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During Maryland rent moratorium, more landlords using legal ‘loophole’ as means to evict

Indigo Null, left, is pictured with Charles Armstrong and Spencer Compton at their CopyCat apartment. Null and other tenants are facing the risk of being evicted, despite a pandemic prompted moratorium, because their leases have run out and they're unable to pay rent.
Indigo Null, left, is pictured with Charles Armstrong and Spencer Compton at their CopyCat apartment. Null and other tenants are facing the risk of being evicted, despite a pandemic prompted moratorium, because their leases have run out and they're unable to pay rent. (Kenneth K. Lam)

When Indigo Null first set foot in the CopyCat apartment building several years ago, they finally felt a sense of belonging that long evaded them in their rural South Carolina hometown.

Null, a photographer who works in food service to supplement their income, jumped at the chance to live in the arts haven with other like-minded creatives — filmmakers, musicians and painters among them. Few other apartment buildings in Baltimore offer similar studio spaces for living and working, save for those priced out of Null’s budget.

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“The building is great if you’re a working artist, and if you don’t have parents who can pay for stuff,” said Null, who identifies as transgender and uses they/them pronouns. “It’s the difference between running a photography business and otherwise having to work 80 hours a week.”

When the coronavirus pandemic hit Maryland, Null — legally known as Anna Velicky — and several of their neighbors and friends quickly lost the ability to pay rent. In-person dining, nightlife, arts and entertainment ground to a halt, drying up incomes for millions of workers who rely on week-to-week paychecks to survive.

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Null said their landlord, Charles Lankford, initially tried to contact tenants via email and memoranda. But as weeks passed and tenants still hadn’t paid rent, Lankford took some of them to what is known as tenant holding over court, through which he can circumvent both state and federal moratoriums on residential evictions for failure to pay rent.

In tenant holding over court, a landlord can take action against a tenant whose lease has expired, without having to provide a codified reason for not extending or renewing the lease. This legal route has become particularly popular in 2020: In August and September alone, 233 tenant holding over cases were filed in Baltimore district court, an 82% increase in activity from the same two-month period a year before, according to a Baltimore Sun data analysis.

Tenant advocates and legal experts said the recourse functions as a loophole for landlords seeking to evict during the public health crisis, which has entered a new phase of surging case counts, hospitalizations and deaths. It underscores the disparate economic outcomes imposed by the forces of the pandemic, which has disproportionately impacted low and middle-class workers — especially Black women with children, who are more likely to be behind on rent payments than any other group, according to a study published Dec. 16 by the National Women’s Law Center.

Lankford also was able to turn to tenant holding over court despite operating without a rental license. Baltimore Housing spokeswoman Tammy Hawley said he did not receive a rental license in 2020 due to outstanding violation notices issued on the CopyCat property, including inadequate lighting and ventilation and improperly constructed lofts.

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Lankford, who bought the CopyCat building in 1983 for $225,000 and has spent decades promoting its image as a premier arts destination for the city, did not respond to requests for comment.

“The CopyCat case is narrow because it examines whether or not unlicensed landlords can access the courts to evict someone when their very activity of operating as unlicensed landlord violates the law,” said Gregory L. Countess, director of housing advocacy at Maryland Legal Aid, which is representing Null and other CopyCat tenants. “But it’s also about the broader issue of a pandemic: When you have a supposed moratorium on actions to evict people because of the public health imperative, it’s just not safe to put people out.”

That’s why both Maryland Gov. Larry Hogan and the U.S. Centers for Disease Control and Prevention imposed the halt on evictions.

State courts will not hear failure to pay rent cases until existing restrictions on court operations change. The courts are, however, processing warrants of restitution — the paperwork crystallizing evictions — and still hearing tenant holding over, wrongful detainer and breach of lease cases.

The CopyCat, in Baltimore’s Station North neighborhood, previously housed a Crown Cork & Seal factory for making bottle-capping machinery. Baltimore celebrities including Dan Deacon and the Wham City arts collective have inhabited the building, which maintains the flavor of its warehouse origins with cement floors, metal staircases and graffiti-smacked walls.

