Could diversion programs be the answer for Virginia’s high eviction rates?

When it comes to addressing high eviction rates in Virginia, early talks indicate there’s limited common ground between tenant advocates and the apartment industry.

A proposal to give tenants 14 days instead of five to pay rent before their landlord can sue to evict them?

Firmly opposed, said Patrick McCloud, executive director of the Virginia Apartment Management Association.

“Everyone knows when they sign their lease what day the rent is due,” he said.

Give tenants more chances to make an eviction lawsuit go away by paying rent before the court date?

Most landlords already do that informally, McCloud said, positing that writing it into law might actually result in worse outcomes for tenants.

To the advocates who proposed the changes to state code, the benefits are obvious. Giving tenants more time and more chances to pay rent before they can be evicted would logically lead to fewer evictions, representatives of the Virginia Poverty Law Center and the Virginia Legal Aid Society told their fellow members of the State Housing Commission’s eviction workgroup last month.

The commission formed the subgroup after Princeton University’s Eviction Lab released its study of evictions in the U.S. earlier this year, which found six of the top-10-evicting large cities in the country are in Virginia.

The industry, however, has historically held a tight grip on housing law in Virginia, finding strong support among both Democrats and Republicans in the General Assembly, which last year unanimously passed legislation streamlining the eviction process for landlords. While it remains to be seen whether eviction data that shows landlords in Virginia evict tenants at far higher rates than in other states will change that, legislative efforts to make it more difficult for landlords to evict their tenants might face steep odds.

There are, however, some early areas of agreement.

Leaders and advocates in Richmond are in early discussions to develop an eviction diversion program they hope will become a model for the rest of the state.

Richmond became the poster child for high eviction rates when the New York Times profiled the city earlier this year in its reporting on the Eviction Lab’s research, which found the state capital had the second highest eviction rate of any large city in the country.

In the aftermath of the report, Martin Wegbreit, the director of litigation at the Central Virginia Legal Aid Society, said he received two promising phone calls: One from Richmond Mayor Levar Stoney’s office and one from the chief judge of Richmond’s General District Court, where nearly 19,000 eviction lawsuits were filed last year.

One of Stoney’s policy advisors, Osita Iroegbu, said the mayor is still in the process of “assessing what eviction diversion programs and similar initiatives look like in different localities and examining the opportunities we may have to partner with others to strengthen current local efforts and create new ones to effectively tackle this issue.”

Planning is still in its early stages, Wegbreit said, but it would likely be modeled on similar efforts in other states, like Michigan, where Kalamazoo County established a program in 2007 as part of an initiative to reduce homelessness. In the Richmond area, more than 30 percent of homeless residents surveyed last year said they had been served with an eviction lawsuit, according to a recent survey by Homeward, a nonprofit that coordinates services for homeless people.

The program in Kalamazoo assisted 412 households last year, providing a total of $138,426 in rental assistance – an average of $300 to $350 per family, according to a spokesman for the Michigan Department of Health and Human Services. The program drew on existing state funding aimed at reducing homelessness.

Residents facing eviction are notified of the program at the same time they’re served with court papers via a notice stapled to the top of the documents.

The one-time program is geared toward low-income families and individuals who can afford their rent but fell behind after an unexpected financial emergency such as a car crash or medical problem. To qualify, they must demonstrate that they are no more than three months behind in rent and show that they will be able to afford their rent once the assistance ends.

A case worker is in court on days when eviction hearings are being held and is empowered to write a check on the spot. Representatives of the state’s legal aid groups are also on hand to represent and provide advice to tenants who would otherwise not be able to afford a lawyer.

The result is often a settlement that results in the landlord getting paid and spares a negative judgement from appearing on the tenant’s court records, which in many cases makes finding apartments in the future more difficult.

Ceata Bell, a state caseworker who oversees the program, said it quickly overcame initial skepticism among landlords.

“I think initially they were thinking the program was just a way to delay the process and not really help in the long run,” Bell said. “Eventually they came on board and realized it’s a win-win for both parties: Landlords get their rent money and tenants don’t become homeless.”

Variations of the Kalamazoo program have since been adopted around Michigan.

Last year, lawyers and judges in Lansing tested the degree to which providing tenants free legal representation would result in fewer evictions. It did. The study found the number of cases that ended with an eviction dropped from 35 percent to 22 percent.

“If you go in there without a lawyer, it’s not a good idea,” said Brian Gilmore, who directs Michigan State University’s housing law clinic, which provided free legal representation to tenants who participated in the program. “I can tell you it makes a difference.”

The apartment industry in Virginia has expressed openness to an eviction-diversion program that focuses on providing financial help to tenants behind on rent – a perhaps unsurprising stance, given it proposes dedicating funding to making sure landlords get paid rent on time while asking little in the way of concessions on their part.

But the idea of giving tenants facing eviction free lawyers? Not so much.

“There is not a legal defense to not paying your rent,” McCloud said.

McCloud is correct – if a tenant did not pay rent prior to arriving for their court date, there is virtually no way they will win their case. Their only course is to negotiate. He argued money would be better spent on rental assistance funding.

Gilmore agreed that Virginia’s landlord-tenant laws leave tenants with few legal options in an eviction. For instance, in Michigan, tenants can argue they didn’t pay their rent because of a breach of the lease by the landlord if, for instance, major maintenance issues went unaddressed.

In Virginia, tenants only have the right to raise those issues with the court if they are already current on their rent.

“Virginia is still in the past,” Gilmore said. “They go by the old Colonial rules, basically. Until that changes, the state is going to have a tough go.”

And that’s why advocates in Virginia say that, while they’re happy to find common ground with landlords where they can, they will continue fighting for legal reforms.

“The one point about which everyone may be able to agree is that doing nothing is not an option,” Wegbreit, with the Legal Aid Society, said. “To have five of the top ten highest eviction rates among large U.S. cities and three of the top five highest eviction rates among mid-size U.S. cities, and take no corrective action, is not a message Virginia should be sending.”