Keeping a Roof Over Your Head: Diverging Approaches to Pandemic Evictions in Brazil and the US

by | Sep 1, 2021

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About Natalia Brigagao

Natalia Brigagão is a Victor Nunes Leal Chair at the Supreme Federal Court of Brazil and a Lecturer of the Brazilian Interdisciplinary Course of Human Rights. She graduated with a Magister Juris from the University of Oxford as an Oxford-Weidenfeld and Hoffmann Kofi Annan Scholar at Mansfield College. A researcher in human rights, constitutional law, and international law with several publications, including in books edited by an ICJ Judge and an Oxford Journal, Natalia was formerly a Visiting Student at Harvard University and holds an LLB from the Federal University of Uberlândia, Brazil. She writes in personal capacity.

On April 28, 2020, the UN Special Rapporteur on the right to adequate housing issued a guidance note calling on states to ‘[d]eclare an end to all evictions of anyone, anywhere for any reason’ during the COVID-19 pandemic and for a reasonable time thereafter, unless the evicted are causing harm or there is a threat to their own life. A year later, the recommendation would serve as a basis for a Brazilian Supreme Court decision which granted an injunctive relief suspending for six months collective evictions of communities which had settled before the pandemic and providing a procedural protection against individual evictions of vulnerable persons behind on their rent without a hearing. The Court nonetheless authorised government to avoid post-pandemic occupations if it reallocates communities to shelters or dignified places. It also provided exceptions for risk areas, necessity to fight organized crime, and removing intruders to indigenous land.

The relief was granted by Justice Barroso within a constitutional review case in which the Socialism and Liberty Party argued for the incompatibility of pandemic-time evictions with human dignity and the rights to life, health, and housing (ADPF 828). The issue was brought before the Court given the insufficiency of policy responses to an escalating housing and homelessness crisis. Up to June 2021, 14,300 Brazilian families had been evicted during the pandemic and more than 84,000 had been threatened with eviction. In the state of São Paulo, eviction requests increased 79% in the first trimester of 2021. Legislative attempts to contain the increasing violations of the right to housing were blocked or hindered. President Bolsonaro vetoed a law which suspended all evictions from urban housing until the end of the year, while the Association of Rio de Janeiro Judges alarmingly contested the constitutionality of a state law which mandated the suspension of forced evictions during COVID-19. This judicial resistance is also illustrated by a decision which recently mandated the removal of 600 families from land that had been abandoned for half a century.

The injunctive relief in ADPF 828 is pending confirmation by the Supreme Court plenary. So far, two Justices have voted in favour of upholding the relief while two others voted against it. The latter believe that evictions must be evaluated not within abstract review but on a case-by-case basis. Justice Nunes Marques also contested the need for relief as the plaintiffs ‘failed to identify’ cases of COVID-19 contamination caused by eviction procedures. The confirmation hearing, which was held online on August 11, will continue in person in a date not yet set as requested by Justice Mendes. In the meantime, relief continues to apply.

The Brazilian Supreme Court is not the only one facing difficult eviction-related questions during the pandemic. On August 12, the US Supreme Court also granted an injunctive relief on the matter in Chrysafis v. Marks. Differently from its Brazilian counterpart, however, it obstructed legislative protections awarded to tenants instead of filling the gap left by their absence. The case concerned an eviction moratorium established by New York state law to avoid a homelessness crisis, as 830,000 New York tenants are in rent arrears. The majority lifted the eviction ban because it found that protecting tenants on the basis of their own sworn statements of financial hardship breached the Due Process Clause as these claims are ‘judicially unchallengeable’. Dissenting Justices however found that the exercise of the right to challenge the statements is merely delayed. The pause on eviction proceedings expires in less than three weeks and landlords can still seek rent payments and damages as usual. Their hardship must also be balanced against that of tenants who will now face eviction earlier than expected.

One can only hope that the US Supreme Court will gravitate towards balancing the merely procedural interests of landlords against the substantive existential needs of tenants in the context of profound inequalities aggravated by the pandemic – and that Brazilian legislators are able to respond swiftly to the housing and homeless crisis like their New York peers. If these wishes do not come true, the remaining hope is that the Brazilian Supreme Court and the New York legislature persist in their protection efforts despite the shortcomings of their fellow branches.

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