There are few low-income renters who can afford lawyers when they go to eviction court, which puts them at a disadvantage. In these cases, landlords almost always win.
A national movement supporting a right to civil counsel is pushing cities and states to make sure that low-income renters get a fair shake in eviction court. This movement is especially important when the coronavirus pandemic has placed millions of low-income renters at risk of eviction.
What is the right to civil counsel about?
In criminal cases, the court appoints a public defender for low-income people who cannot afford a lawyer. However, there is no right to legal representation in civil courts. Civil courts hear cases like divorces, company product defects, or medical malpractice. Evictions are also civil proceedings.
The right-to-counsel movement wants to make sure that everyone who goes to civil court has the same legal representation as people in criminal courts. The judgments of civil courts should not be biased by who can afford a lawyer.
Landlords almost always have a lawyer in eviction court, and renters almost never do. Nationwide, an estimated 90% of landlords have legal representation; while only 10% of renters have lawyers. Without representation, tenants almost always lose their cases and are evicted anyway.
John Pollock is a staff attorney at the Public Justice Center. He is also coordinator of the National Coalition for a Civil Right to Counsel. In a February 22 webinar hosted by the National Low-Income Housing Coalition, he described the growth and success of the movement.
The right-to-counsel movement existed before the pandemic, with five cities having right-to-counsel laws protecting low-income renters. Since the pandemic, two more cities have adopted right to counsel laws.
The cities that currently provide a right to civil counsel are New York City (2017), San Francisco (2018), Newark, New Jersey (2018), Cleveland (2019), Philadelphia (2019), Boulder (2020), and Baltimore (2020).
The pandemic has brought on a looming eviction crisis. Millions of low-income renters have built up months of unpaid rent. Many state and local governments have enacted eviction moratoriums. Many also created emergency rental assistance programs to help low-income renters avoid eviction.
Even with the CDC national eviction moratorium now in place, evictions have continued around the country. And when eviction protections expire at the end of the pandemic, many renters will still owe months worth of back rent. Without legal representation, they will almost certainly lose their homes.
Right to counsel laws have had remarkable success protecting low-income renters from eviction. New York City was the first to enact right-to-counsel laws. Overall, 86% of renters who had counsel stayed in their homes.
Since 2013, legal representation has risen from 1% to 38% in New York City. In that same time, evictions have dropped by 41%, including a 15% drop in 2019 alone. Eviction filings have also fallen 30%, and more than 20% in 2019. This means that fewer cases are even getting to court. And it does not mean that low-income renters are just not showing up. Default judgments, which are made when someone does not appear in court, fell by 34%.
San Francisco and Cleveland have also seen success with right-to-counsel. In San Francisco the eviction filing rate fell by 10% in the first year. Two-thirds of tenants receiving full representation were able to stay in their homes. San Francisco was also able to serve renters with the greatest needs. Even though there is no income limit to the city’s program, 85% of those receiving legal help were low- or extremely low-income renters.
In Cleveland, legal representation kept renters in their homes and helped with other eviction issues, too. Among the renters with representation, 93% avoided eviction or involuntary move. For those seeking more time to move, 83% got it. And renters were able to keep more of their deposits, with 89% of those seeking to reduce or eliminate damages having success.
Some states are considering right-to-counsel legislation. This would be a huge step forward, with these protections statewide instead of in just a few cities. Right-to-counsel legislation is being considered in 2021 in Connecticut, Indiana, Maryland, Massachusetts, Minnesota, Nebraska, South Carolina, and Washington, Delaware and New York are two other states that may possibly introduce legislation this year.
Many cities around the country are also considering adopting a right-to-counsel for low-income renters. These cities are in all regions of the country, not just “liberal blue states” and “conservative red states.” Here is a sampling of cities considering right to counsel laws:
- Chattanooga, TN
- Chicago, IL
- Clark County, NV (Las Vegas)
- Detroit, MI
- Fresno, CA
- Houston, TX
- Nashville, TN
- Omaha, NE
- Pittsburgh, PA
- Toledo, OH
- Tulsa, OK
As right-to-counsel laws have succeed in helping low-income renters stay in their homes, they have also changed landlord behavior. Landlords are more likely to negotiate, and cases are less likely to end up in eviction court. With fewer evictions being filed, judges have noticed a reduction in backlogs. They have also noticed that cases are being tried more efficiently when both sides have lawyers.
The right-to-counsel movement has grown during the pandemic. Many local jurisdictions federahave used federal COVID relief funds to pay for lawyers in eviction cases. Legal services are also sometimes provided as part of emergency rental assistance programs.
When the pandemic winds down and the economy opens up again, having a right to legal representation will be more important than ever. Housing costs are still climbing, and millions of low-income renters will be facing a mountain of back rent. With a lawyer by their side, low-income renters will have a much better chance to keep their homes past the end of the pandemic.
