by Doug Livingston, Akron Beacon Journal

Numerous struggling tenants have been spared since a national eviction moratorium took effect Sept. 4. Now a group of landlords, including the most aggressive filer of evictions in Akron during this pandemic, is fighting to get rid of it.

Federal lawsuits filed in Georgia and Ohio are the first of more to come as landlords seek to overturn an order by the Centers for Disease Control and Prevention to prevent homelessness and COVID-19 spread by halting many evictions through Dec. 31.

In Summit County alone, more than 50 tenants have avoided eviction with another 100 ready to claim protection under the moratorium championed by President Donald Trump. Lawyers for the landlords say the CDC overstepped its statutory authority and, by doing so, denied property owners their contractual and constitutional right to remove non-paying tenants.

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“Because of the CDC order, (landlords) are not able to evict tenants who are not paying and replace them with tenants who are just as deserving of housing and who are willing to actually pay,” said Luke Wake, a California-based attorney with Pacific Legal Foundation, which is trying the case.

“These (landlords) have to continue to maintain their properties, their units,” Wake told the Beacon Journal. “They have to pay their mortgages and property taxes, all of that while they’re being required to provide housing and hold up their end of the bargain in the lease without the benefit of the tenants abiding by their end of the bargain.”

The Pacific Legal Foundation, which often sues over federal issues of administrative overreach and separation of power, is working the Ohio case with the Columbus-based 1851 Center for Constitutional Law. Together, the groups argue that it’s unconstitutional to impose a fine of up to $200,000 if their clients ignore the moratorium by evicting their tenants.

Their clients include the owners of Skyworks Ltd. and Clear Sky Realty, which manages rental properties in Summit, Stark, Mahoning and Tuscarawas counties, the National Association of Home Builders and the Colorado-based Monarch Investment and Management Group, which manages 62,143 rental units in 21 states. Monarch’s 37 managed properties in Ohio include Abbey Run Apartments in Toledo and Cedarwood Village Apartments in Akron, which are also listed as plaintiffs.

Cedarwood Village Apartments has been the most aggressive filer of evictions in Akron this year. Until April, the village of 476 apartments along Weathervane Lane was owned by Kushner Companies, which also owned the Abbey Run Apartments until it too was sold in 2017.

Kushner Companies General Counsel Christopher Smith said the company is not involved in the current lawsuit “in any capacity.” Smith did not say who bought the two properties and is now suing the U.S. government. The most current business records with the Ohio Secretary of State’s office list Kushner Companies.

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Before expiring on July 25, a 120-day moratorium approved by Congress suspended foreclosures and evictions on properties or tenants who receive government assistance. With Congress failing to renew the moratorium, the CDC order extended protection to anyone financially harmed by COVID-19 who sought government help and can prove they paid as much as possible toward their delinquent rent.

In these nine months of limited moratoriums, the companies that now own Cedarwood Village Apartments have filed more evictions in Summit County than any other property owner, according to court data. Since April 1, the companies have filed 31 eviction cases in Akron Municipal Court. That’s twice the evictions filed by Akron Metropolitan Housing Authority, which controls nine times more rental units.

Tenants like Lisha Black-Cooley, who left her job at a hotel in Montrose for fear that her compromised immune system put her at great risk, were evicted over the summer as the companies’ Toledo attorney filed paperwork in Akron to prove tenants were not protected by the first moratorium. The filings have continued under this second moratorium.

The Pacific Legal Foundation is “very seriously looking at” filing another lawsuit on behalf of a smaller landlord in an unnamed southern state, he said.

That would be the third legal challenge after a lawsuit in a federal court in Georgia was filed in September by The New Civil Liberties Alliance. That case involves a handful of individual landlords and the National Apartment Association’s 85,000 members.

Wake said plaintiffs with national membership broaden the scope of a favorable ruling. The goal is to strike down the CDC moratorium, not just for his clients but for all landlords. To that end, multiple cases increase the chances of differing judgements, which would have to be settled by the U.S. Supreme Court.

Locally, Jon Petit with Community Legal Aid said his staff of pro-bono attorneys and tenant advocates have used the moratorium to keep more than 50 renters in their apartments.

With each round of CARES Act federal assistance distributed to struggling renters, Summit County gives Petit a list of potential clients. The first round produced seven names. More than 50 qualified under the moratorium.

“In round two, we have received 132 referrals and anticipate helping around 100 of those to avoid eviction,” Petit said. “The strategy of our work includes a combination of using the CDC declaration where appropriate, rental assistance funds and legal defenses to stop evictions or persuade landlords not to file.”

Petit is considering filing a brief of opposition to the federal lawsuit, if not intervening more directly in the case.

“We have clients currently facing evictions in both Summit and Stark counties who have landlords that are part of the federal case challenging the CDC order,” Petit said. “We believe the CDC order is valid, constitutional and prohibits any action to evict a tenant who has served the landlord with a CDC declaration as stated in the order.” 

Reach Beacon Journal reporter Doug Livingston at dlivingston@thebeaconjournal.com or 330-996-3792.

This story is part of Home In Akron, a special reporting series by the Akron Media Collaborative. Journalists from the Akron Beacon Journal, The Devil Strip, WKSU, Your Voice Ohio, News Channel 5 and Reveal/The Center for Investigative Reporting are working together to explore the complex issues confronting Akron’s housing and rental markets and their impact on the people who live here. 

Photo: Cedarwood Village Apartments on Monday, Nov. 2, 2020 in Akron, Ohio. (Phil Masturzo/ Beacon Journal)

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