Examining the Tenant Right to Counsel Rollout Landscape

A report examining the unique issues faced by stakeholders in the tenant right to counsel process in New York City and San Francisco

According to Princeton University’s Eviction Lab, New York City has an average of 99.3 evictions per day, a number similar to many large cities across the country. Despite the different issues plaguing these cities, most wish to decrease the number of families who lose their place of living or at least, give them a fair chance to stay within their homes.

One way that New York City and San Francisco have done that is by implementing tenant right to counsel — where those who are being evicted receive free legal counsel to guide them through the process.

This idea has been embraced by many different stakeholders, as traditionally court cases favored the landlords who almost always have legal representation in their cases. This report will describe the landscape around the rollout to tenant right to counsel and describe the issues both cities are facing, from interviews and reports from stakeholders.

Introduction

Over the last 50 years, the housing costs for renters have grown exponentially more than their incomes. This has been a main cause of a nationwide affordability crisis, that is most noticeable in major cities such as New York, San Francisco, and Los Angeles.

Current data shows that the vast majority of poor urban renting households spend at least 50% of their income on housing costs- with 25% spending more than 70% of their income. Many of these families are also unable to access the social services that could support them. This means if an emergency were to happen, many households would not be able to continue to pay for their housing. Millions of Americans are at risk of housing insecurity, including becoming homeless through eviction.

What is an eviction, exactly?

An eviction occurs when a landlord decides to expel tenants from the property they own. Evictions usually take one of two forms:

1. Formal evictions where the landlord files a notice and takes the process through the court system, to get the legal mandate from the court to expel the tenant and take the property back (this can also be called an Unlawful Detainer action), or,
2. Informal (or unlawful) evictions where the landlord decides to perform a lockout, stops giving services or repairs, or otherwise drives the tenants to leave the property without filing in court.

Informal evictions are extremely hard to track because there’s no trace. This articles focuses on responses to formal evictions, which also are hard to record because of bureaucratic issues that hamper access to court records of eviction filings — as well as understanding what actually happens to people at the conclusion of a court case.

(Side note: the difficulty in accessing data about formal evictions is partly borne out of a tenant-protecting policy, to keep past eviction records ‘masked’. Legislation for eviction masking intends to help people who have eviction records keep them hidden from future prospective landlords or others, who might discriminate against a person because of this record. It has the unintended consequence, though, of making it difficult to conduct research on housing case outcomes.)

The Eviction Lab at Princeton is pioneering the collection of data on formal evictions in the US, through collection of court records.

What is the court process of a Formal Eviction?

A formal eviction begins after the landlord files a notice to the tenant, alerting them that they are soon to be filing a lawsuit suing them for an eviction unless key conditions are addressed. It might be a notice around nonpayment of rent, violation of lease terms, or some behavior. This notice isn’t filed with the court, but serves to give the tenant a warning that gives them a few days (like 3 or 5 days) to deal with the situation before the lawsuit is filed.

After the notice, then the landlord has to wait a mandatory number of days. If the tenant doesn’t satisfactorily respond to the notice by then, then they can file a lawsuit in civil court to evict the tenant from the property and take it back. The landlord is the plaintiff (filing the lawsuit) and the tenant is the defendant. Defendants in civil court don’t have the right to a free lawyer (unlike in criminal court).

Once the lawsuit is filed, the landlord has to serve a copy of the lawsuit (the Complaint) to the tenant so that they know the details of what the lawsuit is about. They or the court will also give a Summons to the court, that tells them when the first hearing for the lawsuit will be. It could be within 5 days or 2 weeks. At this hearing, the judge can decide whether to order the tenant to leave the property, to let them stay, or to have another hearing with more process.

The procedures and timelines of an eviction differ between California and New York, but the point is the same: it is a fast process.

In many jurisdictions, a large number of tenants do not appear at the court hearing. This is called ‘default’ — when the tenant doesn’t appear, the judge will most likely find that the plaintiff landlord wins by default, and will award them what they asked for in the lawsuit automatically. In San Francisco, the number of defaults in eviction proceedings is about 22%.

Why don’t many tenants come to court to respond to an eviction lawsuit? It can be for several reasons --

• lack of knowledge of their rights,
• not having legal counsel,
• not knowing the consequences of what happens if there’s a default,
• thinking they can simply move out of the home without going to court,
• being physically unable to attend, or
• a sense of resignation (which may, in part, result from misinformation, intimidation, and harassment aimed at tenants).

