The Movement That Is Upending Landlords’ Power Over Tenants
There has been a ‘parabolic increase’ in cities and states giving tenants a right to counsel to help fight evictions.
Abigail Savitch-Lew Jun 01, 2021
More and more cities, states, and counties are adopting or considering a right to free legal representation for tenants facing eviction.
On April 22, Louisville, Kentucky, became the ninth city, and the first in the South, to pass legislation to establish a right-to-counsel program; it will provide free legal representation to low-income families facing eviction who have at least one child. That same day, Washington became the first state to enact its own landmark program for low-income tenants. Maryland became the second state to do so on Friday.
Connecticut’s legislature passed a bill last week that now awaits the governor’s signature, and eight other states have right-to-counsel bills pending. In Denver, a City Council bill and a ballot initiative to fund tenant legal representation are both under discussion. Several cities, counties, and states are drafting legislation, and there are dozens more interested in similar measures that are in conversation with the National Coalition for a Civil Right to Counsel, according to John Pollock, coordinator of the organization. Pollock says that in recent years, interest in this issue has seen “a sort of parabolic increase.”
In 2017, New York became the first city to legislate a right to legal representation for low-income tenants facing eviction. Over the next three years, San Francisco; Newark, New Jersey; Cleveland; and Philadelphia passed similar legislation. During the COVID-19 pandemic, Boulder, Colorado; Baltimore; Seattle; and Louisville have followed suit. While the vast majority of the country does not have right-to-counsel laws, cities like Houston; Santa Monica, California; and Rochester, New York, have launched pilot programs, and New Jersey has launched a pilot in three counties.
Many factors have driven the movement’s growth, advocates told The Appeal, but chief among them has been the power of community organizing, the emergence of data from cities that have adopted right-to-counsel measures, and the pandemic itself.
“We lived with a pretty terrible paradigm for home renters for a long time—where nobody had any interest in working on the issue, where there was a finite amount of rental assistance,” said George Eklund, director of education and advocacy at the Coalition for the Homeless in Louisville.
“Because of the pandemic and because we saw how essential housing is to staying at home [and distancing] … more people care about this issue,” he said. “It’s an opportunity for us to really think about how we’re treating home renters.”
After the Great Recession fundamentally reshaped the United States’s housing market, an increasing share of Americans became renters, with the number of cities dominated by tenants more than doubling. In the years since, families have increasingly struggled with rising rent burdens, and data analyzed by the Eviction Lab found nearly a million evictions every year from 2003 to 2016. Black households are disproportionately affected.
“Renters’ rights groups, tenant organizing groups have arisen all over the country because of the need, because of the conditions,” said Susanna Blankley, coalition coordinator for the Right to Counsel NYC Coalition. “We have always said that evictions are violent and evictions are unjust—that evictions should not be the solution that we normalize to address the imbalance of what landlords want to charge and what tenants can pay.”
The pandemic is helping more people understand evictions are not an individual problem, but a societal and political problem, she says. Millions of renters are at risk of eviction, and landlords have used loopholes in the federal and state moratoriums to continue filing cases. In addition, handling an eviction case was never easy, and the legal complexity of overlapping state, local, and federal moratoriums and the constant shifts in these laws have “made it virtually impossible for lawyers to keep up with what exactly is required, let alone tenants,” says Pollock.
Since the start of the pandemic, four cities and two states have legalized a right to counsel.
Adding fuel to these efforts, three cities that had legalized the right to counsel and funded a substantial program before the pandemic have released encouraging data. In New York City, 86 percent of tenants who received legal representation were able to stay in their homes in the 2020 financial year. The number of eviction cases filed by landlords over a six-year period had the largest decrease between 2018 and 2019—nearly 17 percent—after right to counsel was written into law. (New York City’s program was being phased in by July 2022 but, in response to the pandemic, the mayor signed legislation in May that moved that date to June 1 this year.)
Eviction case filings also declined in San Francisco, falling 10 percent from 2018 to 2019. For those tenants who received legal representation, 67 percent were not evicted. A report on the first six months of Cleveland’s Right to Counsel program found that 93 percent of tenants who were represented by an attorney and tried to avoid an eviction or involuntary move were able to avoid displacement.
Seattle City Councilmember Kshama Sawant cited this data from New York City and San Francisco as she urged her colleagues to pass a right-to-counsel bill, which they did in March. And in Tulsa, Oklahoma, the City Council pointed to the cost-effectiveness of other municipalities’ programs in considering a similar ordinance.
“The success from the programs that have come out. … It’s overwhelmingly positive, showing how it does exactly what we always said it would do,” said Pollock. He says this data and cost benefit analyses that show the potential government savings from right to counsel “have helped shift the discussion.”
Instituting a legal right to counsel is crucial, Blankley says, because it’s the existence of that right that upends the power imbalance between landlords, the majority of whom are represented by attorneys, and tenants. Right to counsel makes landlords think twice before filing an eviction case as a means of threatening and removing a tenant even when the law isn’t on the landlord’s side, she argues.
Blankley and other advocates also want to see the right expanded to tenants regardless of income, as is the case in San Francisco, Boulder, and Baltimore. (During the pandemic, New York City has also, in practice, been waiving income restrictions.) Removing income eligibility rules, she says, helps ensure that everyone who needs counsel can receive it and removes the shame some might feel about using the program. Without a fully universal right, Pollock believes landlords may prefer to rent to middle-income renters who don’t receive legal representation, adding a further barrier to housing equality. Advocates point out that in San Francisco, where the program was open to tenants regardless of income, 85 percent of those represented were extremely low- or low-income tenants—evidence that even if cities remove their income eligibility rules, they will still be serving the most vulnerable populations.
In addition, a growing number of places are using federal relief funds—anywhere from several thousand to millions of dollars—to hire more lawyers to represent tenants facing eviction. In Connecticut, where the state legislature has just passed a right-to-counsel bill that now awaits the governor’s signature, the governor has proposed using $20 million in relief funds for tenant attorneys. Pollock is hopeful other governments that aren’t as close to legislating a right to counsel will see the impact from making significant investments in tenant counsel during the pandemic and move to adopt the right to counsel.
Advocates also see enacting right-to-counsel legislation as just one part of protecting tenants from evictions. Noelle Porter, director of government affairs at the National Housing Law Project argues that the exact path to increasing tenant representation and power might need to look different in different jurisdictions.
“In some communities that will look like going after a right-to-counsel statute, and in some communities that might look like going after funding to increase attorneys in the community [as well as funding their training], and in some communities it might look like tackling bad landlord-tenant law before they tackle right to counsel or representation,” she said.
Update: This article was updated to reflect that a right to counsel bill in Maryland has become law and that the Connecticut legislature has passed a right to counsel bill.
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