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DeSantis’ changes to moratorium mean fewer families protected from eviction, foreclosure

The latest order halts only the final step of an eviction for families financially affected by the pandemic. "It's basically a green light to the court," one lawyer said.

Gov. Ron DeSantis’ decision last week to extend the state’s eviction and foreclosure moratorium until Sept. 1 appeared to be a welcome cushion for tenants who have fallen behind on their rent. But for some, sighs of relief may have been premature.

The extension also included changes that lawyers who represent tenants say put more people at risk of losing their homes, exposing some who have been protected since April under the order’s previous version. In the least, they caution the changes could create more confusion in the courts about who is protected.

Under the new order, only renters and single-family homeowners who have been “adversely affected by the COVID-19 emergency” are protected. When that no longer applies, their unpaid bills become due, the order says, though it’s unclear if that means immediately upon a person getting re-hired.

And the order now makes it clearer that renters can be evicted for reasons other than losing their job, like overstaying their lease or causing property damage.

Previously, the executive orders suspended the state laws that allowed for evictions and mortgage foreclosures, which likely discouraged landlords and banks from filing any eviction cases. Now, it only halts the “final action” in court — a term that has no legal definition, but which housing lawyers have interpreted as meaning that new cases will be allowed to proceed up until the final judgment.

“The latest order is limiting who is covered and it’s basically a green light to the court,” said Natalie Maxwell, the director of advocacy and litigation at Three Rivers Legal Services, which offers free representation to low-income residents in North Florida. “The unfortunate part is I don’t think this order clarifies for renters if they are actually protected and what their rights are.”

Maxwell and other lawyers said it’s likely that many tenants will be responsible for proving in court that they were financially harmed by the coronavirus and therefore should have their eviction case frozen. But Florida law sets up a major hurdle: In order to raise that defense, they will be required to deposit the entire amount of unpaid rent to the court within five days of receiving their eviction notice.

“It’s set up in a way where you basically have to be able to pay to play,” Maxwell said.

DeSantis first ordered a stay on evictions in an executive order issued April 2. Since then, thousands of landlords across Florida have filed eviction cases that are stacked up in circuit courts.

Related: Landlords lining up to evict hundreds of Tampa Bay tenants once moratorium expires

In Hillsborough County, more than 640 eviction cases filed since the moratorium are pending with another 423 in Pinellas County. Those numbers, though, are still lower than the number of evictions filed last year, according to the court clerks’ offices, which could be a sign that landlords have been holding off until the moratorium expires.

Fred Piccolo, a spokesman for the governor’s office, did not respond to an email or text message requesting comment. DeSantis also did not release a statement along with the extension explaining his rationale for the new requirements.

State Sen. Jeff Brandes, R-St. Petersburg, who has a background in real estate, said he thinks the governor has managed to balance the need to shield families from homelessness while preventing abuse by delinquent tenants.

Jeff Brandes

“The governor’s action appropriately narrows the funnel,” Brandes said. “It allows the process to begin but not be finalized, which is appropriate as well because … it will help prevent a backlog going forward.”

When it comes to tenants having to pay their overdue rent to the court before raising their defense, Brandes said that is an issue that “the courts and the state should address” by clarifying that these are extraordinary times when exceptions should be made.

Ryan Torrens, a Tampa foreclosure defense lawyer who ran in 2018 as a Democrat for attorney general, sent out a newsletter over the weekend under the heading: “Gov. DeSantis’s Fake Moratorium.” He said he wanted to get people’s attention after seeing a rush of headlines proclaiming the freeze had been extended without mentioning its safeguards had been tapered.

“I’m like, ‘Wait a minute, that’s not a real moratorium,’” he said.

Already, he’s seen a client’s 2018 foreclosure filing, which was frozen in April, start to move again.

That person’s foreclosure wasn’t caused by the pandemic, but he worries about people whose already perilous financial situations were worsened by the shutdowns being left uncovered by the new wording. In the end, it’ll be left up to judges to decide.

“Interpreting the amended executive order is going to be left to the courts, which means there’s risk of inconsistent application of the law,” Torrens said.

Landlords have arrived at the same conclusion, said Amanda Gill, government affairs director for the Florida Apartment Association, a group that represents apartment owners and operators across the state.

“What the order means by ‘final action’ isn’t necessarily clear,” she said.

But landlords are optimistic the new order means they can finally take action with problem tenants, including those who have overstayed leases, Gill said.

“We believe this is an important step in the right direction to allow property owners who have exhausted every other alternative to begin what is likely to be, because of the backlog, a lengthy eviction process,” she said, while urging any tenant who is struggling to make rent to talk with their property’s owner.

Related: Worried about rent or mortgage payments? Here are some resources to help.

Rep. Anna Eskamani, D-Orlando, one of the most vocal lawmakers on affordable housing issues, said asking tenants to navigate the legal landscape surrounding evictions, which has been evolving constantly, only adds to the ways they’re disadvantaged.

In addition to DeSantis’ changes, there have also been shifts in federal law. Congress allowed its own eviction moratorium to lapse on July 25, though that only applied to certain properties that accept federal subsidies or have federally backed mortgages. It’s unclear whether lawmakers will pass a belated continuation of their moratorium.

“We’re sending people into this upside-down system,” Eskamani said, “that’s always put more weight on landlords and expecting tenants to be able to defend themselves.”

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