GREENVILLE — Renters in tens of thousands of apartments in South Carolina should be insulated from eviction this summer, but the federal law intended to protect them is porous, diminished by confusing rules and loose oversight.
Landlords can’t evict tenants if they get government subsidies or their buildings are financed with federally backed loans, but many property managers don’t know their status. Courts aren’t supposed to accept eviction cases from protected properties, but they have taken in dozens of improper filings. Tenants may request a hearing to assert their case for protection, but not everyone knows those protections even exist.
The way the system breaks down is clear here in the state’s most populous county, Greenville.
On the first day South Carolina courts began accepting eviction cases after shutting down for the novel coronavirus pandemic, one in 10 cases in Greenville County was filed improperly, a Post and Courier analysis of court records found. In the weeks that followed, the county’s courts accepted dozens of illegal filings.
Greenville may not be alone. The newspaper identified potentially illegal filings in more than a dozen counties that represent about half the state’s population, including all of its largest cities. Housing lawyers said those findings amplify their concerns that, without better oversight, a huge swath of South Carolina renters face the possibility of receiving an eviction notice from which they should be protected.
The problems arising here are not unique to South Carolina; courts across the country have struggled to guard against improper eviction cases. But they are emerging here early because South Carolina was among the first states to let landlords take tenants to court after halting evictions for the coronavirus pandemic.
The leaders of South Carolina’s court system sought to prevent illegal filings. They required landlords to double-check whether their properties are covered by federal protections and fill out a form showing they’d done so. But the forms have been turned in incomplete and incorrect.
The Supreme Court order doesn’t specify the databases that landlords should use to check their status. A thorough search requires going to multiple sites because the protections in the coronavirus bailout package cover multiple programs, but some landlords have failed to check them all.
South Carolina has seen a steady flow of evictions despite the federal protections, which are thought to cover a quarter of rental properties nationwide. All told, landlords filed more than 3,000 evictions in the last two weeks of May, which was little changed from last year. In some counties, the number of evictions actually increased.
Congress banned anyone with a federally backed loan from seeking an eviction when lawmakers approved the coronavirus bailout package known as the CARES Act. It says landlords can’t pursue an eviction until the last week of July, and it gives tenants until the end of August to move out.
But the law did not specify punishments for pursuing one anyway, meaning landlords are unlikely to face penalties for violating the protections. In practice, it is only enforced when tenants show up in court to challenge an eviction.
Only a few have. Larry Trivisone is one of them.
Before COVID-19 entered the American lexicon, before thousands of South Carolinians were infected and the state was forced to shut down, Trivisone was ready for a new job.
So he quit his old one, figuring that work in information technology would be easy enough to come by. But with job prospects swiftly upended by the pandemic, he turned out to be wrong — “epicly unfortunate timing,” he said.
Worse yet, a data snag delayed the arrival of his federal stimulus check, another component of the coronavirus bailout package. To keep current with bills, he took up odd jobs, like fixing computers from his apartment. He pawned many of his belongings.
And he fell behind on his $750-a-month rent.
South Carolina’s chief justice, Donald Beatty, suspended eviction proceedings in March, writing that kicking tenants out of their homes would deepen the public health crisis. In light of the stimulus checks, Beatty later lifted the stay on evictions, saying the influx of cash made it possible for renters to “honor their financial obligations.”
Beatty allowed evictions to resume on May 15. That day, Hawk’s Landing Apartments — a sprawling complex north of town that boasts "H-U-G-E apartments" and the "best prices in Greenville" — filed cases against a dozen tenants, including Trivisone. All of them were illegal, because, unbeknownst to the apartment complex’s staff, the owners of Hawk’s Landing had a federally backed loan.
Each filing should have been rejected by the courts. All of them included a form certifying that the complex wasn’t covered; each left blank a section instructing landlords to check for protected loans.
The form didn’t tell Tammy Hirschauer, who filed them, to search her complex in a database of loans owned by Fannie Mae, the government-backed mortgage lender. Had she, Hirschauer would have seen that she wasn't allowed to seek an eviction.
She did not. Neither did the clerk who accepted the filing into the court record. But when he was served with court papers, Trivisone did, prompting him to call a pro-bono attorney, Mark Fessler, who filed a motion to throw out all of Hawk’s Landing’s cases.
“The clerk should not have allowed the filing without that question being answered. The certification that the Supreme Court said you’ve got to have was incomplete,” Fessler said.
Fessler’s filing prompted Hirschauer to ask the court to throw out the cases she had filed. And it prompted clerks at the North Greenville magistrate court to check for bad filings at other complexes and toss them out. They made a list of every protected property in the area, and hung a copy at each court clerk’s desk.
