This week, on the last day of Maryland’s legislative session, lawmakers passed a bill that would provide access to counsel for low-income tenants facing eviction. The bill now heads to Republican Governor Larry Hogan. If Hogan signs it, Maryland will be the first state in the country to establish an access-to-counsel program for renters facing eviction.
Nationwide, most tenants are not guaranteed a right to counsel in housing court, as they would be in a criminal case, but housing justice advocates are working to change that so more people remain in their homes. During the COVID-19 pandemic, landlords have filed for more than 310,000 evictions in the five states and 27 cities tracked by the Eviction Lab at Princeton University.
“The pandemic has shown us the vulnerabilities and the uneven playing field that tenants have compared to landlords,” said Senator Shelly Hettleman, a Democrat and a sponsor of the Senate version of the Maryland bill. “Our eviction process is an extension of the business practice of landlords and that is something that I think needs to change.”
Since the start of the year, lawmakers in eight states, including Maryland, have introduced bills to provide counsel for certain renters facing evictions. Limited moratoriums at the federal and state levels have not prevented evictions in Maryland. Between July and November of last year, more than 2,500 households were evicted in the state, according to the Maryland District Court.
“A lot of people have defenses to stay in their homes,” said Delegate Wanika Fisher, a Democrat and a sponsor of the House of Delegates’ bill. “But you won’t know those defenses if you don’t have a lawyer.”
If enacted, the Maryland bill will create, over a four-year period, a statewide program for households with an annual income that is at or below 50 percent of the state’s median household income, which was estimated to be just over $95,500 in 2019.
“This is a matter of basic economic and race equity,” said John Pollock, coordinator for the National Coalition for a Civil Right to Counsel. “This can’t wait.”
If Hogan vetoes the bill, the legislature likely has enough votes for an override, according to Fisher. But because this year’s session ended on Monday, the legislative leadership can either override the governor’s veto by calling a special session or waiting until the legislature returns in January 2022.
If enacted, the program does not have a dedicated funding source, which must be determined later, Matt Hill, an attorney with the Public Justice Center, told The Appeal. A separate bill, House Bill 31, would have funded a Right to Counsel in Evictions Special Fund through increased civil court filing fees. But after passing both chambers, legislators did not reconcile the differing versions before the legislative session ended. Fisher said the bill would likely be reintroduced next session.
Aid from the federal government will help pay for the program, said Fisher.
The final version of the bill establishes a tenant’s access to counsel, but the original bill deemed counsel in eviction proceedings a right. The original bill, introduced in January, was titled, “Landlord and Tenant – Eviction Action – Right to Counsel” and the text stated in part that “tenants facing an eviction from their home shall have a right to legal representation in eviction proceedings.” In the final version that was sent to the governor, the bill is titled, “Residential Tenants – Access to Counsel.” Its purpose is to establish that “certain individuals shall have access to legal representation in eviction proceedings.”
Housing justice advocates were disappointed about the terminology change, but in substance, both versions mandate that tenants who meet income requirements are provided counsel.
“It’s extremely important that this is a right,” said Pollock. “But Maryland’s bill does say that tenants will get counsel and that’s the critically important thing and why this bill is still a huge step forward.”
The final language is similar to ordinances adopted in New York City and Cleveland, which state that qualifying low-income tenants facing eviction shall have access to counsel in eviction proceedings. Studies of both programs show that more than 85 percent of represented tenants were able to stay in their homes.
“We would have preferred to have some of the rights language in the bill,” said Hill. But, he said, “the goal is to make sure everyone has access to counsel.”
Last year, the Baltimore City Council approved a program, to be implemented over a four-year period, that will grant counsel to all residents facing eviction. The city’s eviction rate is more than twice the national average, according to the Evictions Study, a project of University of California, Berkeley and University of Washington researchers. An estimated 96 percent of Baltimore City landlords were represented in eviction proceedings either by an attorney or an agent, compared with 1 percent of tenants, according to a study of a sample of evictions from 2019.
The statewide bill, if enacted, “is going to affect … people of color in poor communities,” said Fisher. “They’ve been the person getting your groceries or your cashier or the person serving you.”
Several cities have proposed initiatives that would guarantee counsel to tenants facing eviction, including Denver and Tulsa, Oklahoma.
“The vast majority, almost all of landlords are represented in eviction proceedings and nearly no tenants are,” said Delegate Vaughn Stewart, a Democrat and sponsor of the Maryland bill. “When you’re dealing with something as violent as an eviction it only makes sense that defendants, at least have some sort of shot. The statistics are extremely clear here that tenants do a lot better when they’re represented.”
This year, lawmakers in states as varied as South Carolina, Nebraska, and Washington proposed right-to-counsel bills. A majority of American voters, including Democrats and Republicans, support a right to counsel in eviction proceedings, according to a poll from Data for Progress and The Lab, a policy vertical of The Appeal. Momentum is building to ensure every tenant has a right to counsel, said Pollock.
“Eight states have bills for a statewide right to counsel,” he said. “That’s never happened before.”
Washington State, Pollock said, “is right on the heels” of Maryland. Both chambers have passed legislation that requires that counsel be provided to, among others, tenants who receive certain benefits, like food stamps, or have an income at or below 200 percent of the federal poverty line. The chambers are now reconciling their differing versions.
“There’s no justice right now in the courts,” said Pollock. “If you don’t have a lawyer, it’s a foregone conclusion you’re going to lose no matter what the facts are or the law.”