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The start of the COVID-19 pandemic brought heightened attention to a common occurrence in the United States: evictions. On September 4, 2020, the Centers for Disease Control and Prevention announced a moratorium on evictions across the nation in an effort to curtail the rapid spread of the virus.  The agency’s rationale for promulgating this order is that evictions increase the spread of the virus by raising the risk of homelessness.  Homeless individuals are more likely to move into congregate settings, such as homeless shelters, which places them at an increased risk of contracting and spreading the virus that causes COVID-19.  Evictions also make it more difficult for State and local governments to implement stay-at-home orders and make it difficult for individuals who become ill to self-isolate.  

The spread of COVID-19 is not the only detriment resulting from evictions.  Evictions break up families, impair careers, and marginalize Black and Brown communities.  Evictions are associated with higher rates of stress and depression, addiction, suicide, parental abuse, and other mental health conditions.  Evictions cause an increase in the risk of homelessness, and elevate long-term residential instability.  In some cases, evictions result in a (modest) decrease in earnings as well as credit access.  Evictions also result in an increase in emergency room use and are traumatizing for children.  

The ills of the eviction process have a disproportionate impact on Black and Brown communities.  Some studies have shown that neighborhoods with higher percentages of Black residents also have higher eviction filing rates.  Another study indicates that Black Americans make up an average of 39.5% of the population in zip codes with the highest eviction rates, yet make up an average of only 21.9% of the cities in which those zip codes are located.  Black Americans represent only 4.1% of residents in zip codes with the lowest rates of eviction.  Similarly, Hispanic Americans represent an average of 40.8% of residents in zip codes with the highest eviction rates, yet represent only 29.1% of the cities in which those zip codes are located.  In contrast, white Americans represent 11.0% of residents in zip codes with the highest eviction rates, yet compose 32.1% of the cities in which those zip codes are located. 

To date, a growing list of jurisdictions across the United States have enacted right to counsel measures for tenants in eviction proceedings.  These include cities such as New York City, San Francisco, Seattle, Baltimore, Cleveland, Philadelphia, Denver, Louisville, Rochester, Toledo, Boulder, and Newark, as well as states such as Washington, Connecticut, and Maryland.  Many of these jurisdictions have reported significant fiscal budget savings as a result of right to counsel legislation.  Others have reported a decline in the number of eviction cases filed.  Still others have seen an increase in the number of tenants prevailing in their eviction cases. Approximately 86 percent of tenants represented as a result of New York City’s right to counsel legislation were able to remain in their homes. In San Francisco, the eviction filing rate decreased by 10 percent between 2018 and 2019, and of those receiving full representation, 67 percent stayed in their homes. 

In New York, the need for a right to counsel in eviction cases is great.  First, according to Princeton University’s Eviction Lab, 38,055 evictions were carried out statewide in 2016.  This represents an eviction filing rate (the number of eviction filings per 100 renter homes) of 7.15%.  This is higher than the national eviction filing rate of 6.12%.  Second, there is a stark contrast between the number of represented landlords and represented tenants in eviction proceedings.  The ACLU estimates that nationwide, 90% of landlords are represented by legal counsel in evictions, but fewer than 10% of tenants have representation.  Third, Black and Brown New Yorkers are significantly more likely to face an eviction filing.  In a recent report, the New York Law School estimated that at least 80% of New York Housing Court respondents faced with eviction are people of color, despite the fact that only 34% of state residents are people of color. 

Establishing a right to counsel in eviction proceedings would significantly improve public policy.  A right to counsel would address deficiencies in New York town and village courts, where judges are not required to be lawyers and often have no formal legal education.  A right to counsel could save the State significant financial resources by obviating the need for certain social safety net expenditures.  A right to counsel would also improve outcomes in eviction proceedings for both tenants and landlords.