Whatever the reason, if they don’t appear at court, there will most likely be a default eviction judgment against them. They will have an eviction on their record and credit report; they will have to leave their home; and they might also be ordered to pay the landlord back a certain amount of money the landlord has asked for. In the eviction system, tenants generally do not receive preferable outcomes — and especially if they do not appear at the hearing.

Who is facing eviction in America?

Those at the highest risk of being evicted are already high-risk population — low-income women, especially low-income women of color have the highest risk of being evicted, as documented by the Eviction Lab. Domestic violence victims and single mothers with children also have a very high chance of being evicted.

This is doubly concerning when you consider the impact an eviction can have on lives beyond losing a home. Families can lose their possessions during this process, with things left on the curbside or moved into storage, only to be reclaimed if you pay a fee. Landlords screen for past evictions, which can prevent the family with an eviction mark on their record (the ‘Scarlet E’) from relocating to affordable, safe housing. People often lose their jobs, their children lose their schools, and health problems can follow suit. Evictions can cause people to lose their communities and their quality of life, as a driver into a pernicious cycle of poverty, perhaps irreversibly changing their lives.

Evictions also have perverse effects on the communities and cities themselves. They can raise homeless populations, destroy the makeup of communities, and disrupt bonds within these areas.

Right to Counsel as an eviction policy

Because of these broad-ranging social impacts, city policy-makers have realized they need to focus on proactive eviction interventions. In addition, there are organizers, legal advocates, and scholars who are interested in making the civil justice system more accessible — and are searching for policies (like Right to Counsel) that can promote access to justice.

City policy-makers and justice advocates and scholars have been looking to implement more upstream interventions to change tenant outcomes. Policy solutions include building more affordable housing, implementing rent control legislation, ensuring more evaluation happens in policy making, and giving free access to legal counsel, the Right to Counsel movement (which is a broader civil justice reform mission, with specific implementation in housing court).

Tenant Right to Counsel is an effort that wants to address how tenants are disadvantaged from the start, by giving them access to taxpayer-funded lawyers to help them fight evictions. This has been implemented by three cities in the USA; first, New York, and later, San Francisco and Newark.

In New York City, the effect was immediate. Tenants who received counsel were twice as likely to not be evicted. San Francisco has more recently begun its policy roll-out, and is just beginning to gather data about how the policy is performing. The next sections of the paper focuses on the specifics of each city‘s Right to Counsel roll-out, including the timeline, the tenant right to counsel guidelines, the stakeholders, and the problems that each jurisdiction faces.

New York City’s Right to Counsel

On August 11th, 2017, after a three-year long campaign, New York City passed a Right to Counsel bill, Intro 214B, which would ensure that low-income New Yorkers have free legal representation when facing eviction.

New York City was the first place to pass a law that provides tenant right to counsel and has shown to be fairly successful in the several years since. The program is offered in 20 zip codes right now and will be offered to the entire city by 2022. This tenant right to counsel also allows a tenant to sue their landlord in other cases in housing court, but currently, it’s only focused on eviction.

New York is the story of many other cities with a housing policy breakdown: highly populated, rising housing prices and many poor households losing their homes. However, the housing court, originally intended to be used by tenants to protect themselves from predatory landlords, has now shifted to be a tool that can be abused by the landlords for profit. Landlords can evict people from rent-regulated apartments, in hopes of charging future tenants more. Housing court policy allows this to slide through because of the trust it places in landlords.

It’s hard to say how many evictions are unjust; many tenants who are sued do owe rent, and can harm the landlord’s finances or property. But there are landlords who own many properties who exploit this system and take advantage of the tenants who are less likely to know how to fight back. This has been a major driving factor in tenant right to counsel: landlords had an upper hand in the housing court system that could be misused to harm individual tenants and the broader community. The policy goal was to give all tenants free legal counsel, so that this power imbalance in the court system could be counteracted and each party could have full due process and access to justice.

The main stakeholders in NYC tenant right to counsel are housing courts, tenants, the Mayor’s Office, the Civil Justice Coordinator and the lawyers. The Mayor appointed Jordan Dressler to Civil Justice Coordinator, to run the program of around 500 lawyers, whose services are funded by the Mayor’s office. The courts work as the space where most of the action happens, where the lawyer and tenant meet for the first time. The lawyers do most of the groundwork with the tenant.

New York City Right to Counsel has faced a number of programmatic and structural issues during its recent debut. The people providing the services must deal with tenants who don’t know their rights, the lack of infrastructure available for them, and many more issues in rolling out the programs to accompany the policy.

