Most Tenants Facing Eviction Don’t Have a Right to an Attorney. Lawmakers Want to Change That

During housing court on Tuesday in Dane County, Wisconsin, a tenant, who is non-verbal and facing eviction, didn’t appear at his virtual hearing. 

“He doesn’t know American Sign Language,” Commissioner J. Alberto Quiroga reported to the landlord’s attorney, who was displayed in a square underneath the commissioner’s in the Zoom meeting. “The only way he responds is either, ‘No’ or ‘I know.’ So the court’s concerned with his competency.”

The man lacked any assistance, including an attorney.

“I’m not going to find him in default when he’s disabled,” said Quiroga, who set the case for trial next month. Typically if a tenant does not appear in court, a default judgment is entered in favor of the landlord.

“That’ll give him some time to find a counsel, get an advocate,” he said. “I can’t find him in default under these circumstances. I just think that would be egregious.” 

The commissioner’s decision was rare. In another two eviction cases heard that day, the tenants didn’t sign on to the virtual hearing and the commissioner entered a default judgment. Studies of several large cities’ eviction data have shown that landlords win default judgments in a majority of eviction cases.  

Like most tenants facing eviction across the country, Dane County renters are not guaranteed a right to counsel in housing court. Tenants are left on their own to navigate an evolving maze of federal and local directives that dictate when and how an eviction can occur, a legal landscape that has become infinitely more confusing during the COVID-19 pandemic. Local studies in recent decades have repeatedly shown that a large majority of landlords have counsel in housing court, while a small minority of tenants have representation. 

Prior to the pandemic, Debra Puzzo, a co-director of the housing program at the Tenant Resource Center, said she went to the Dane County courthouse to make sure tenants and landlords knew their rights. When necessary, she directed tenants without representation to pro bono attorneys. But with virtual hearings, those referrals have been nearly impossible to make, she said. Proceedings move so quickly, she said, that if she speaks to tenants at all, it’s usually after they’ve already agreed to a payment arrangement or have an eviction trial coming up.

“It’s a very scary situation for tenants because they’re really cut off from even the meager resources that were available,” said Puzzo. 

One of President Biden’s first executive actions was to extend the federal moratorium on evictions to March 31. The moratorium, first imposed last spring, hasn’t completely halted evictions. Since the start of the pandemic, landlords have filed for more than 245,000 evictions in the five states and 27 cities tracked by the Eviction Lab at Princeton University.

But momentum is building in cities, states, and in Congress to ensure every person facing eviction has an attorney. A majority of American voters, including Democrats and Republicans, support a right to counsel in eviction proceedings, similar to the right that exists for criminal cases, according to a new poll from Data for Progress and The Lab, a policy vertical of The Appeal. 

In criminal court, an attorney is provided to those who can’t afford one, but no such universal right exists in housing court. The U.S. Supreme Court issued two separate rulings, in 1981 and 2011, that deny a right to counsel to petitioners in civil cases. In the first case, a parent was at risk of losing his parental rights; in the second, a parent had been repeatedly jailed for not paying child support.  

“The Supreme Court has been incredibly hostile to the concept of right to counsel in civil cases,” said John Pollock, the coordinator of the National Coalition for a Civil Right to Counsel. “If you don’t get a right to counsel when your parental rights are being severed and you don’t get a right to counsel when you’re going to jail, it’s hard to imagine what you do get a right to counsel for in their view.” 

Instead of seeking a right to counsel through the courts, housing rights advocates have pursued a legislative strategy, said Pollock. Without an attorney, a person may lose their home, even if there are legal protections in place, said Pollock. 

“The cases are not simple,” said Pollock. “The tenant may have paid the rent and the landlord may be saying they didn’t. … If the tenant didn’t pay the rent, they may have defenses as to why they didn’t pay.”

An attorney can make the difference between stability and catastrophe for families, he said. 

“These people can lose everything in an eviction,” said Pollock. “They can lose their kids potentially. They can become homeless. They can get jailed. They can lose their jobs.”

But despite the high stakes, no right-to-counsel programs existed at the city, state, or federal level until 2017. That year, New York City Mayor Bill de Blasio signed into law the first program in the country. Six more cities have since followed suit: Philadelphia; Newark, New Jersey; Boulder, Colorado; San Francisco; Cleveland; and, most recently, Baltimore. 