     1. Establishing a right to counsel would improve fairness in town and village courts

In New York, town and village court justices are not required to be lawyers or possess formal legal training.  This means that many eviction proceedings across New York are presided over by non-lawyer justices.  In 2012, the Task Force to Expand Civil Legal Services prepared a report on summary proceedings (including eviction proceedings) in New York’s town and village courts.  The task force identified several areas in need of improvement, including insufficient notice, lack of access to court records, uneven treatment of litigants, insufficient knowledge of applicable law, inadequate training opportunities for justices, and insufficient knowledge of special issues concerning manufactured (i.e., mobile) homes.  A right to counsel in evictions would improve each of these areas.  To the extent that non-lawyer judges are unfamiliar with substantive and procedural law, attorneys could bridge the gaps in judges’ legal knowledge and prevent erroneous applications of law.  The presence of attorneys on both sides of the dispute improves the likelihood of even-handed treatment of litigants; justices are often more open to defenses raised by attorneys than to defenses raised by unrepresented respondents.  Furthermore, Respondents represented by counsel are often better able to obtain access to court records. 

     2. Establishing a right to counsel would conserve financial resources

In 2016, Stout Risius Ross, LLC (Stout), a financial consulting firm, conducted a cost-benefit analysis of the impact of a right to counsel in eviction proceedings in New York City.  Stout concluded that it would cost the city $199 million to provide counsel, but would save the city $519 million in other costs, resulting in a net benefit of $320 million.  Stout estimates that 5,237 families annually could avoid shelter entry through anti-eviction legal services, resulting in $251 million in savings per year.  The Stout report also estimates that the city would save $259 million per year in costs associated with replacing units of affordable housing.  Units of affordable housing are lost when landlords evict tenants from rent regulated units and replace them with tenants that pay market prices.  By enacting a right to counsel, the city could reduce expenditures on constructing new affordable housing, because the rate by which affordable housing is lost would decrease.  Stout also estimates that the city could save $9 million in costs associated with unsheltered homelessness.  Unsheltered homeless populations incur costs to society for medical care and law enforcement.  The Stout report notes that unsheltered homeless people stay an average of 4.1 days longer per admission in the City’s public general hospitals than other low-income patients.  The report also notes the significant payroll expenditures on law enforcement officers employed to arrest homeless individuals for crimes such as sleeping in public parks and trespassing.

Stout’s conclusion that New York City would realize a fiscal benefit by enacting a right to counsel is consistent with its research on the impact of right-to-counsel in other jurisdictions.

     3. Establishing a right to counsel would improve outcomes in eviction courts

When tenants are represented by attorneys in housing court, both tenants and landlords stand to gain.  Represented tenants are better able to keep their homes, obtain additional time to move, maintain clear eviction records, avoid writs of restitution (forced moves by sheriff deputies), and avoid moving into shelters.  Represented tenants also are better able to make informed, reasonable settlements with their landlords–which benefits landlords, who otherwise may have recovered little-to-nothing from a judgment-proof tenant.  A Minnesota study concluded that tenants who were represented by counsel won or settled their cases 96 percent of the time, whereas those who were not represented only won or settled 62 percent of the time.  The study also concluded that tenants were twice as likely to stay in their homes or got twice as much time to move.  Approximately 80 percent of represented tenants left court without an eviction record, and tenants were four times less likely to use homeless shelters.  The Shriver Housing Pilot Project found that represented tenants were significantly less likely to end their cases by default.  Unrepresented tenants defaulted 26% of the time, whereas represented tenants defaulted 8% of the time.  

The case for a right to counsel in evictions is strong.  Enacting this right would improve public health, reduce social inequality, and strengthen the economy.  The State of New York has an opportunity to improve the mental health of its residents, strengthen families, and keep children in their homes.  The need for a right to counsel is particularly great in New York towns and villages, where non-lawyer judges often lack the legal training to render fair judgments.  The State stands to save millions of dollars in social safety net programs while also improving outcomes for both tenants and landlords.  

About the Author: Driston Galvao is a JD candidate at Cornell for the class of 2023. Before attending Cornell, Driston earned a bachelor’s degree in American Studies from Tufts University. Driston worked as a Legal Administrative Assistant for the City Solicitor’s Office in Pawtucket, Rhode Island, and has served as a Senate Intern in the Rhode Island Senate. Currently, Driston is an online associate for the Journal of Law and Public Policy.