But, by then, nearly a week had passed. They had already accepted 35 improper eviction filings.
When the Supreme Court lifted a stay on evictions last month, some housing attorneys and landlords thought the federal protections would prevent a wave of new cases.
The protections appear to have helped in many parts of the state: Despite record unemployment in South Carolina, eviction filings at the end of May were on pace for a typical year, dipping slightly below 2019.
But the results have been uneven, according to a Post and Courier database of eviction cases. Filings are down about 25 percent in Charleston County. Around Columbia, the state capital, they’re down about two-thirds.
The decline was not universal. Greenville County saw evictions rise 25 percent. In Aiken and Pickens counties, the stack has doubled compared to last year.
"You would expect far fewer evictions than the same time last year as a result unless renters are still facing extreme financial hardship from the pandemic, landlords are filing illegal evictions, or both. From what we’ve seen, it appears to be both," said Adam Protheroe, an attorney at the S.C. Appleseed Legal Justice Center.
“What you’re finding is exactly what we were afraid of.”
The Post and Courier found potentially illegal evictions all over South Carolina: from Oconee County in the state’s northwest corner to Horry County by the ocean. They were in Greenville, Columbia and Charleston, the state’s biggest cities. They were in smaller towns, too, from Aiken near the Georgia border to Dillon just outside North Carolina.
Some of the evictions may still be allowable under the CARES Act because the law’s protections only apply when landlords try to remove tenants for being behind on rent. They can still seek evictions in other cases, like if a tenant has damaged the property.
Many landlords of protected properties didn’t return messages, and while the newspaper contacted magistrates in a half-dozen counties, they either didn’t respond or said they were prohibited from discussing specific cases. The newspaper also reviewed court papers for nearly three dozen cases in Greenville County.
Every single one was related to unpaid rent, placing them squarely under federal protections. In at least three instances, landlords successfully won an eviction order despite them. Ten more are still pending.
The issues in Greenville highlight how precarious the CARES Act protections are.
Apartment owners can hold a federally backed loan without realizing it because mortgages are bought and sold after they’re signed. Building managers are further removed from the financing arrangements. Court clerks can mistakenly take an incomplete or incorrect filing. And judges only hear an eviction case if a renter requests a court date.
Issues with the law’s enforcement have come despite efforts by South Carolina courts to make landlords comply with it. At least the state has tried, said Eric Dunn, director of litigation for the National Housing Law Project: Signing a form at least forces landlords to acknowledge that the eviction ban exists.
“In some of the states where they don’t have rules we’ve seen landlords say they’re not even aware of the CARES Act,” Dunn said.
Landlords contacted by The Post and Courier said they had been confused by how the protections work. The CARES Act’s requirements are complicated, covering a long list of federal housing programs and any building with loans insured by Fannie Mae and Freddie Mac.
What’s more, Fannie and Freddie can become involved with properties after loans are issued because they buy and sell mortgages as investments, so property owners can run afoul of the law without realizing it, according to an April report by the Congressional Research Service.
“The opacity of this information raises questions about enforcement of the protections,” the Congressional Research Service wrote.
Few tenants in South Carolina have the benefit of an attorney reviewing the nuances of their case, or their apartment owner’s financing. That’s why housing lawyers contend it’s critical that the court system provide stricter oversight when evictions are filed.
They say the state Supreme Court should provide a more detailed explanation of what properties are covered under the CARES Act, distribute a database of properties that are known to be protected and allow for special hearings in cases where an apartment’s status needs to be reviewed.
More than that, the lawyers say, landlords should face harsher penalties if they file an illegal eviction at a protected property. In Texas, for instance, landlords are subject to criminal perjury charges.
“When landlords falsely certify or certify in error, and assuming someone catches it, they’re out the $40 filing fee,” Protheroe said. “Meanwhile, the tenant has a public record in their name that can limit their housing options in the future.”
In South Carolina, the penalty for an improper eviction filing is a lesser charge for contempt of court, which only applies if the information a landlord submits is “willfully false.”
That leaves enforcement up to the government programs that subsidize and support apartments, including Fannie Mae and Freddie Mac.
Fannie and Freddie insist they will hold apartment owners accountable under the terms of their loan agreements, though Fannie says it considers a violation resolved if a landlord who breaks the law drops their case. They say they take violations of the CARES Act seriously, but Congress didn't specify how violations should be handled.
Instead, the agencies' primary response has been to publish lists of properties that are covered by the law — to tell landlords, tenants and the courts who is protected, if they take the time to check.