $240 Million a Year — That Was Before COVID-19, Rice Univ.: Kinder Inst. for Urb. Rsch. (Sept. 16, 2020), https://kinder.rice.edu/urbanedge/2020/09/16/evictions-cost-harris-county-over-315-million-each-year-housing-crisis-COVID-19 [https://perma.cc/QVL6-HAT2] (finding that 35,335 evictions cost Harris County’s public and private sector entities $241.4 million), with supra note 11 and accompanying text.

[28] Compare supra notes 24–27 and accompanying text, with supra note 12 and accompanying text.

[29] See supra note 9 and accompanying text.

[30] 73% of Minneapolis eviction cases close “within 14 days of filing,” and two-thirds result in tenant displacement. See Thiel, supra note 12, at 7, 21.

[31] See Judgments, Minn. Jud. Branch, https://mncourts.gov/Help-Topics/Judgments.aspx [https://perma.cc/2K5U-LY5A] (last visited Feb. 21, 2021).

[32] See Liz Wolf, Twin Cities Apartment Development on a Tear, RE J. (Jan. 23, 2020), https://rejournals.com/twin-cities-apartment-development-on-a-tear/ [https://perma.cc/C3RM-VL2A].

[33] Since COVID-related eviction moratoria took effect, only 1.6% fewer renters are making their full payment by end-of-month. See NMHC Rent Payment Tracker, Nat’l Multifamily Hous. Council, https://www.nmhc.org/research-insight/nmhc-rent-payment-tracker/ [https://perma.cc/4PES-9YPS] (last visited Feb. 20, 2021).

[34] Only 369 of 23,362 Minneapolis landlords held more than four rental licenses. See Active Rental Licenses, Open Minneapolis, https://opendata.minneapolismn.gov/datasets/active-rental-licenses/data [https://perma.cc/4XGS-KFYP] (last visited Mar. 2, 2020). If Seattle’s “ownership interest” standard was used, that number would likely increase. Over 850 business entities hold at least one rental license, and many of them likely share common ownership. Id.

[35] See supra notes 6–8 and accompanying text.

[36] Rental Hous. Ass’n v. City of Seattle, No. 20‑2‑13969-6, slip op. at 20 (Wash. Super. Ct. Feb. 24, 2020).

[37] See generally About Us, Rental Hous. Ass’n of Wash., https://www.rhawa.org/about-rhawa [https://perma.cc/RUR2-HH36].

[38] Rental Hous. Ass’n, slip op. at 10, 12, 14, 15, 18.

[39] Compare id., with Fletcher Props., Inc. v. City of Minneapolis, 947 N.W.2d 1, 19 (Minn. 2020), and State v. Rey, 905 N.W.2d 490, 493–94 (Minn. 2018), and Jennissen v. City of Bloomington, 938 N.W.2d 808, 816 (Minn. 2020), and Minn. Sands, LLC v. Cty. of Winona, 940 N.W.2d 183, 200 (Minn. 2020).

[40] Rental Hous. Ass’n, slip op. at 20.

[41] Id., slip op. at 8.