By Joseph William Singer
The COVID-19 pandemic has brought to light longstanding problems in housing law. This sudden emergency has exposed systemic deficiencies in our property law system. Those flaws have long left human beings vulnerable to deprivation and hardship, but now they leave millions more people susceptible to imminent catastrophic decline in their economic wellbeing. Worse still, these systemic problems have placed many people between a rock and a hard place; they must choose to work in conditions likely to make them deathly sick or to stay home without the resources necessary to sustain health or even life. And loss of income threatens our ability to stay in our homes; many face the possibility, in the near future, of eviction or foreclosure. Without a home, we are vulnerable in this time of Covid-19 to severe illness and death. And our homes are at risk partly because so many Americans lack the resources — the wealth — to sustain them in their hour of need. The extreme inequality of wealth we have created over the last several decades has turned out to be life threatening. And worse still, it places people in a position where they pose a risk to others, including loved ones in their own families. Property in a pandemic — or rather, the lack of property in a pandemic — can, quite literally, be a death sentence.
I want to focus on four problems in our housing system that the pandemic has brought to light, and then to suggest solutions to each of them. The first problem is that there is not enough affordable housing. That is partly because there is not enough housing, period — at least in the places where people need housing. But it is also because the cost of housing is beyond the reach of most families, despite the fact that housing is a necessity. The second problem is that wages are too low. Many families cannot pay for basic necessities, much less have a comfortable life. It is important to note that problems one and two are linked. A recent report in June of this year by the National Low-Income Housing Coalition shows that full-time minimum wage workers cannot afford a two-bedroom apartment anywhere in the United States, and they cannot afford even a one-bedroom apartment in 95% of US counties.[1]
The third problem is that, during the twentieth century, both the federal and state governments enacted laws that denied access to adequate wages and affordable housing for African Americans. Richard Rothstein’s 2017 book, The Color of Law: A Forgotten History of How Our Government Segregated America, shows the myriad ways that the federal and state governments promoted racial segregation throughout the 19th and 20th centuries, while also adopting policies and laws that restricted access to housing, employment, and public accommodations on account of race. As Rothstein documents, the United States denied minimum wage protections for many African Americans. The states and local governments engaged in exclusionary zoning — and are still doing this. Congress denied African Americans access to federally insured mortgages that were made available to white families. The United States promoted racial segregation in housing by requiring developers to place covenants in deeds that prohibited the sale and occupancy of housing to African Americans. These practices and laws were still in effect at the time of my birth in the middle of the 20th century; these are not matters of ancient history, and some of these laws still exist and still cause harm to racial equity today. These historical and current laws and policies have had huge impacts — not only in the past, but today as well. In fact, they go a long way to explaining current racial disparities in wealth and income. Racial disparities in economic security did not just happen; we made them happen by the laws that we enacted. And by “we” I mean those who voted for representatives who legislated on behalf of the interests of white people while deliberately denying those same protections to Black people.
The fourth problem is that evictions are too common, and they often deprive tenants of housing when they have a legal right to remain under existing property law doctrines. In normal times, evictions impose huge economic and social costs on both landlords and tenants.[2] In the midst of COVID-19, evictions will certainly lead to the spread of the disease; we are most safe when we shelter in place, but that requires us to have a home. It is a real possibility that, for some number of human beings, eviction in the midst of a pandemic is a death sentence. And because those who are evicted will go somewhere, and will not have stable housing, that increases the risk of spreading COVID-19. Mass evictions at this moment are a public nuisance under longstanding legal definitions of that term.
What are the possible solutions to these four problems?
First, and most importantly, we must think about our housing issues by paying attention to the real world rather than our imagined images of what our property system is and how it is working. This is true for each of us, regardless of our political leanings or our moral values. We may imagine, for example, that our current system allows people to take care of themselves, if they only work hard and follow the rules. But if, in reality, people are suffering hardship through no fault of their own, even when they work hard and follow the rules, then it is incumbent on us to recognize the truth of our situation and theirs. Our values and our norms give us a basis for setting up legal rules and public policies that we imagine further those values and norms, but if those rules and policies work differently than we expect, we have a moral obligation to learn from our mistakes. If our goal is to set up a system that works for people, we must pay attention to whether it is, in fact, working. This requires us to accept a certain amount of humility and to understand that we make mistakes, that we do not know everything, and that if our goal is to help people exercise freedom and obtain their goals in life, that means we have an obligation to pay attention when the rules we enacted are failing to achieve our goals and thus need to be changed.
Second, we should recognize that racial disparities in the US are not the result of “market forces” but are the direct result of government policy. We need to stop being content with policies that appear neutral in the abstract. We need laws that will actually redress the racial imbalances that are the legacy of past and present government practices and laws. That means measuring laws and policies by their impacts on redressing racial inequalities in income and wealth that are inconsistent with our basic norms of liberty and equality under the law.
Third, we should raise both the minimum wage and the Earned Income Tax Credit (EITC), and we should also tie them to the local cost of living. We should ensure they are set at levels that make it realistically possible for people to pay for the goods and services that make life comfortable, and that includes housing, food, and medical care, among other things. We should adjust minimum wages and the EITC automatically so that they continue to enable people to live in dignity when prices rise, and so that they prevent employers from exploiting employees by benefiting from their labor but not paying them what they need to earn continue to provide the services that employers need.
