Is Richmond America’s Eviction Capital?
As an attorney who represents landlords in Richmond, Virginia, it was with no great satisfaction that I pulled up the New York Times this morning to read the expose-styled article focusing on my hometown as a leader in the number of evictions performed annually.[1] The once-capital of the Confederacy is now the capital of evictions, or so it read. I am a native Richmonder before I am a lawyer and this is not the kind of attention I want for my city.
However it is hard to read an article such as this, which pulls heavily from Matthew Desmond’s “Evicted,” without indulging my inner advocate. The first point of clarification that cannot be understated is that an “eviction judgment” as it is called by the article, is not an eviction. The case is called an “unlawful detainer” and is styled as “an action for eviction” that may or may not result in an actual eviction (as discussed below). Nonetheless, the graphic posted by the Times cites that there were “5,803 eviction judgments” in Richmond in 2016. Again, does that mean there were 5,803 evictions performed in Richmond that year? No. It means that the Court would have issued 5,803 “judgments for possession” from the unlawful detainer action; the actual eviction to remove the tenants from their homes would not have occurred until a separate writ of eviction was filed. It would be wrong therefore to assert that the eviction filing rate in Richmond in 2016 was 30.9% if measuring the filings of unlawful detainers alone. No, we didn’t throw almost of third of Richmond tenants out on the street in 2016. How many actual evictions were performed? I don’t know and the article does not say.
The reason for this clarification is not academic. The Times did mention the common practice of accepting rent after a judgment but suggested this arrangement only occurred before the Sheriff shows up for the eviction. If you ask many of the landlords or property managers in Richmond, you will find that a good number of tenants have multiple judgments against them for failure to pay rent yet they have not been evicted. Look deeper and you will find that landlords are often crafting alternate payment plans on the fly to keep their tenants in the properties. In fact, it has become common practice among local judges, after awarding the judgment of possession to the landlord, to encourage tenants to go out into the hall and speak with the attorney or a property manager to work out arrangements so that the tenant may stay in the property.
The other distortion in the article is to suggest that the legal process is designed in a way that will not “allow you any opportunity to make a mistake,” or is weighted against tenants. In support of that claim, the article cited an example a tenant’s inability to be heard by the Court because she was not able to bring her cell phone into court and had to take time to hide it near a trash can before entering. Quoted also was a Central Virginia Legal Aid Society lawyer for the notion that the system “works on default judgments and people not showing up.”
If you practice law in the Richmond metro area, you know that the Courts are highly diligent in ensuring that all litigants have their day in court; a litigant that shows up 10 or 20 minutes late can either get a case recalled or may file a motion to rehear with cause. In my experience, and so long as there is a valid defense to the case, those motions are often granted. And yes, the system would bog down if every case were set for trial as suggested by Legal Aid but that does not mean it is the reason why those cases are not set for trial. If cases are resolved with a default judgment or without a trial it is oftentimes because a) the tenants agree they owe the rent and do not want to take time off from work to be told a judgment will be entered against them, or b) the tenants have already made arrangements to pay arrears and stay in the property after the court date, or c) they show up for court and are unable to state a valid defense to justify placing the matter on a trial docket. The Times states that a tenant “lacks some tenant rights available in other states” and cites the inability for the tenant to deduct repair costs from rent. What the Times did not state is that the Virginia Residential Landlord Tenant Act (VRLTA), allows tenants to pay rent into the court pending resolution of the tenant’s complaint concerning property conditions.[2] In those actions (known as “tenant’s assertions”), the landlord must cure any such conditions deemed by the court to be a material non-compliance under the lease.[3] The remedies at the court’s disposal include terminating the lease, ordering moneys deposited in escrow to be released to the tenant, or ordering an abatement of rent in an amount the court deems to be equitable.[4] In my experience the court’s oversight is an integral part in getting to a swift and definite resolution of the matter. Isn’t that better than forcing the tenant to make the repairs and deduct the rent? Surely a voluntary rent deduction by the tenant invites a dispute from the landlord.
In support of the claim that Virginia’s tenant protections fall behind those of other states, the Times links to the Policy Surveillance Program which acknowledges Virginia’s adoption of the Uniform Residential Landlord Tenant Act (through the VRLTA) along with the 50 other jurisdictions. The Times also suggests that Virginia is lacking because there is no “ensured access to legal aid,” however the courts conduct tenant’s assertion and unlawful detainer hearings in a manner that affords tenants a great amount of latitude in prosecuting or defending their cases. This leveling of the playing field greatly reduces the need for legal aid counsel. Nonetheless, litigants in the metro area find assistance at Central Virginia Legal Aid Society, the Virginia Poverty Law Center, the Legal Aid Justice Center or at a number of pro bono programs through private law firms. Sufficed to say, every litigant in the Commonwealth of Virginia has access to due process in an unlawful detainer proceeding.
To be clear, if Richmond’s actual eviction rate is the second-highest in the country it is absolutely something we need to fix. Although I am usually on the landlord side of the caption I also know that my job, all of our jobs depend on a healthy economy; the high eviction rate is a symptom of an illness that the Times article skirts around – and that is poverty. And so it is irresponsible on the one hand to identify the real problem as poverty and on the other hand to suggest that the solution is to change the landlord-tenant laws. Equally frustrating (and baffling) is the unqualified statement closing the article that “[a]s a societal way of renting housing, this doesn’t work.” What does that mean? Are landlords to blame for poverty? If we rent in a different way to poor citizens will we cure poverty? If so, what will that look like? Do we mandate rent caps similar to those in HUD subsidized housing as the article suggests? Do we allow more defaults before ordering possession? Will landlords survive that process? How will that affect the quality and quantity of housing in Richmond? I fear that articles like these will fan flames to enact laws that look and smell good but are completely lacking in potency.
The Times quoted the Richmond mayor Lavar Stoney as saying the problem (assuming he meant poverty) isn’t by happenstance. He is right. The problem of inner-city poverty in Richmond goes back decades. However painting a very complex issue with such broad strokes and fingering “the system” as the cause will not be enough to fix the problem. Nor will it help to spend an inordinate amount of time framing the issue only as the tenant being victimized by the bottom-line, unaffected landlord. The job of a property manager or landlord is a stressful, often thankless 24-7 engagement which involves dealing with hundreds of tenants at a time – and which involves tending to all of the complaints and grievances from tenants who are not always polite. Landlords do not profit by evicting tenants, they profit and survive by keeping them. Logic suggests that they too, want to be involved in the discussion of how to fix the cycle of poverty.
I’m headed now to purchase Mr. Desmond’s book, “Evicted” to enhance my understanding of the issue. But as every crisis, every discussion deserves accuracy and a comprehensive treatment of facts, I trust that we will move forward in that light and not in a manner aimed purely at kindling emotions or increasing readership.
[1] The article cites statistics that identifies Richmond as second only to North Charleston, SC in evictions in 2016.
[2] Va. Code Ann. § 55-248.27.
[3] Although the subject in the Times article stated she was not able to state her grievances about the condition of her home, the article did not reveal whether or not she had filed a tenant’s assertion.
[4] See Va. Code Ann. § 55-248.27(D).