The Right to Eviction Counsel Is Gaining Momentum

Back in 2017, New York City passed a law to guarantee free legal representation to low-income residents facing eviction. The first of its kind in the nation, the law established a standard for due process for vulnerable families with an aim to level an unfair playing field in housing court.

While landlords in New York appear with counsel in more than 90 percent of eviction proceedings, tenants were represented by attorneys in just 1 percent of cases in 2013. The new law is working: Over the last quarter, more than 32 percent of tenants facing eviction brought lawyers to their hearings, and in 2018, evictions were down by 5 percent from the year before.    

“Housing court was literally like David v. Goliath,” says Steven Banks, commissioner for New York City’s Human Resources Administration and Department of Social Services.

The right to counsel in eviction cases is a movement that’s gaining momentum. Today, New York Mayor Bill de Blasio will announce that the law is expanding to five new neighborhoods, with full implementation in sight by 2022. Other cities and at least one state are drafting their own right-to-counsel laws. And on Thursday, a bipartisan pair of senators, Colorado Democrat (and 2020 presidential aspirant) Michael Bennet and Ohio Republican Rob Portman, introduced the Eviction Crisis Act, a law that would support legal services nationwide.

“No person should lose their home because they cannot afford a lawyer, and New York City is the first city in the country to make this a reality,” de Blasio tells CityLab. “Over 350,000 New Yorkers have received free legal assistance so far, setting us on the course to be the fairest big city in America.”

The eviction crisis is national in its scope. According to Matthew Desmond, the author of the definitive 2016 book Evicted, more than 2 million eviction filings are issued every year, which exceeds the number of foreclosures at the height of the foreclosure crisis. Evictions are the engine of the cycle of poverty, fueled by a shortage of affordable homes everywhere and the legacy of racial discrimination built into the pattern of our neighborhoods.

Tenants who lack access to legal representation have very little chance of winning a case in housing court, even when the facts are on their side. Tenants frequently face eviction when they’ve paid rent but landlords claim that they haven’t, for example. For low-income families, coming up with proof that passes court muster may be a challenge. And in New York, rent increases that cause a family to face eviction may often be illegal. “On their own, tenants can’t establish that the rent is unlawful, that conditions are violations, or that the rent was actually paid,” Banks says.

New York City’s new law would expand the right to an attorney in eviction cases to Morris Heights in the Bronx, East New York in Brooklyn, East Harlem and Inwood in Manhattan, and Far Rockaway in Queens. Overall, evictions have declined by 30 percent from 2013 to 2018.

The movement has gained traction in San Francisco and Philadelphia, cities that have passed legislation for similar protections. Other cities, including Minneapolis, San Antonio, and Washington, D.C., have established programs to provide legal representation to low-income households. Boston is looking at a bill of its own, but Massachusetts could beat Mayor Marty Walsh to the punch by passing a statewide right to counsel law. Cleveland, Detroit, Seattle, Los Angeles—the idea is catching on.

Arguably, cities can’t afford not to pass right-to-counsel laws. New York’s law, for example, will cost $166 million to fully implement across all five boroughs. But putting families out on the street creates costs that are borne by the entire city. It’s hard to put a cost savings figure on keeping roofs over people’s heads, but evictions touch every corner of a local economy, from social services to productivity to healthcare.  

While major metro areas where the eviction crisis affects the greatest number of renters are taking up the mantle of right-to-counsel laws, there’s still room, and need, for Congress to act. New York Representative Alexandria Ocasio-Cortez’s Place to Prosper Act would guarantee a right to an attorney in eviction proceedings nationwide, a boon especially to rural residents or renters in conservative states that won’t see new tenant rights any time soon. For housing advocates, that’s the ultimate goal, but AOC’s suite of social justice protections is still a ways off.

The Eviction Crisis Act proposed by Bennet and Portman has bipartisan support, on the other hand. It stops short of a sweeping right to counsel, but would benefit renters everywhere in critical ways. The bill would establish a Federal Advisory Committee on Eviction Research and create a national database to track evictions, which would help local authorities monitor the toll of evictions and tailor better legislation to help prevent them. The Eviction Crisis Act would boost those local efforts by increasing funding for the Legal Services Corporation, a public-private partnership that helps to provide legal aid for low-income Americans. Finally, the bill would set new standards for fairness and transparency with regard to how consumer reporting agencies generate tenant screening reports.

Many renters who face eviction owe less than $600—an insignificant sum considering the enduring havoc the process plays in the lives of those who lose their homes. Guaranteeing tenants a right to counsel will raise the cost of pursuing eviction for landlords: These won’t be open-and-shut cases in which only the property owners have the lawyers.