Tenants often are misinformed about what resources they can access, and only on their court date will they discover that they are able to see a lawyer. Attempts have been made to remedy that, mostly by hosting teach-ins and publicizing a list of tenants’ rights.

The other issue is more structural and harder to fix: space. Most of the courts are small, without much private space, thus it is hard for lawyers to accommodate their clients comfortably and deliver services effectively. They’re also crowded in certain courtrooms because only twenty zip-codes are involved. The space issue may be resolved given with near-term developments. The housing courts are planning to build bigger facilities, hopefully with these policy intents of greater legal access, lawyer consultation, and empowerment. The policy changes need to work in hand with service changes, education changes, and architectural changes.

Another challenge New York City is dealing with is the lack of lawyers. First, there is a relative dearth of lawyers who know much about housing courts. This leads to a major gap between services required and represented. It can be hard to recruit lawyers into this area. Even if subsidized by the Mayor’s office, it doesn’t pay as well as other law practice areas.

Finally, since there aren’t enough lawyers to go around, the eviction process is too quick for overworked lawyers to develop rapport with their clients (much like often happens in the criminal context, with overworked public defenders juggling huge case loads). This dynamic indicates that there’s a need for investing more money into the legal aid services providers.

The program has been running for two years and has been reported to be an astounding success. 84% of the tenants who had a lawyer stayed in their homes, which indicated that this program is in sync with the policy intent that motivated it.

However, as beneficial as tenant right to counsel is right now, there are more policy agenda items emerging from New Yorkers who want to improve it. These additional policy changes include:

1. Increasing the income eligibility level for those who qualify for Right to Counsel. Tenants with incomes of 200% to 400% of the federal poverty level make up 31% of the tenants in housing court, so doubling the income threshold would ensure almost all the households in housing court are receiving full legal representation.
2. Expanding the law to cover more eviction cases. This law, unlike the law in Newark, for example, doesn’t cover appeals. Without legal representation to defend the victories made, tenants will be left alone in their time of most need.
3. Supporting tenant organizing and education. Organizers in New York City want to ensure that landlords won’t harass tenants in other ways and that tenants will learn their rights. This would look like tenants knowing they can access a lawyer for a range of their cases and feeling safe, knowing they are protected by this system.

The first Right to Counsel program in NYC program has proven to be successful, given its constraints, and has provided a path forward for other jurisdictions to consider tenant right to counsel.

San Francisco’s Right to Counsel

On June 5th, 2018, San Francisco voters approved Proposition F, their version of the tenant right to counsel legislation. It calls for full-scope representation, within thirty days of an eviction notice or upon filing of an unlawful detainer. Unlike New York City, the legislation allows any tenant in the city, regardless of income level, to receive a free lawyer. It is also unique because it’s the first time a jurisdiction has passed this kind of law through a voter initiative.

The rollout is still ongoing and is expected that this summer, the tenant right to counsel will be in full swing.

San Francisco’s affordable housing crisis is one of the worst in the nation. Starting in the 1990s, San Francisco and the surrounding Bay Area have faced an intense housing shortage, culminating in San Francisco having the highest rent of any major US city. This was caused over decades by land use policies and housing construction lagging behind population growth and job creation.. Like in every major urban area, homelessness is a major issue in San Francisco, and evictions are one of the driving factors of it.

Some of the issues driving SF’s tenant right to counsel policy were related to concerns mentioned above — of high rates of self-representation in housing courts and high rates of default. Often, tenants didn’t know their rights and vacated their homes when they were not legally required to do so. Landlord attorneys would see what they could get away with and often backed off once a tenant got a lawyer. The legal services organizations didn’t have the staffing or funding to keep up with the need. Advocates were also motivated by rapid gentrification and the speed at which displacement was happening in low income neighborhoods.

The main stakeholders involved in tenant right to counsel have been tenant advocates, the Mayor’s Office of Housing and Community Development, legal service organizations, the state court system, and the tenants themselves. The Mayor’s Office granted $5.8 million dollars to 11 legal aid organizations -- Eviction Defense Collaborative, AIDS Legal Referral Panel, Asian Law Caucus, Asian Pacific Islander Legal Outreach, Bay Area Legal Aid, La Raza Centro Legal, Legal Assistance to the Elderly, Open Door Legal, Tenderloin Housing Clinic, and the Bar Association of San Francisco and its affiliated-but-separate nonprofit, Justice & Diversity Center.

