By Mark Zinman | Zona Law
Prior to the pandemic, the federal government rarely, if ever, delved into landlord-tenant matters. A pandemic, a few different eviction moratoria, and a housing shortage with increasing rents have changed that scenario. Now, landlord-tenant matters are being discussed on a national level, and action by the federal government is being contemplated. This will be a contested issue because, historically, landlord-tenant matters have been a state’s rights issue. To further complicate this, we also have situations where the executive branch is taking action, and therefore it’s also an issue of the separation of powers.
It’s only March, and already this year, we have seen two important publications/memorandums on a national level. First, the White House published a blueprint for potential renter protections they would like to see and the activity they would like to see federal agencies take based on existing federal law. Second, Freddie Mac (technically a private company, though handling government loans) published information about tenant protections in the states.
The White House published a memorandum entitled “Blueprint for a Renter’s Bill of Rights” (“Blueprint”). While the Blueprint does not create any new law, it does set forth certain actions that federal agencies intend to take regarding landlord-tenant matters. This Blueprint makes it clear that all federal agencies will take an aggressive approach to enforce any and all laws which may protect residents. They will also look for new ways to protect residents.
Also, the Blueprint contains ideas that the White House would like to see implemented, even though the White House doesn’t itself have the authority to create as a law. For example, in the Blueprint, it becomes clear that the White House would want to make Source of Income a protected class under the federal Fair Housing Act. While the White House can’t actually make it a protected class, as that requires legislative action, the White House can promote the idea. Further, the White House appears to be pushing federal agencies to enforce such policies over landlords where they have the authority to do so.
Similarly, it seems that the White House would support a federal law on rent control. While it doesn’t have the power to make this law, it can promote the idea. The Blueprint is broken into 5 categories: Safe, Quality, Accessible, and Affordable Housing; Clear and Fair Leases; Education, Enforcement, and Enhancement of Renter Rights; The Right to Organize; and Eviction Prevention, Diversion, and Relief.
Second, in February, Freddie Mac published “A National Survey of Tenant Protections Under State Landlord Tenant Acts.” Freddie Mac analyzed and cataloged the various rights that tenants have in the states and created a spreadsheet of such matters. While at first glance, a reader may think this is just a compilation of data, and nothing more, this may be a bit naive. The topics that Freddie Mac analyzed are telling of what the executive branch wants the states to focus on and what issues they would like to see changed. For example, they analyzed these topics: tenant screening; rent, lay payments, and security deposits; habitability and retaliation; pre-eviction protections including notice; eviction fees right to counsel, and eviction diversion programs. We believe that further federal action regarding these areas is coming, whether from federal agencies investigating property owners to the White House seeking the legislature to pass new laws. Keep your head on a swivel as things are changing fast and we are in for a ride.