Lankford’s attorney, Herbert Burgunder III, a partner at Rimon Law in Baltimore, said his client has a well-defined legal path. Lankford, he added, has dedicated his life to making the CopyCat an inclusive space for all.

“The law permits a landlord to regain possession of an apartment under a month-to-month tenancy after sending a written notice,” Burgunder said in an email. “Tenants who do not move out after the notice period are subject to an order of repossession from the court.”

But Lankford’s case has been complicated by his lack of a license. Baltimore City law requires landlords to register with the Department of Housing and Community Development every year. Without the license, they can neither charge nor collect rent.

The lack of a license also rendered him ineligible to receive any of the federal relief funds that the city designated specifically for landlords.

“The landlord wants to get through the backdoor what he can’t get through the front,” said Douglas Nivens II, the Maryland Legal Aid attorney handling Null’s case. “We are seeing an increase of landlords finding alternative ways to evict tenants.”

Two district court judges have sided with CopyCat tenants. Yet, when Null motioned to dismiss the case, a judge denied the motion and sided with Lankford, determining that despite not having a license, he fulfilled all the other requirements for tenant holding over.

However, Judge Videtta Brown also declined to set an appeal bond — making it easier for Null and their attorney to take the case to a higher court if they so choose.

Brown also prohibited Lankford from evicting Null at least until the Maryland Judiciary becomes fully operational again. And since he remains unlicensed, Lankford still cannot collect rent.

But not all judges will respond the same, said Carol Ott, the tenant advocacy director for the Fair Housing Action Center of Maryland. She called tenant holding over court “the quickest and easiest way to evict somebody.”

“Giving landlords a loophole to evict people, particularly during the winter and a pandemic, created a perfect storm,” Ott said. “The problem isn’t the law, and it’s not the tenants. It’s how the law gets interpreted in court.”

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Ott said several of her clients have had their landlords not renew their leases over the course of the pandemic.

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“There never seems to be any sense of urgency to correct the power imbalance,” Ott said. “We need to take a hard look at how tenants are treated in court versus landlords. The tenant doesn’t get any loopholes.”

On March 16, Hogan, Maryland’s Republican governor, halted evictions for tenants who could prove that their failure to pay rent stemmed from the public health crisis. The state has allocated grants through its housing department for eviction prevention, including $2 million for Baltimore in November. The CDC’s eviction moratorium, which adds another layer of protection to renters who have lost income during the pandemic, has been extended through January.

Maryland Del. Jheanelle Wilkins, a Democratic lawmaker who represents Montgomery County, said she plans to introduce statewide legislation during this upcoming General Assembly session that would require landlords to provide “just cause” for not renewing leases in tenant holding over cases. The bill accompanies additional rent relief legislation slated for this year’s session, including one proposal that would ensure a tenant’s right to counsel and another that would raise the rent court filing fee from $15 to $125.

“The CDC order has been holding the flood gates, but once these protections disappear, it’s going to be intense,” Wilkins said. “Tenants pretty much have no rights when it comes to tenant holding over. The conversation is, ‘Did you provide notice?’ and ‘Are you still living there?’ Then it’s granted if all those boxes are checked. But there are many more factors at play.”

Null and the other CopyCat tenants’ success or failure with the Court of Appeals could signal to both city and state lawmakers the need for further policy modifications, said Zafar Shah, an attorney at Baltimore’s Public Justice Center.

“We were warning legislators in April or May that eventually we’ll get to a point where the incentive is tenant holding over instead of failure to pay rent, and we’re there,” Shah said. “This is not an argument that a landlord should never be able to repossess their property or get their money eventually. But these eviction actions are being taken through the processes before rental assistance catches up.

“If we had this ‘just cause’ requirement, even for just for tenant holding over, we’d be increasing the chances that they can resolve these issues through rental assistance.”

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