A study of New York City’s program, which is being phased in over five years, showed that from July 1, 2019 to June 30, 2020, 86 percent of households with counsel were allowed to stay in their homes. New York’s program provides representation based on a tenant’s income and ZIP code.

In 2018, San Francisco voters approved Proposition F, which guarantees legal assistance to all people facing eviction. However, before the pandemic even began, not all tenants were provided counsel because of a shortage of attorneys, according to the Mayor’s Office of Housing and Community Development. A study of the city’s program showed a decrease in eviction filings by 10 percent between 2018 and 2019, and 67 percent of represented tenants stayed in their homes.  

“When people have counsel it completely changes what happens in housing court,” said Pollock. 

Cleveland’s program, which launched last summer, provides counsel to tenants who are at or below the federal poverty line and have at least one child under 18 in the home. Ninety-three percent of represented tenants seeking to avoid an eviction or other involuntary moves were successful, according to a report on the program released last month. 

Supporters of Baltimore’s program expect to see similar results. In November, the City Council approved a program, to be implemented over a four-year period, to 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 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. This power imbalance affects the entire eviction process, said Pollock. 

“It’s not just that tenants don’t have counsel, it’s that the landlords always have counsel in these cases,” said Pollock. “The courts essentially are really just there for the landlords. They’re like rent collection devices for the landlords.”

Tenants may not be able to attend the hearings because they cannot arrange childcare or take time off work, and don’t have an attorney to go in their place, said Pollock. For hearings that have moved online, tenants may not have a phone, computer, or reliable internet connection, he explained. And for some who don’t appear in court, he said, they feel an eviction is inevitable. 

“If you know the outcome is a foregone conclusion whether you participate or not, why would you bother?” said Pollock.

Black tenants are disproportionately affected by evictions, which makes a right to counsel a matter of racial justice, according to housing rights activists. Mirroring a national trend, evictions in Baltimore, for instance, have historically fallen hardest on Black residents. Between July 2018 and June 2019, Black Baltimore tenants were evicted at a rate estimated to be three times higher than white tenants, according to the Evictions Study.

In response to advocates’ demands, lawmakers in several states are sponsoring right-to-counsel legislation, from city councils to state legislatures. Federal legislation to guarantee a right to counsel has not yet been introduced, but the stimulus bill that passed in December included $20 million to fund existing tenant representation programs.

City councils in Fresno, California; Seattle; and Tulsa, Oklahoma, are considering similar ordinances. Last month, a hearing was held on a right-to-counsel bill proposed by Seattle City Councilmember Kshama Sawant, but no further action has been taken. 

Tenant right-to-counsel bills have been introduced in seven states, including Washington state, Nebraska, and Maryland. The proposed legislation differs, primarily, in who would receive representation. Nebraska’s legislation, unlike the other six statewide bills, would grant a right to counsel for anyone in an eviction proceeding. A committee hearing was held earlier this month.  

In Washington, counsel would be provided to, among others, those who receive certain benefits, like food stamps, or have an income at or below 200 percent of the federal poverty line. (It would also prohibit evictions for unpaid rent that accrued between March 1, 2020, and the end of the governor’s moratorium on evictions.) The bill has already cleared one hurdle—it passed out of the Senate Housing Committee earlier this month, and on Tuesday a hearing was held before the Ways and Means Committee. 

“When the moratorium here ends on March 31, in the absence of legal representation, in the absence of legislative intervention, there will be a tsunami of evictions,” said Jim Bamberger, director of the Office of Civil Legal Aid based in Olympia, Washington.

Last month, a hearing on Maryland’s right-to-counsel bill was held before the Senate Judiciary Committee, but its members have not yet voted. The bill would create, over a four-year period, a statewide right-to-counsel program for households with an annual income that is at or below 50 percent of the state’s median income. On Wednesday, a hearing on the companion bill occurred before the House Judiciary Committee.

Between July and November of last year, more than 2,500 households have been evicted in Maryland, according to the Maryland District Court.

“The laws and the protections that we put in place are only as good as the enforcement,” said Matthew Hill, an attorney with the Baltimore-based Public Justice Center. “Providing folks access to counsel to help balance the scales of justice a little bit is one way that we can actually enforce the legal protections that are out there.”