The organizations went through a competitive bidding process to be chosen as providers. They were chosen based on their history of doing eviction defense work for years, if not decades. Many of them have been pioneers in legal work to defend against evictions. The Mayor’s Office of Housing and Community Development, as the funder, requires the legal organizations to provide funding reports to see how the policy and services are performing.

San Francisco’s issues with Right to Counsel roll-out are parallel to those in New York. According to advocates, a main issue is that San Francisco doesn’t have enough funding allocated to the program to make it as successful as it could be. In the San Francisco job market, it is difficult to hire and retain staff to work in the programs that a Right to Counsel depends on. More funding could help provide competitive salaries for the lawyers and others whose work is needed to provide the outreach, consultation, and representation to tenants.

The second issue faced by San Francisco is the same as New York City — there just is a lack of legal service providers and lawyers in housing/tenant practice. Lawyers don’t want to get involved in this as the pay is not good, and the hours are long. There is a lack of legal service providers who have the specific training recommended to be effective with housing courts, and the organizations don’t have enough people working for them because they don’t have the resources available.

This dearth of housing lawyers calls for systemic change in the legal services market — to make housing and tenant advocacy work more appealing to lawyers, or opening new non-lawyer pathways for advocacy and representation. This might include financial commitments from public or private sources to support needed housing lawyers, loosening regulation about who can give legal advice and support (like the Housing Court Navigator program that NY rolled out in past years), or changes in law schools to educate more graduates about opportunities in housing law (especially with more Right to Counsel programs creating this market need for services, subsidized by the government).

In addition, some advocates have said that more data gathering about evictions, service, and tenants’ outcomes could be of use. That includes investment in collecting, cleaning, and aggregating data (within the bounds of privacy and eviction masking) so that it can be used by stakeholders to understand where and how to do outreach for tenants to inform them of Right to Counsel, and to physically locate more services. The coordinated information could also help assessing long-term benefits of legal services and full representation. This information is not a necessity for the policy, but it could be helpful.

San Francisco is just beginning to roll out Right to Counsel, and more data will be available to examine soon to see its impact. SF City has a much smaller population of people who will be evicted each year than NYC, but it still must grapple with many of the same issues that NYC has. There will need to be careful detail paid to the services, space, data practices, and education that accompanies the policy, so as to make this rollout as effective as possible.

Conclusion

As gathered from New York City, tenant right to counsel can be an effective policy response to the eviction and housing crisis that many cities are dealing with. The policy rollout largely has been successful in ensuring more people are able to navigate court procedure and even maintain stable housing.

However, to get the results we’re working for, we need more lawyers and advocates trained in housing law, more money to support the system and more resources to allow the tenants to truly thrive. These changes are on the horizon though -- with a massive policy change like tenant right to counsel, the larger system and this specific policy will take time to improve. Hopefully, the policy details and the broader culture in the justice and housing systems will morph to better achieve its core mission of equal access to justice and full protection of the law.

Read More:

Groundbreaking San Francisco Measure Guarantees Counsel to Tenants Facing Eviction, Laura Ernde, Legal Bay, article linked, 2018.

NYU Furman Center (2018) ‘Implementing New York City’s Universal Access to Counsel Program: Lessons for Other Jurisdictions’, Policy Brief, (December).

NYC Right to Counsel: First year results and potential for expansion, March 2019, Community Service Society of NY.

NYC Mayor’s Office of Civil Justice and New York City Human Resources Administration (2018) Universal Access to Legal Services A Report on Year One of Implementation in New York City.

McKim, J. (2019) ‘“Someone To Speak For You”: Low-Income Tenants Get Lawyers For Housing Court’, NPR.

Methodology Report from the Eviction lab: Matthew Desmond, Ashley Gromis, Lavar Edmonds, James Hendrickson, Katie Krywokulski, Lillian Leung, and Adam Porton. Version 1.0. Princeton: Princeton University, 2018, www.evictionlab.org/methods.

Right To Counsel Toolkit, Right To Counsel Coalition NYC, 2018.

On the Media, WNYC: The Scarlet E series on Eviction in America.

American Bar Foundation, National Center for State Courts, and the Public Welfare Foundation. Roles Beyond Lawyers: Evaluation of the New York City Court Navigators Program. March 2017.

Seron, C. et al. (2001) ‘The Impact of Legal Counsel on Outcomes for Poor Tenants in New York City’s Housing Court: Results of a Randomized Experiment’, Law & Society Review, 35(2), p. 419.