Biden Follows Warrens Lead Toward Federalizing Rules For Rental Housing

Across the country there has been a collective meltdown by housing providers large and small about the recent announcement by the White House concerning rental housing. The White House announcement seems to be a response to a letter by Massachusetts Senator Elizabeth Warren and some of her Democratic colleagues in the Senate and House outlining a series of measures to address the “soaring rent prices that our constituents face.”

The truth is that rents are flattening and falling. Both Zumper and Moody’s analytics point to rents flattening and falling at the end of 2022 and found that generally, across the country, rents will fall and vacancy rates will rise. Still, the White House has charged ahead with measures it says are intended to “increase fairness in the rental market and further principles of fair housing.” Before there is too much more panic, let’s look at what the Biden administration is actually doing.

First of all, I have to remind anyone reading, that I have been warning of a coming wave of interventions to federalize rental housing policy in the United States. I warned of this in 2020, before the seemingly endless eviction bans provoked by Covid-19. What follows is yet another step in that direction. The Biden administration is taking the following measures. The Effect note is about how this might impact private rental housing.

• The Federal Trade Commission (FTC) and the Consumer Financial Protection Bureau (CFPB) – In order to stop what it calls “unfair practices in the rental market,” Biden has directed the two agencies to “seek information on a broad range of practices that affect the rental market, including the creation and use of tenant background checks, the use of algorithms in tenant screenings, the provision of adverse action notices by landlords and property management companies, and how an applicant’s source of income factors into housing decisions.”

Effect: Indeterminate. There is no additional funding identified in the White House announcement to fund this information seeking. More than likely this investigation will be relentlessly “worked” by tenant advocates. If there were a strong housing provider lobby, this would be the place to point out the impact of more regulation on rental housing and how it would, in the end, increase risk and costs.

• Credit Checks – Biden has directed the CFPB to “hold background check companies accountable for having unreasonable procedures.”

Effect: Critical. Bans on credit checks are on their way, and I’ve warned about this. Trade organizations have ignored me. If this effort goes where I think it will, expect to see efforts by the CFPB to limit or ban the use of credit scores for rental housing. This is unnecessary.

• The Federal Housing Finance Agency (FHFA) – The agency has been tasked by Biden to look at “egregious rent increases for future investments;” In other words, if the FHFA doesn’t like how one of its borrowers manages its property it may take action. Remember, if you believe in supply and demand, rents aren’t set by people in a board room but by the market.

Effect: Indeterminate. The announcement suggests the 700,000 units could be impacted by this, but how would the agency determine what an “egregious rent increase” is? There is no other way to pay back loans except with rent, and if the federal government chokes off the cash, all they’re doing is putting their own loans at risk of default.

• The United States Department of Justice – Biden has directed the agency to “inform potential guidance updates around anti-competitive information sharing, including in rental markets.”

Effect: Indeterminate. Sounds scarier that it is. It’s also bizarre and ignorant. The best way to get competition is to stoke lots of supply; that means housing providers competing with each other for residents, not residents competing with each other for scarce apartments.

• The U.S. Department of Housing and Urban Development – Biden directs the agency to make rules that require Public Housing Authorities “30 days’ advanced notice before terminating a lease due to nonpayment of rent.”

Effect: None. Check your local statistics; public housing agencies evict far more people than private housing providers, largely because they serve people that are truly poor and face a variety of challenges. Still, they don’t evict people quickly, and certainly not in 30 days. Most evictions take months, not days or weeks.

• The Blueprint for a Renters Bill of Rights – This is a promise to meet with advocates to discuss renters “rights.” Residents of any housing have the rights that we all have as well as the responsibilities outlined in their leases which are legal contracts. The notion that residents of any housing have rights beyond that is illusory at best and at worst stokes more efforts to impose costly regulation and increase risk for providers; this makes things worse for people with less money.

Effect: Critical. Housing providers and people who rent their private property have lost control of the narrative decades ago. Changing that narrative is something that until now, housing providers have shown no interest in investing in. A freewheeling discussion of a wish list of interventions surely will add momentum to restrictions on rental housing that will make it scarce, expensive to produce, and thus harder for poor people to afford.

I’ll just say it: I told you so! While the Biden intervention isn’t the end of private rentals now, it is one more step in that direction. There is still time, but with Realtor.com, The National Apartment Association, The National Association of Realtors, the Institute of Real Estate Management, and The National Multifamily Housing Council mentioned at the bottom of the announcement as supporters of the Biden effort, don’t expect large trade organizations to lift a finger to do that. These groups will continue, presumably, to play it safe. Meanwhile, many thousands of housing providers from those with portfolios to rentals in their back yards will continue to see more and more rules and regulations, some of them punitive, aimed at trying to help renters.

But when government imposes risk and costs there is only one way to offset that: higher prices or selling to larger companies. This doesn’t help poor people; it only makes things worse. What’s needed is a focus on more housing everywhere for people of all levels of income.