A Right to Counsel in Eviction: Lessons from New York City
Across the United States, millions of tenants face evictions every year, and many do so without assistance from a lawyer. In 2017, New York City passed and signed into law legislation that guaranteed a right to legal services for tenants facing eviction, also known as “right to counsel.” This new law is likely to have a dramatic impact on New York residents and could serve as a model for other cities considering similar legislation.
In New York City, renters account for 70 percent of households—or 2 million households across the city’s five boroughs. In recent years, property owners have filed more than 200,000 eviction cases per year. During these proceedings, there can be a gulf between the two parties. New York University’s Furman Center estimates that before the law went into effect, 95 percent of landlords used an attorney for eviction cases, but only 1 percent of tenants had counsel. With this new law, which is being phased in by zip code, tenants will have access to a range of free legal services to help them understand the details of the case, have an advocate in court, address errors in a landlord’s case, and assert their rights as tenants. The program is currently available to four zip codes in each borough. During the second year of the right to counsel program, approximately 41,000 households received legal assistance, a 74 percent increase in households served since the start of the program.
To learn more about the program and its roll out, we spoke with Sophie House, a legal fellow at NYU’s Furman Center.
The interview has been lightly edited for clarity and length.
Housing Matters: How did right to counsel come about in NYC, and what were some of the conversations and drivers that led to right to counsel?
From the time that [NYC’s] housing court was created in the 1970s, advocates, the judiciary, and the court administrators were urging the city to do something about the large number of unrepresented tenants. From the 1980s onwards, legal scholars and advocates were arguing for what was called the Civil Gideon; in other words, the civil right to counsel that would parallel the right to counsel in criminal court cases that was established in the Supreme Court case that was called Gideon v. Wainwright.
Two different community organizations, one called CASA out of the Bronx and another called Brooklyn Tenants United, were working on campaigns to reform the housing courts in their respective boroughs. In 2013, CASA published a report with the Community Development Project advocating for legislation that would establish a right to counsel in housing court. There was a lot of motivation for that organizing work in the report, which had to do with the culture of the court, the power dynamics between represented landlords and unrepresented tenants, the prevalence of intimidation and harassment, as well as concerns for eviction prevention and homelessness prevention. CASA also led the formation of the Right to Counsel Coalition, which pushed for the introduction of a bill in the city council. The coalition developed a detailed plan for the bill and did an enormous amount of organizing, education, and outreach around it.
In 2014, the first bill was introduced by council members Mark Levine and Vanessa Gibson. The bill required NYC’s Office of Civil Justice to establish the program to provide tenants access to legal counsel in five years. The city council approved an amended version of the bill in July 2017. Mayor de Blasio signed it in August 2017, and implementation started in September 2017.
HM: Why is the right to counsel seen as important in New York?
Before, you had about 95 percent of landlords represented by counsel and only 1 percent of tenants represented when they appeared in court. Under a system like that, landlord behavior is shaped by the knowledge that few, if any, tenants had lawyers in housing court, so it’s easier and less costly to take a tenant to court.
When we studied the implementation, we interviewed about 100 tenants in Brooklyn housing court in the early phases of the rollout, and we found that most of those tenants were unrepresented. We found that even tenants who had housing conditions that would give them meritorious claims to assert in court and that might entitle them to rent abatement, didn’t see housing court as a place where they were entitled to assert any rights. They didn’t see housing court as a place where a lawyer could help them. They saw it as a place where landlords would come to collect money, and the process was, at best, about getting more time to pay that money. Having lawyers in that context both reshapes the structural dynamic and changes landlords’ expectations around what the other side is prepared to do or assert. It helps tenants navigate the housing court system, which is byzantine and confusing and intimidating. Ideally, it helps bring tenants meritorious claim for housing repairs or renovation or things like that.
The other policy motivations of improving access to counsel has to do with the harms of eviction. The research shows that in some cities, as many as 1 in 10 renters will have to move every year because of eviction proceedings, and they often move into lower-quality housing, housing in neighborhoods with higher crimes or more concentrated poverty and fewer education and employment opportunities. Other research from two former Furman Center doctoral fellows (PDF) shows that eviction significantly increased the risk of homelessness for a prolonged period and led to higher emergency room usage. Eviction can lead to job loss, it can disrupt someone’s social network, and there’s also recent research suggesting that housing instability may have mental health impacts on children. The bottom line is that eviction is a disruptive and harmful event that it is worth preventing.
