Federal Funding Charts the Path for Local Eviction Right-To-Counsel Efforts

Our country has been mired in a housing crisis for many years. In an ordinary year, there are at least 3.6 million eviction cases. Countless more tenants are illegally evicted through utility shutoffs, lockouts, and physical threats. And still more self-evict after receiving a landlord’s notice to vacate.

COVID-19 has exploded the crisis into a catastrophe, with as many as 40 million renters at risk of eviction at the peak of the pandemic. Even though the pandemic has begun to ease, 40 percent of the lowest income renters are currently reporting no or slight confidence in ability to pay rent. The Government Accountability Office has reported that the loopholes and enforcement issues with the Centers for Disease Control and Prevention’s eviction moratorium have allowed many evictions to continue. Emergency rental assistance provided by Congress, while urgently needed, has still not reached many tenants at risk of eviction.

This crisis is not experienced equally by all Americans. The Eviction Lab has found that Black tenants in an average year face eviction twice as often as white tenants, and a Consumer Financial Protection Bureau report revealed that Black renters have been twice as likely as white tenants to report being behind on rent during the pandemic.

Tenants facing eviction stand to lose virtually everything that matters. Evicted tenants who become homeless often find themselves arrested or in an emergency room. Whether homeless or not, evicted tenants who do not quickly find another home may lose their belongings, their children (due to not having a stable residence), and their jobs or access to their children’s schools (if forced to relocate out of town). And an eviction is often called a “scarlet E” because it makes finding new housing, especially safe and habitable housing, incredibly difficult.

There is a solution: the overwhelming evidence demonstrates that legal representation for tenants addresses this crisis by significantly improving eviction outcomes even where the majority of cases involve nonpayment of rent. The data is especially stark in cities that have enacted a right to counsel for tenants. In New York City, 86 percent of tenants with counsel remain in their homes; in San Francisco it is 67 percent. In Cleveland, 93 percent of represented tenants who sought to avoid an eviction or involuntary move succeeded. Yet, despite the dizzying array of consequences for tenants, fewer than 10 percent of tenants on average have access to counsel, compared to 90 percent of landlords.

Now, after years of advocacy by tenant organizers and attorneys, state and local lawmakers are increasingly providing a right to counsel for tenants facing evictions. Seven cities have already enacted such a right and eight states are considering legislation this year.

But some lawmakers still get stuck on cost. Given the need to protect the array of basic human needs at stake, ensure fundamental fairness, and advance race equity, cost considerations should not be paramount. Numerous studies have found that a right to counsel will save city and state governments far more than it costs them. Still, questions persist about how to pay for legal representation at the outset.

To date, the answer from cities that have enacted a right to counsel has mostly been general revenue, although some jurisdictions have looked to generate new funding streams: Boulder, Colorado, added a $75 landlord excise tax on rental units, while pending bills in several states would raise their unusually low eviction filing fees closer to national standards.

The federal response to COVID-19 provides states and localities with a broad array of new federal funding that can contribute to right-to-counsel laws for multiple years, long enough for the right to become institutionalized and easier to support financially in the future.

First, the CARES Act, signed into law on March 27, 2020, established three relevant funding pots: the $150 billion Coronavirus Relief Fund; $5 billion in Community Development Block Grants, which must be spent within a six-year “period of performance”; and $4 billion in Emergency Solutions Grants, which are allocated to cities to help people experiencing or at risk of experiencing homelessness and must be spent by September 2022. To date, over two dozen cities and states have funded tenant representation or right-to-counsel efforts using one or more of these CARES Act pots, with amounts ranging from $50,000 to over $8 million. And many jurisdictions still have unspent CARES Act dollars.

Second, the 2021 Consolidated Appropriations Act, which became effective on Dec. 27, 2020, provided $25 billion in Emergency Rental Assistance Program (ERAP) funds for households impacted by COVID-19, giving authority to the Treasury Department to disburse the funds to state and local governments. This first tranche of ERAP money originally had a spending deadline of December 2021, but it was extended to Sept. 30, 2022. The American Rescue Plan Act added another $21.5 billion to the ERAP pot, which can be spent at least until Sept. 30, 2025. Both bills allow up to 10 percent of the funds to be spent on “housing stability services,” and Treasury Department guidance defines this to include services that “enable eligible households to maintain or obtain housing … [such as] attorney’s fees related to eviction proceedings.” No state received less than $200 million in the first round or less than $154 million in the second round. And in many states, the amount provided far exceeds the state’s projected rent debt. But even in states that received a proportionate amount, legal representation can help tenants apply for rent assistance and delay any evictions that landlords may seek in the interim.

Finally, the American Rescue Plan created a $350 billion Fiscal Recovery Fund (FRF) to help state and local governments redress economic harms caused by COVID-19 through Dec. 31, 2024. The House Committee on Oversight and Reform has already posted approximate funding estimates for states, cities, counties, and tribal governments. The allowable uses of these funds are intentionally broad, and authorize jurisdictions to respond to COVID-19 and address its economic effects by transferring funds to nonprofit organizations, which could include legal aid organizations. Some jurisdictions are already planning to use this FRF money for right to counsel.

Lawmakers in many jurisdictions support providing a right to counsel but hesitate to introduce legislation without knowing how to fund it. The federal government has provided some viable answers, and the time is now to enact such a right in order to protect families, address the disproportionate impact on communities of color, and bring housing stability to millions in the future.

John Pollock is a staff attorney for the Public Justice Center who has served since 2009 as the coordinator of the National Coalition for a Civil Right to Counsel.