By Kristen Bolster
Over the past few years there has been action at the local level and increasingly at the state level to implement the right to counsel in eviction cases. This action most recently has occurred against the backdrop of COVID-19, at a time when many low-income renters were unable to work and faced the threat of being evicted during a global pandemic. To aid tenants during the pandemic, the federal government announced a national eviction moratorium to stop landlords from evicting tenants for missed rent payments. However, with the moratorium now expiring on July 31, 2021 and roughly 4.1 million renters not current on rent or mortgage payments, eviction or foreclosure in the coming months is likely for millions of Americans. Housing court will soon be filled with tenants trying to plead their case, many without representation from an attorney.
The movement for a right to counsel in eviction cases seeks to redress the imbalance of power between tenants and landlords in housing court. Having the assistance of a lawyer in housing court can mean the difference between staying in one’s home or being forced out. One study found that two-thirds of tenants who had an attorney were able to stay in their homes, compared with one-third of tenants who represented themselves in housing court. Yet, in jurisdictions across the U.S., the majority of tenants face evictions without a lawyer, while the vast majority of landlords, 85 to 90 percent in some housing courts, are represented.
Not only is the right to counsel in housing an issue of income inequality, as renters typically have less than half the income of homeowners and therefore have less funds to pay for representation, but there is also a racial justice component. Black and Hispanic tenants are disproportionately affected by eviction; this impact has been heightened during the pandemic. The Joint Center for Housing Studies of Harvard University found that Hispanic and Black renters were more likely to lose employment income during the pandemic than other renters, and the share of Hispanic and Black renter households reporting they are likely to be evicted in the next two months is twice as high as that of White or Asian renters.
Realizing the large increase in homelessness that could result from lifting the eviction moratorium, cities and states across the U.S. have done combinations of passing legislation, passing ballot measures, enacting city ordinances, and creating pilot programs to give more tenants access to counsel when their home is at stake. Even before the pandemic and the greater need for a right to counsel, pro bono attorneys have been and continue to be leaders in eviction defense cases. They have been the backbone of pilot programs that in many cases have eventually led to fully funded programs.
In our paper on The Movement to Secure Right to Counsel in Housing, Pro Bono Institute has been tracking the right to counsel movement from cities that started out with pilot programs, to cities that created fully implemented and funded programs, to states that have now implemented the statewide right to counsel in eviction cases.
The right to counsel movement began at the citywide level in New York City and San Francisco and has expanded from there. As the right to counsel in housing has become more prominent, more cities have begun to follow the lead and pass their own legislation. Cities that have secured the right to counsel have done so through a variety of ways, including contracting with nonprofit organizations to manage a right to counsel program or directly funding and managing a program. Each right to counsel city has different qualifications that tenants facing eviction must meet to receive counsel, such as having a certain median household income, being able to qualify for public assistance, or in some cases, having children in the household.
Not only have cities begun to realize the disparities in representation that tenants face in housing court when they are not able to access an attorney, but several states–Washington, Maryland, and Connecticut–have stepped up to secure the right to counsel in eviction cases. Many cities have also created pilot programs that rely on a combination of city-funded support and pro bono representation to serve low-income tenants and provide counsel to meet the needs of underserved individuals.
While these cities and states have made great strides to establish a right to counsel in housing, there are thousands of other locales where tenants who cannot afford representation enter housing court, facing eviction, with no legal assistance. Once the eviction moratorium expires at the end of July, many low-income renters will face this reality. Homelessness may become a greater problem in many cities, as having an eviction filing on record can make it much harder for an evicted renter to find a new place to live because some landlords refuse to rent to individuals with an eviction record.
Now more than ever, it is important that pro bono attorneys prepare to get involved and volunteer so that renters have a fair opportunity to make their case before being forced from their home.
See The Movement to Secure Right to Counsel in Housing to learn more about the right to counsel movement.
|States with Right to Counsel Laws
|Cities with Right to Counsel Laws
|Cities with Right to Counsel Pilot Programs
|States that have Bills Pending or are Considering Legislation
|Santa Monica, CA
|New York City, NY
|Multiple Cities in New Jersey
|San Francisco, CA