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Tenant Representation

What if tenants had lawyers in eviction court? 


Most tenants can't afford a lawyer when facing eviction and most Legal Services programs are unable to meet the demand for representation of the poorest of the poor. Most owners, on the other hand, are REQUIRED to have a lawyer in eviction court because the entity that owns (or manages) the property is a corporation. Eviction court can be a cozy club where judges or magistrates, who are all lawyers, speak the same language, share the same educational background, and share some interests and values. Judges depend on lawyers for endorsements and contributions  at election time. Most likely judges are not tenants and haven't known the experience of renting since their very early days. All of these factors make for a power imbalance in eviction court. Expanding access to legal representation for tenants is one way to balance that relationship. 

One of the most vigorous efforts to create a “right to counsel” is going on in New York City. Last September, Mayor Di Blasio announced $12.3M to for representation of tenants in eviction court. New York has had some pilot projects that show the benefits of eviction court representation. ("Evictions Are Down by 18%; New York City Cites Increased Legal Services"). Much of the effort to expand representation has come from advocates who are pushing the issue. “As we rallied to support this important and critical bill, we recognized the need to form a new coalition, independent of the legislature, that would build a citywide movement not for increased funding for representation, but for NYC to be the first city in the nation to establish a RIGHT to counsel for tenants in housing court.” 

It's not just NYC that is looking at “right to counsel” in eviction cases. A 2012 Boston Bar Association study of two pilot projects reports: “The findings of both pilot studies confirm that extensive assistance from lawyers is essential to helping tenants preserve their housing and avoid the potential for homelessness, including all of the far-reaching tangible and intangible costs to tenants and society generally that are associated with homelessness. [ ] Previous studies, both nationally and in Massachusetts, similarly showed that tenants represented by lawyers obtain significantly better outcomes in court than those who represent themselves because, without counsel, they are unable to present their valid defenses.”

In San Francisco, a spike in evictions has led to increased public funding for tenant representation. “In 2013, a total of 3,662 San Franciscans were served with eviction notices. Over 1,000 of these tenants went to court without lawyers. According to court statistics, 90 percent of landlords hire attorneys, while only 10 percent of tenants have a lawyer. This inequity has made it more difficult for tenants to adequately assert their rights. To level the playing field, the San Francisco Board of Supervisors Budget and Finance Committee just designated $1 million to fund 10 nonprofit housing attorneys to perform full scope legal services for any tenant facing eviction in San Francisco. We teamed up with tenant rights organizers and attorneys to fight for this budget allocation in order to address San Francisco's affordability crisis. This funding will ensure that all San Franciscans facing eviction will receive legal assistance if they need it.”

So, what's important about these proposals? 
  • 1. More money for representation. Right now in Ohio, Legal Aid can represent low income households in eviction court, but most of the Legal Aid programs are way underfunded. A “right to counsel” campaign can address that issue. 
  • 2. More tenants eligible for free representation. Right now Legal Aid can only serve a narrow band of tenants who are in need. NYC's proposal would expand coverage to 200% of the poverty level. Back during the foreclosure crisis, Legal services program got funding to help homeowners up to 200%. Shouldn't tenants facing the affordability crisis get similar treatment? 
The biggest benefit from right to counsel is homelessness prevention. But keep in mind that NYC has a unique homeless program with a “right to housing.” Mayor DiBlasio sees spending on eviction defense as cheaper than paying for shelter. Unlike NYC, cities and counties in Ohio don't have that incentive. In Ohio homeless services are not driven by need...but by the amount of Federal funding available. (Remember the lead crisis-same system-Ohio only does as much lead poisoning prevention as they can pay for with Federal grants.) 

Besides homelessness, there's the problem of no show, default 2nd causes and credit “dings.” 
Tenants have this idea that if they just move, they will be OK and so they scurry around to find alternatives when they get a 3 days notice to vacate. A “cut and run” strategy can have some really harmful effect. While many landlords are willing to write off unpaid rent against the cost of filing a court eviction, some will use the court as a collection agency using a little understood provision in Ohio Law known as a 2nd cause of action. While tenants think of court eviction as “gotta move” that's only the 1st cause. 2nd Cause is a court case for monetary damages such a unpaid rent and charges. When a tenant does a “cut and run” and fails to respond to a 2nd cause claim, the court enters a default judgment in the amount requested by the landlord. So now the tenant has a judgment for money damages as well as an eviction on her/his credit record. 

Another hidden cost of “cut and run” is a practice described in Matthew Desmond's book and commonly practiced in Ohio eviction courts: “writ to issue.” This can happen when the landlord's lawyer meets with the unrepresented tenant in the hallway outside of the court and strikes a deal for the tenant to pay up an arrearage over time (often augmented with late charges and court and attorney fees.) Tenant leaves thinking that the eviction is “taken care of” but the landlord's lawyer goes before the judge and get the eviction order confirmed by the court. With the eviction ordered, anytime the tenant strays from the hallway agreement, landlord can march down to court and get a set out order without having to file an eviction again. PS: Don't ask for repairs while you are under a “writ to issue” agreement. 

Long term costs of involuntary displacement are hard to measure, but researchers are pretty sure that household insecurity has many psychological and practical impediments to future success. "Evicted" author Matthew Desmond has a paper documenting these social costs of rental instability,

Finally, there is a cost to the justice system when a sizable sector of the population knows that the system is rigged against them. Ingrid Arriaga of the Legal Aid Foundation of Los Angeles writes a response to an op/ed in the Los Angeles Times, “Far too often, we see tenants who were never properly served. The only remedy these tenants have are the “delaying tactics” and “games” that columnist David Lazarus condemns. Tenants have the right to defend themselves in court and hold landlords accountable to strict laws that were created to maintain a fair process.”  In fact, the op/ed to which Ms. Arriaga displays the arrogance and entitlement of a landlord who believes that the eviction system is designed to serve his business interests...not social justice. Cleveland landlord Bert Stratton makes a similar plea in the New York Times ( “I’m Not Evil. I’m a Landlord”), but in his narrative he braggs about his personal access to court personnel which he uses as a tool in his business model. Tenants don't generally have that kind of access. 

Who will lead efforts to expand the “right of counsel” in eviction in Ohio? 
  • Church, business, health, education leaders all have a vested interest in stable households and communities. Each has a story to tell about families and communities torn apart by “churning” of rental households 
  • Social service providers bear the direct costs of relocation which are reflected in staff time for counseling and relocation assistance and cash for security deposits, rent, utility hookups and moving costs. Social service agencies should be advocates for eviction reform, except that in their day jobs they are beholden to housing providers who help out in cases of displacement. But even if agencies aren't in a position to act, individual social workers have a professional duty to witness publicly to the need for reform. 
  • The legal community, for whom eviction on demand undermines the credibility of the justice system, should play a leadership role in supporting fairness in the eviction system.
  • Elected leaders whose communities are spiraling downward by the inequitable rental housing systems. With the hollowing out of the middle class, the dream of stable homeownership is gone, but there's no stable system that is ready to replace them.      
  •                                                                   Posted March 13, 2016
 
 What's News?

March 7, 2017
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