Fourth, we should reform our caretaking economy. Those who care for children and the elderly often perform these services without any financial remuneration or help. And those who do this for a living do not earn enough. We need to ensure that caretakers and those they care for are healthy, happy, and able to live with dignity. I believe we should have federal funding for these basic services since the marketplace has proved incapable of ensuring that those who are caring for others have the economic wherewithal to do so. It is especially obvious that these caretaking obligations fall most heavily on women, and so COVID-19 promises to reinforce gender inequalities in wealth and income.[3] We need laws that will recognize and fix these problems of gender inequity and family hardship.
Fifth, we should fully fund Section 8 housing vouchers. Roughly 75% of people who qualify for §8 housing vouchers cannot get them.[4] And we should pass a federal law that prohibits landlords from discriminating against housing voucher recipients. Some states, like Massachusetts, have such laws, but many do not. A housing voucher is no help if no one will rent to you.
Sixth, we should reform zoning laws so that towns can no longer exclude affordable housing. We should prohibit towns from passing zoning laws that do not allow multifamily housing to be built anywhere in the municipality. And we should repeal the new regulation from the Trump Administration that takes the teeth out of the obligation in the 1968 Fair Housing Act that requires municipalities to act to affirmatively further fair housing. The prior regulation passed by the Obama Administration was more faithful to the text and purpose of the Fair Housing Act and we should go back to that earlier regulation.
Seventh, we should reform eviction laws and mortgage laws. We should make sure that every tenant is represented by a competent lawyer. We should mandate mediation before eviction, and evictions should be tied to government services that ensure that tenants who are evicted do not become homeless. We should better regulate installment land contracts that do not have the legal protections granted to tenants or those who have mortgages, and which are disproportionately used by Black and Latino home buyers.
Eighth, we should take a systemic approach to housing protection in the midst of this pandemic. We cannot look at this housing problem only from the perspective of tenants or homeowners facing foreclosure or banks. Each of these actors must be able to function and to provide the services we need from them. Most landlords of poor tenants are also poor and don’t have sufficient resources to pay for repairs. And no rent money for those landlords means they can lose their property to foreclosure, and that means loss of affordable housing that will not be replaced, decreasing the stock of affordable housing even further. We did this for a few months when the pandemic first hit, but the Senate and President Trump blocked further funding. We are at sea in a rowboat without a paddle, and the boat is not even seaworthy. We are about to sink, and sink together, if nothing is done and done soon.
Of course, the effects of this disaster are not — and will not — be evenly felt. Some are weathering it tolerably, if with a large dose of melancholy and isolation from loved ones, as well as grief for those friends and family members we have lost. Others — especially those in historically marginalized groups often defined by race — are in desperate straits. We should consider whether we would be better off as a society if we simply paid wages, rents, and mortgages for those who cannot pay them because they have lost their source of income during this pandemic, rather than allowing millions of people to be evicted and millions of businesses to fail and then pick ourselves up afterwards. The costs of income support during a time of disaster may be less than the costs of the displacement and disruption that will come from eviction and bankruptcy. If we were interested in nothing but economics, we might find that it would be less costly to pay everyone’s rent for two years then it would be to allow people to be evicted and then clean up the mess afterwards.
Finally, a personal reflection: we should remember that we are all created in the image of God. We are entitled to a life of dignity and comfort. That means that we must remember that our actions affect others; wearing a mask is partly about protecting ourselves but mainly about protecting others who have a right not to be subjected to a life-threatening illness because we have decided to ignore their right to life. We are, each of us, vulnerable, and we are one step away from personal catastrophe. We must remember to see other people as human beings like ourselves. We must see ourselves in others and remember the lessons that our parents and religious leaders have long taught us. Do not do to others what you would not want done to yourself. This old moral imperative requires us to realign our perception of the times we are now facing. We will be OK only if others are also OK. Our economy can work only if everyone can work. Our safety is assured only if the safety of others is assured. Too many lives have been lost, and too many more will be lost if we do not take care to adopt policies that recognize our shared vulnerability and our shared desert for mutual aid and laws that set minimum standards for our property system to ensure that we have homes where we can weather the storm and protect those we love as well as our fellow human beings.
We need a new way to think about economic distress. Others are in difficulty not because of private failings, but because of defects in our system. There but for the grace of God go we. Distress from lack of housing or resources needed to sustain life could happen to any of us. And because of that, we should care about each other. When we go to religious services, we hear about caring for the stranger and the sick and the orphan. In the midst of a pandemic, we must remember those lessons. We are in this together. COVID-19 has exposed the cracks in our economic and legal system; our access to food and housing is more tenuous than we may have thought. Enacting policies and law reforms to ensure access to the things we need to survive and to have a comfortable life are not only good economics, but a moral necessity.
[1] https://www.cnbc.com/2020/07/14/minimum-wage-workers-cannot-afford-rent-in-any-us-state.html.
[2] Matthew Desmond, Evicted: Property and Profit in the American City (2016).
[3] Jessica Grose, “Mothers Are the ‘Shock Absorbers’ of Our Society,” N.Y. Times, Oct. 14, 2020, https://www.nytimes.com/2020/10/14/parenting/working-moms-job-loss-coronavirus.html?referringSource=articleShare.
[4] Erika Poethig, “One in Four America’s Housing Assistance Lottery,” Urban Institute (May 28, 2014), https://www.urban.org/urban-wire/one-four-americas-housing-assistance-lottery.
Joseph William Singer is the Bussey Professor of Law at Harvard Law School.
This post was originally published on the COVID-19 and the Law blog.
