Evictions May Not be the Answer Anymore

I am in the process of refinancing a duplex, and an appraiser will need access to the apartments in the building.  Tenants in one unit refuse to grant access due to COVID.  Is there anything I can do to get the appraiser in?

This question highlights a tremendous transformation in our housing industry that was festering for years but now has exploded during the COVID crisis.  The profound change can be summarized as follows:  No more should property owners rely upon the eviction processes as a way to govern tenancies and to solve management problems.  Those days are probably gone for good.  Had this question been posed before 2020, the answer might have been as follows:  Warn the tenants that denial of access for lawfully permitted entries is a basis to terminate the tenancy; should this admonition be ignored, then contact your legal counsel to initiate court proceedings to terminate the tenancy, as the failure to grant properly noticed access is a recognized just cause reason to terminate a residential tenancy.  Well, times have certainly changed.

For starters, the onset of the pandemic brought about local, statewide, and even federally sponsored bans on most types of evictions.  The current local moratorium runs through June 30, 2021, but, as discussed below, that ban may extend well beyond the stated expiration date.  So for the past year, almost no forced housing displacements have occurred, save for the narrow exceptions to address violence or health and safety emergencies.  In other words, the tenant’s conduct must be so harmful to other building residents that law enforcement, for the good of the public, must act to restore possession to the owner provided there is a court judgment specifically directing this measure.  Otherwise, for the first time in over a century, housing providers and their tenants have been forced to work through disputes outside of eviction litigation.  And guess what?  The world has not ended.

Hopefully by July of this year, with regard to tenants who fail to pay post-June rent, or in instances where they do not qualify for COVID relief for unpaid rent during the March 2020 through June 2021 period, housing providers will be able to recover possession of their units.  Owners exiting the rental business under the Ellis Act may also be able to continue with their endeavors.  And certainly tenants acting violently or engaging in conduct that jeopardizes the health and safety of others will be removed.  But what about evictions for denial of access, breach of lease covenants, condominium conversions, refusal to execute renewal agreements, or owner/relative move-ins?  Do we really believe that those allowances will continue in the new world?

Maybe, but maybe not.  In this author’s humble opinion, the days of permanently displacing residents for reasons outside of a refusal to pay rent, the commission of egregious conduct, or for very limited change-in-use allowances are numbered.  Lawmakers are already actively and seriously contemplating this legislative agenda.  Indeed, we have been moving in that direction for a long, long time.  The pandemic simply accelerated what has been slowly happening for decades.  Accordingly, the golden advice for the new decade is as follows:  Find better, more creative ways to work out your problems with tenants.  In the case presented here, offer to pay for a short hotel stay or ask them to allow a virtual tour of the interior.  Resorting to legal processes is no longer a realistic default course of action.  Rather, embrace a reality where we all have to learn to meaningfully get along with each other.  

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