Mon Sep 27

How lawyers could prevent America's eviction crisis from getting a whole lot worse

Written by: Jennifer Prusak, Associate Clinical Professor of Law, Vanderbilt University

Lawyers may be the only thing standing in the way of eviction for millions of renters.

With the end of the federal Centers for Disease Control and Prevention’s eviction moratorium ^[1] on Aug. 26, 2021, most landlords can now ask courts to evict tenants who haven’t been paying their rent. As a result, new eviction filings are already spiking ^[2] across the country. Data shows that once an eviction court begins a case, it’s very likely the tenant will quickly be out on the street – unless they have legal representation.

As the director of the Housing Law Clinic ^[3] at Vanderbilt University Law School, I’ve seen firsthand the impact that legal representation can have on a renter navigating the eviction process. That is why I believe providing more tenants with access to a lawyer could be the key to keeping more people in their homes.

Protections lost

Since the beginning of the COVID-19 pandemic, millions of Americans ^[4] have fallen behind on their rent obligations due to wage and job losses.

In August 2021, 7.7 million Americans were behind on rent ^[5], and millions more were concerned about their ability to pay rent in the next month.

Federal, state and local governments imposed a variety of eviction bans over the past 18 months to keep people from losing their homes in the middle of a pandemic. Apart from a few moratoriums still in place ^[6], the majority of bans have expired ^[7].

Eviction filings ^[8] are now ^[9] surging ^[10] across the country. Data further shows that Black communities ^[11] are being disproportionately impacted.

Earlier this year, Congress provided US$46.5 billion in renter relief ^[12] as part of its coronavirus recovery spending, but states have been slow to distribute ^[13] the funds to those in need – though the pace appears to be picking up ^[14].

The Treasury Department is pushing states to expedite ^[15] the distribution of these funds by streamlining tenants’ application process. The Justice Department had an additional idea: enlist the help of lawyers ^[16].

Lawyers to the rescue

Eviction court favors landlords ^[17], even in situations where the law is on the renter’s side.

There are several reasons for this. One is that every state has statutes that make the eviction process quick and easy for a landlord to regain possession of a property. Another is that most landlords have legal representation, while most tenants do not ^[18]. But when tenants with valid defenses are represented by counsel, their chances of remaining in their homes increase significantly.

The data supports this. In 2011, Boston used a randomized study ^[19] to measure the effect of full legal representation for a targeted group of low-income tenants facing eviction between 2009 and 2011. In this study, two-thirds of tenants with full representation retained their homes, compared with just one-third of similar unrepresented tenants.

A Minnesota study ^[20] had similar findings, including that tenants with legal support were four times less likely to enter a homeless shelter after their hearing than those without.

Attorneys are more likely than tenants representing themselves to get frivolous actions dismissed ^[21], to raise appropriate legal defenses, to prevent unjust judgments and to ensure due process is followed.

Additionally, attorneys can keep eviction filings off tenants’ records ^[22]. They can negotiate with landlords for reasonable amounts of time for tenants to move. They can also help tenants come up with rental repayment plans and help them apply for rental assistance.

That’s why the U.S. government is encouraging states and cities to use some of the $46 billion in renter aid to create right-to-counsel problems like those in New York ^[23], San Francisco ^[24], Milwaukee ^[25] and many ^[26] other ^[27] cities ^[28].

That is also why U.S. Attorney General Merrick Garland recently sent out an urgent request ^[29] to America’s lawyers to volunteer their time to help renters avoid eviction.

Avoiding an eviction crisis

It’s not too late to avoid the wave of evictions and homelessness ^[30] that tenants, policymakers and housing activists are bracing for.

[Over 110,000 readers rely on The Conversation’s newsletter to understand the world. Sign up today ^[31].\

Distributing rental aid more quickly will help, but lawyers – whether they volunteer or have their time paid for by a right-to-counsel program – have a vital role to play in keeping vulnerable low-income tenants from losing their homes unjustly.

While this issue is particularly acute now, in the middle of a pandemic, ensuring the rights of tenants are respected in eviction courts will have long-lasting health and economic benefits – not just for the individual tenants impacted, but for their families and their communities as well.