On top of that, tenants subject to housing court proceedings historically were “blacklisted” as problem tenants and had trouble finding housing. That’s a practice that’s now illegal in NY state but subject to enforcement, and many places don’t have those kinds of bans on blacklisting. Even the threat of eviction can be harmful if someone preemptively leaves their housing, and that can disrupt their work schedules, their children’s schooling, and that brings with it all the stress of unplanned housing instability. Right to counsel plays a role in giving tenants a defense against eviction and can help deter frivolous cases, which I think are substantial motivating factor.
HM: From your perspective, what have been the effects of the program on eviction, homelessness, cost savings, and other factors?
More tenants are represented. Advocates and the city say that more than 50 percent of tenants in the covered zip codes were represented last year, which is huge. We’ve seen reported that 30 percent of tenants citywide were represented. That’s up from less than 1 percent in 2014. That in and of itself was a huge metric.
We don’t know enough yet on the effects on eviction. Our research only covers the period before the rollout. What we’ve seen is that evictions started falling in 2011 and continued to decrease to 2017, which is the last year we have a full year of data. The only exception is the Bronx, which had far more evictions than any other borough, even in 2010, and was the only borough where evictions increased over the seven-year period we analyzed. There’s not a lot we can say yet. It would take several more years to do a robust evaluation of the program.
HM: What about the effects on tenants going through this process?
We haven’t spoken with tenants since the early phases of the rollout, but I would say there’s a lot of work to do with tenant organizing and with community-based organizations to rebuild trust in the housing court system. It’s a big shift in tenants’ consciousness to move from the idea that housing court is not a place where you’re going to be helped, to a place where you have rights and are actually asserting those rights. It’s a big shift, a big cultural shift. For years, the same tenant advocates would say, the message to tenants was, “don’t talk to landlords.” For the longest time, and to a certain extent even today, housing court happened in the hallway: landlords’ attorneys would negotiate deals with unrepresented tenants just outside the courtroom doors. Therefore, advocates would warn tenants to not talk to lawyers because those are landlord’s lawyers, not tenant lawyers. Now the message is, “talk to lawyers in housing court,” and that’s a big change.
Also, in New York City, there is a rental assistance program that provides payments to eligible households, and that plays a major role in how eviction proceedings can move forward because some landlords know that tenants are eligible to get the money that they might owe in back rent. Lawyers can do a lot to help tenants get those funds. These resources aren’t available in many other places and make it relatively feasible in nonpayment cases for landlords and tenants to reach an agreement on a payment plan.
HM: What key lessons can other cities interested in establishing a right to counsel program learn from NYC?
One of the first considerations is whether and how the program will be phased in. In NYC, the city realized it wouldn’t be feasible to immediately implement full access to counsel citywide. Something the coalition emphasized was that eligibility requirements should be really clear for tenants, so your zip code, that’s something that people know. The other consideration is about who will actually be providing legal services, which is really important to the quality of the representation that the tenants will receive. It’s built into the legislation in NYC that all of the services are provided by nonprofit legal services providers with expertise in representing tenants. It’s not a pro bono shortlist, it’s not court appointed. It’s important to build the capacity of legal service providers that have been doing this for a long time and know how to do it best.
One challenge New York City faced is building the capacity to recruit supervisors, because the rollout involves bringing on many more tenants lawyers. Legal service providers have had to consider how to maintain the ratio of more senior lawyers to new lawyers, which is a challenge that other cities can think about in advance.
Cities should also think about how to educate tenants about the fact that counsel is now available and how they can help tenants understand the advantages of having a lawyer help you in housing court. Again, that runs counter to the ways that housing court has operated for so long, and those changes take a long time, so that’s something to think about early. Community-based organizations are able to do that outreach and education work most effectively.
Further, there are a host of mechanical, logistical points, programmatic points to consider. For example, how will lawyers be assigned to tenants, and what are the eligibility requirements? In New York, tenants are eligible if their household income does not exceed 200 percent of the federal poverty line. Also, cities need to plan for the effect of increasing representation on one side of housing court resources—everything from judges and other court staff, physical spaces and technology, other services like translation. That’s been a big adaptation for New York and one that they’re still working on fully implementing.
And lastly, another thing to think about is how increased access to counsel will affect landlords and landlords’ attorneys. Even from the implementation phase, litigation in some cases becomes more aggressive because there’s more happening in cases… it’s not necessarily a bad thing, but courts should be prepared for a shift in practice. Part of the theory of providing right to counsel is to make it costlier to bring eviction cases, which in turn can have a positive effect by discouraging frivolous litigation. But that carries with it a risk that landlords would rely on harassment and tactics outside of the legal system to evict tenants, more informal proceedings. We don’t have any data on that, but conceptually, it’s a concern.
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