Eviction ban is disappearing

Supreme Court to slowly lift the stay, an ‘imperfect remedy’ to a systemic problem 

By: - Wednesday January 12, 2022 6:00 am

Eviction ban is disappearing

Supreme Court to slowly lift the stay, an ‘imperfect remedy’ to a systemic problem 

By: - 6:00 am

Demonstrators calling for an end to evictions and rent debt listen to a speaker talk through the struggles of living without shelter in Albuquerque. Organizers from the Party for Socialism and Liberation put together an overnight camp-in about housing rights outside the Metropolitan Court in Downtown Albuquerque on Sept. 24. (Photo by Marisa Demarco / Source NM)

Demonstrators calling for an end to evictions and rent debt listen to a speaker talk through the struggles of living without shelter in Albuquerque. Organizers from the Party for Socialism and Liberation put together an overnight camp-in about housing rights outside the Metropolitan Court in Downtown Albuquerque on Sept. 24. (Photo by Marisa Demarco / Source NM)

The Supreme Court last week announced the beginning of the end of the state’s eviction ban, one that has kept many New Mexicans housed amid a pandemic that destroyed the economy and killed thousands here.

The court’s new order creating the Eviction Prevention and Diversion Program will take effect statewide in March. It will replace the court-imposed stay on evictions for non-payment of rent that was issued March 24, 2020. 

At the time, officials feared a flood of evictees who lost their jobs due to the pandemic would be forced into shelters or other congregate living spaces, just as the coronavirus began to spread.

The court’s new 11-page order will allow eviction cases for lack of payment to proceed, but it adds some new protections for tenants, like requiring that they’re informed of available resources after an eviction case is filed. It also delays eviction orders if landlords and tenants agree to come to terms that would keep the tenant housed and pay the landlord backrent via emergency rent assistance. 

But it continues to allow landlords to have the upper hand in eviction proceedings and doesn’t provide tenants any new leverage, said Serge Martinez, a law professor at the University of New Mexico and tenant advocate. And it doesn’t solve systemic problems that fuel the eviction machine in New Mexico. 

Shadow evictions

“This may make it a little bit harder for landlords to evict tenants, but it doesn’t alleviate what is still the core problem with landlord-tenant law in New Mexico,” he said, “which is that the landlord has almost no incentive to stop the process or to try to talk to the tenant.”

Barry Massey, a spokesperson for the state Administrative Office of the Courts, said the new program was devised with input from tenant rights’ lawyers, advocates for property owners and state officials in charge of rent assistance money. He also said the court agreed it was an “appropriate time” to implement the program due the availability of rental assistance money and an improving job market.

The justices were not available to discuss the new order this week due to oral arguments on unrelated cases, Massey said, but they have previously described the new program as a way to keep tenants housed and make landlords whole. 

“The goal is to negotiate a settlement acceptable to property owners and renters, allowing people to remain in their homes while fairly compensating the property owners through emergency rental assistance,” Chief Justice Michael Vigil said Jan. 4 in a news release announcing the changes.

Evictions for non-payment will proceed beginning in the Ninth Judicial District (Curry and Roosevelt counties) beginning Feb. 1, then the rest of the state sometime in March. Read the new order here

The new process gives landlords and the tenants they’re trying to evict the choice to enroll in the diversion program. If they agree, the judge delays the hearing for 60 days and gives both parties time to come to an agreement. Both parties are given information about the $170 million Emergency Rental Assistance Program, which pays landlords rent owed on behalf of tenants. 

But Martinez questioned why any landlord would find it valuable to wait 60 more days to evict their tenant for non-payment. Most or all, by this point, know about the rent assistance program, he said, and many of them will have in their hands a signed eviction order, one that was suspended during the stay but now would likely be re-issued. 

Many landlords also refuse the rental assistance — which they’re allowed to do by law — because a hot rental market makes it more valuable for them to evict their current tenant and find a new one at higher rent. 

Landlords refuse emergency rent money and Section 8 vouchers

That said, Martinez said he likes certain features of the new order, like the requirement that tenants be informed of their rights when an eviction is filed. It also allows tenants for the first time to request that the proceeding in magistrate or metropolitan court be documented, which can help with future legal defenses or the tabulation of eviction statistics statewide. Numbers on evictions in New Mexico have been notoriously difficult to come by, advocates say.

And, Martinez said, he most appreciates the court’s willingness to “take the bull by the horns” and implement the stay on evictions in the first place. It was always unusual that the courts, not the state Legislature, would be in charge of creating and fine-tuning a policy to prevent evictions, he said. In many other states, governors issued executive orders or legislatures passed finely crafted laws that spelled out different protections for tenants. 

But in New Mexico, where a volunteer Legislature meets for just 30 or 60 days at the beginning of the year, it was left to the court to come up with a quick solution, one justices likely thought temporary 661 days ago, Martinez said. 

“It was always an imperfect remedy. And it’s the kind of thing where it was a good stopgap, but should have been the Legislature was the right place to do it,” he said. “If we’d had a Legislature that was in session, they could have reacted in a different way, and then fine-tuned it.”

The new order is also being phased in at one district a month before it takes effect statewide, which advocates say is a good way to determine any flaws before they result in an eviction disaster. 

Beginning Feb. 1, the order will apply only in the Ninth Judicial District, which covers Curry and Roosevelt Counties. It will take place statewide at an unspecified date in March, according to the order. 

Brie Sillery, a spokesperson for the New Mexico Coalition to End Homelessness, said she’s not sure if now is the appropriate time to end the eviction ban, with high case counts due to the omicron variant, rising homelessness and an uneven economic recovery. 

She said she also would have preferred perhaps that the court wait until after the upcoming legislative session to see if the lawmakers approve additional protections for tenants trying to scrape together rent as the pandemic reaches its second year.

“I think that that would have been maybe a little more strategic,” Sillery said. “But it could also really provide the pressure as well, because we need this legislation in the long term for long-standing change.”

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Patrick Lohmann
Patrick Lohmann

Patrick Lohmann has been a reporter since 2007, when he wrote stories for $15 apiece at a now-defunct tabloid in Gallup, his hometown. Since then, he's worked at UNM's Daily Lobo, the Albuquerque Journal and the Syracuse Post-Standard. Along the way, he's won several state and national awards for his reporting, including for an exposé on a cult-like Alcoholics Anonymous group and a feature on an Upstate New York militia member who died of COVID-19. He's thrilled to be back home in New Mexico, where he works to tell stories that resonate and make an impact.

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