Why Some Renters Are Experiencing the Threat of Eviction

In July 2023, during a massive heat wave that is evidenced by a dome over the Southwest, or the flooding in the Northeast, landlords are returning to “rent court” to evict those tenants who have not been paying rent. Some states have passed laws guaranteeing renters a right to counsel.  But how does that work from a practical standpoint?  Many tenants have refused to pay rent because of mold, poor maintenance, or other issues at the property where they live.  Other renters simply believe that the cards are stacked against them, so they don’t show up for hearings.  Jennifer Ludden, in her July 8, 2023 article, discusses the many hardships of renters just seeking a little relief.  (See “More renters facing eviction have a right to a lawyer. Finding one can be hard,” https://www.npr.org/2023/07/08/1185888943/renters-tenant-rights-eviction-lawyer-right-to-counsel-court.)  

Ludden interviewed an attorney for Maryland Legal Aid who was trying to help someone stay in her home.  The attorney argued that “Homelessness is a crisis in this country” and providing aid to the tenants before an eviction hearing is “pretty much trying to stop the bleeding at the source.”  Although Maryland guarantees renters a right to counsel, there is no system in place to match attorneys with renters who need assistance.  As a result, Maryland Legal Aid and other attorneys simply show up about 30 minutes before the eviction hearings commence offering their free legal services to renters.  Indeed, at the time of his interview, the attorney was meeting his client for the first time just prior to the hearing. 

When the attorneys arrive, they ask those renters assembled if they would like an attorney to represent them.  Those who answer in the affirmative head to corners or other close-by locations to discuss the specifics of their cases with attorneys. Once the attorney has finished the consultation, he or she approaches the landlord to see if some type of agreement may be arranged prior to the court clerk calling the particular tenant case to be heard by the judge. 

Ludden reports that across the US, there is a power imbalance between landlords and tenants:  80 percent of landlords are represented by counsel; only 3 percent of tenants.  She also states that those facing eviction are “disproportionately people of color, reflecting generations of racial discrimination in real estate, banking and the labor market.” 

The COVID pandemic accelerated emergency protection for renters, with states, cities, and a county having passed right-to-counsel laws.  However, the need to counsel has recently exploded, so places like New York City and Kansas City, MO, already face a shortage of lawyers.  Now that the pandemic is over, it is unclear how many evictions will be filed on a yearly basis, and whether lawyers will be able to keep up with the demand. 

Moreover, evictions are handled differently at the local level.  In some jurisdictions, the court may proceed with an eviction hearing even if no attorney is present.  In contrast, in Washington State, where courts appoint eviction attorneys, the hearing will be continued if the tenant does not have counsel. 

Groups representing landlords “strongly oppose” right-to-counsel laws. They believe any government money allocated for the retention of counsel would be better spent avoiding evictions in the first place.  Government money could be used for “emergency rental assistance” or “longer-term assistance through housing subsidy programs.”   They note that only 1 in 4 people who are entitled to some type of federal housing subsidy actually receive rent vouchers. However, in many states, landlords may legally refuse to accept such vouchers.  Another issue is that in most states, eviction hearings are set on an accelerated basis.  Although the emergency rental assistance may be available, the tenant may not receive the funds until it’s too late and the tenant has already been evicted.  Landlords also argue that if they delay evictions, because they are waiting for emergency assistance payments from tenants or for other reasons, it necessarily drives up their costs, which must inevitably be passed on to other tenants “making housing, ultimately, increasingly unaffordable.”  But what they don’t say is that landlords usually negotiate fixed fees with attorneys who represent them on a regular basis.  The attorneys have the form pleadings on their systems, and they are able to file eviction pleadings and serve them on the tenants in a streamlined, expedited manner that dramatically reduces the legal costs to landlords.    

In Arizona, eviction proceedings are handled on an expedited basis, with tenants requiring to take certain actions on 5- or 10-days’ notice.  The usual eviction proceeding is completed in 9 to 41 days.  Self-help eviction is illegal, such as cutting off the tenant’s electricity, water, and/or heat supply; changing the locks, without following Arizona law, to prevent the tenant from entering the property; and vandalizing or destroying the tenant’s property.  On the Arizona state court website, under the frequently asked question, “Do I have to have an attorney represent me in an eviction action,” the court advises, “No. There are lots of resources available for people who want to represent themselves.”   https://azcourthelp.org/faq/landlord-tenant-evictions/273-attorney-eviction.  The Bankruptcy Court Self Help Center, the State Bar of Arizona, the Maricopa County Bar Association, the Pima County Bar Association, the Volunteer Lawyers Program-Pima County, the Sandra Day O’Connor College of Law, Civil Litigation Clinic, etc., are listed as possible resources in obtaining or providing legal services to tenants.

Returning to Ludden’s article, the Maryland Legal Aid attorney was able to help his client Keisha, who requests that her last name not be used.  She conceded that she missed rent payments, but says that her daughter was seriously ill from a “devastating illness” and “almost passed away.”  Although Baltimore approved her for emergency rent assistance as a result of the pandemic, she did not immediately receive the rent assistance that she needed, and her landlord scheduled her for eviction.  Her Legal Aid attorney was able to work out an agreement with her landlord.  So, for the time being, she will remain in her home.   

Many tenants do not know of the legal services that are being offered to them.  Maryland is exploring setting up an eviction hotline to get the word out to desperate tenants as to the help they may receive. 

If 80 percent of landlords are represented by counsel, we should determine methods to provide assistance of counsel to every tenant who seeks help.