How Tenants’ Right to Counsel Can End Inequality in the Eviction System—and Save Lives

At the outset of the COVID-19 pandemic, elected officials across the country issued eviction moratoriums to keep families and individuals safely housed. They frequently cited the relationship between job and wage loss and the increasing risk of eviction. As early as March 2020, decision makers recognized the importance of keeping people safely housed to prevent the spread of COVID-19. 

However, these protections lapsed or were eroded prematurely, paving the way for evictions. Even with a federal moratorium, issued by the Centers for Disease Control and Prevention in September, landlords have filed hundreds of thousands of evictions. Because of inconsistent state adoption and gaps in protection, families continue to face eviction nationwide. 

No matter the outcome of a case, the record of an eviction filing haunts families and individuals. Eviction permanently scars rental history and makes it harder to rent, borrow money, and buy a home. Since the majority of states don’t seal evictions, landlords and public housing authorities regularly screen for, and reject tenants with, a history of eviction. In many cases, families who were eligible for protections were unaware of their rights or how to exercise them. In others, “self-help evictions” that skirt the judicial process by forcing tenants out through illegal means, such as changing locks, shutting off utilities, or removing doors, are still occurring during the pandemic. 

Yet, the vast majority of tenants lack legal counsel in housing court to address these barriers. In contrast, landlords are almost always represented by attorneys. Without access to counsel, tenants may not have the ability to identify and raise potential defenses or navigate the myriad laws that could result in a dismissal, a reduction in the amount of rent owed, or a judgment in the tenant’s favor. This is part of why the vast majority of tenants lose their cases and why default judgments—when tenants don’t appear in court—remain high across the country. And losing for any reason means eviction, along with all the potential consequences that go with it: homelessness, poorer physical and mental health conditions, job loss, and an eviction record that will make obtaining future housing extremely difficult. For children, eviction is particularly devastating and is associated with emotional trauma, food insecurity, academic decline, lead poisoning, and decreased life expectancy. Pregnant women who are evicted are more likely to have adverse outcomes, such as preterm births and low birth weight babies. During the pandemic, evictions could result in COVID-19 infection or death. 

The injustice of eviction affects Black and Latinx renters the most, making the right to counsel in eviction proceedings a matter of both housing and racial justice. In a nationwide study, the Eviction Lab at Princeton University found that landlords disproportionately threaten Black and Latinx renters with eviction. A University of Washington study, for example, found that in the state’s two most populous counties, Black and Latinx tenants were nearly seven times more likely to be evicted than white tenants. And because Hispanic people have suffered the highest rates of job and wage loss during the pandemic, they are also more likely to face hardship in paying rent. 

When tenants are represented by legal counsel during eviction proceedings, the outcomes change significantly. After New York City established a right to counsel at eviction proceedings, 86 percent of tenants with representation were able to remain in their home. In San Francisco, 67 percent of the tenants receiving representation (and 80 percent of African American tenants) remained stably housed. And in Cleveland, during the first six months of having a right to counsel, 93 percent of represented tenants avoided eviction or an involuntary move.  

Given the clear and significant benefits of counsel, including increased housing stability and access to justice, there is growing momentum to make the right to counsel a reality for more people. More and more jurisdictions—at the state and city level—are establishing a right to counsel to ensure a tenant’s home cannot be taken away without a meaningful review of their rights and protections. As local jurisdictions work to establish this right, state and federal governments can provide funding to make it happen. Policy makers in multiple states and members of Congress have introduced bills in the past that would support the right to counsel in civil cases, including housing.

Once these programs are established, the return on investment will be quickly realized. Studies by the advisory firm Stout Risius Ross have shown that right-to-counsel laws actually save jurisdictions money. For example, Baltimore’s effort is expected to cost $5.7 million annually, but is projected to save $35.6 million in costs associated with evictions. By keeping people in their homes, the city and state will avoid costs related to homeless shelters and transitional housing. Evictions avoided with legal assistance reduce Medicaid costs associated with emergency room visits or in-patient care for those experiencing homelessness, as well as the increased costs of foster care for children who are forcibly removed from their families after losing housing. These cost-benefit analyses not only show that right to counsel is financially feasible for cities and states, but represent the preventable cascade of consequences that befall those who are stripped of their homes through eviction proceedings. 

The benefits of legal representation in eviction proceedings can be enhanced with other critical tenant interventions, like eviction record sealing, rent regulation, robust code enforcement and “just cause” and “clean hands” laws that prevent veiled discrimination and require landlords to comply with habitability and other laws prior to initiating an eviction. And during COVID-19, legal assistance can help tenants secure and effectively exercise rights under moratoriums that require proving an affirmative defense, like COVID-19 hardship or other eligibility. Legal representation can also help them gain access to the billions of dollars in financial assistance appropriated by Congress. 

In light of the overwhelming and extreme risk of eviction, which will continue to grow without substantial interventions, the need for an expanded civil right to counsel to close the eviction “justice gap” is extraordinary. Federal and state governments can end the eviction crisis and the inherent injustice in eviction that is causing irreparable harm to adults and children. Among the primary interventions, the civil right to counsel is critical to the attainment of housing and racial justice in the U.S. and, especially in the pandemic, a life-saving intervention. 

Emily Benfer is a visiting professor of law at Wake Forest Law, founding director, Wake Forest Law Health Justice Clinic, and chair of the American Bar Association COVID-19 Task Force Committee on Evictions.