From left, Fresno City Councilmembers Nelson Esparza and Tyler Maxwell introduce the residential Eviction Protection Program in May 2021. Photo by Edward Smith

The discussion of rent and eviction protection rose to the forefront of politics as Covid precautions inserted government at every level to mediate between tenants and landlords.

In January, the White House published a blueprint for its Renters Bill of Rights. The 19-page document outlines the administration’s views on the responsibilities landlords have toward their tenants.

While an attorney for tenants says having a uniform code predictable for renters is a good thing, an attorney for landlords says it’s a case of the federal government misunderstanding the problem and putting its nose where it doesn’t belong.

Nationwide, 35% of the U.S. population lives in rental housing, totaling 44 million households. Across Fresno, Tulare, Kings and Madera counties, it’s even higher with 42.5% of the population renting, according to a study by the Public Policy Institute of California.

In 2019, nearly one quarter of renters spent at least half of their money on rent. In the last three years, affordability has only gotten worse, with rents rising 26% nationally during the pandemic, the report stated.

Eviction rates in the Central Valley and Inland Empire prior to the pandemic were among the highest in the state, according to the Public Policy Institute of California. In 2019, there were 25 filings per 1,000 residents. After the pandemic, that rate dropped to eight per 1,000 residents, due in no small part to eviction moratoria.

Creating clear lease terms is one of the goals of the White House. The document stated that problematic provisions had arisen as more lease documents were taken from the internet.

Lead housing attorney for Central California Legal Services Robert Cortez says he likes the idea of having clear leases, but he feels the requirements go far enough. Landlords still have the power when it comes to who can live in their property and leases are “take-it-or-leave-it,” Cortez said. Leases contain anywhere from 20 to 70 provisions tenants must uphold.

What he would like to see is a more negotiating type of agreement, especially when it comes to the rules of conduct on the lease.

One common provision Cortez sees being abused are those around disturbing other tenants. That can be interpreted many ways. Rules against repairing a car in an apartment complex may be buried in a lease and then be used against a tenant when they don’t expect it.

Cortez estimates 25-30% of eviction cases have something to do with alleged conduct. With rents as high as they are and with vacancy rates as low as they are, there is incentive for landlords to evict. “In this market, it’s very rare to have a unit vacant for more than a month,” Cortez said.

Getting an eviction means a landlord can charge market rate instead of being limited by the law. When selling a property, it may be more enticing to a buyer to not have tenants protected by lease.

But eviction processes are long and costly procedures, says Fresno attorney Steven Hrdlicka, who represents hundreds of property owners. And the people that live in an apartment have certain expectations.

Landlords have the right to put in the lease whatever they want, Hrdlicka says. “It’s a very competitive market and if the landlord asks for something inappropriate, the tenant has the opportunity to find something else,” Hrdlicka said.

Before the City of Fresno instituted a blanket smoking ban on rental properties, landlords had the choice. The same for pets. Some landlords may have had bad experiences with pets while others see allowing pets makes for good business.

The Biden administration is also acting on background checks. Through the Consumer Financial Protection Bureau, the executive branch hopes to establish “best practices” when it comes to rental applications, such as landlords telling tenants why an application was denied or giving them the opportunity to explain issues from their past. While discriminating based on income “is not expressly prohibited,” the document states it will work with agencies to “reduce such discrimination going forward,” especially when it come to the Low Income Housing Tax Credit.

One issue Hrdlicka has seen in the past is over counting alimony and child support as income. Right now, landlords can evaluate those sources of income on their own.

The same goes for criminal background checks. Landlords have a lot of leeway to decide if a tenant will pose a threat to other tenants. Establishing standards may change that.

The document also says eviction cases should be sealed, “reducing the chance for people to be locked out of future housing opportunities without a chance to defend themselves.”

The Bill of Rights also wants to institute some degree of eviction protection. Alternatives including mediation are preferred. The document suggests grace periods for late rent, justification for evictions and advance notice when a lease isn’t being renewed.

Landlords see mediation as a delay tactic, says Hrdlicka. Most eviction cases are about nonpayment of rent. Tenants know they owe rent, says Hrdlicka, and mandating mediation means delaying getting payment for their properties.

The State of California has also effectively ended wage garnishment by making it illegal to take money from people making less than $87,000 a year, said Hrdlicka. Almost 100% of eviction cases are for people making less than that amount.

For reasons of nonpayment, Cortez doesn’t see mediation solving very much. Payment plans can be developed, but if back rent is especially high, mediation won’t satisfy what a landlord is owed.

Where it can help is with conduct-related cases, says Cortez. Cortez had a client who was screaming at the top of their lungs at midnight. The problem was there was mix-up at the pharmacy and the tenant couldn’t get their medication.

Under mediation, there could have been a compromise where the tenant agreed to resume her medication and they can see if that behavior continues.

The problem, however, is that by the time Cortez gets involved in cases like these, that means the court is also involved. That means landlords have already taken on costs that are likely not going to be reimbursed, so Cortez can see how a landlord may not agree to these terms simply because of the cost they have already incurred. This case is still being decided.

Federal Housing and Urban Development will also make available $20 million for tenant legal representation this fiscal year.

The City of Fresno instituted its own legal representation fund for tenants following Covid protections. Fresno City Council President Tyler Maxwell said the Eviction Protection Program was “wildly successful” in its first year.

The City went through the $750,000 it had designated for both rental assistance and subsidized attorney fees quickly.

The Fresno City Council allocated twice that amount from the general fund for fiscal year 2023.

To date, 975 tenants have been referred to outside counsel through the program, according to Christina Roberson, assistant Fresno city attorney.

Tenant representation goes beyond unlawful detainers. It also helps tenants get evictions off their records, making it easier to be accepted for housing. It has also helped tenants and landlords negotiate terms to keep tenants in place, said Maxwell.

Hrdlicka said for landlords, being taxpayers, they are essentially paying to provide representation against themselves.

Having a uniform code for renters means people can move from place to place and have a reasonable expectation of the terms by which they can live somewhere, says Cortez. Currently, the patchwork of different laws makes it hard to predict what a person can and can’t do.

“It’s not reasonable to expect the layperson to be completely cognizant or aware that simply moving ten miles will have drastically different circumstances on their tenancy,” Cortez said.

Conversely, the federal government’s attempts to prevent homelessness have come at the cost of landlords’ rights, Hrdlicka said.

“The title might be in my name, but the government has become the landlord,” Hrdlicka said.