“If courts are not prepared to be able to provide counsel to tenants facing eviction, then they shouldn’t be having eviction cases.”
Baltimore became the seventh jurisdiction in the US to give tenants a right to counsel in eviction cases last month.
Despite evidence showing legal representation is hugely beneficial to tenants, no jurisdictions in Arizona currently offer that right. This leaves the scales tipped in favor of landlords.
“Somebody being evicted from their home is a very serious matter,” Eric Dunn, litigation director for the National Housing Law Project, told The Copper Courier. “And I really don’t think that it’s appropriate for people to have to face consequences of that magnitude without access to legal representation.”
According to a report commissioned by the Public Justice Center in Baltimore, unrepresented tenants likely face “disruptive displacement” in 93% of eviction proceedings. Represented tenants, on the other hand, avoid “the high likelihood of disruptive displacement” 92% of the time.
And before the right to counsel passed in the city, 96% of landlords had legal representation while only 1% of tenants did.
Throughout most of 2020 (data is not yet available for December), landlords had attorneys in about 89% of Maricopa County eviction cases. Tenants had an attorney less than 1% of the time.
In 2019, landlords were represented in 97% of cases, while tenants again only had an attorney less than 1% of the time.
The other cities that provide counsel in eviction hearings are New York; San Francisco; Newark, New Jersey; Cleveland; Philadelphia; and Boulder, Colorado.
Dunn explained that without legal representation, most tenants aren’t aware of possible defenses they could use to avoid eviction or at least lower their balance.
“If you’re not represented by counsel, there’s a good chance that you’re going to miss defenses that you might have available,” he said. “You’re going to have a hard time negotiating a good deal. You may not even really know what a good deal is.”
And, he said, matters are even more complicated now with the extra protections put in place due to the COVID-19 pandemic. The US Centers for Disease Control and Prevention placed a moratorium on evictions through the end of this month, as long as tenants can prove they have been impacted by COVID and follow the necessary procedures.
But outside of COVID, there are still protections that may help. For example, Dunn said, “if you have a disability that interfered with your ability to pay the rent on time and the landlord could make an accommodation that would enable you to catch up on the rent and stay current in the future, you may have a right to that under anti-discrimination law.”
If tenants can show that their homes were not properly maintained, they may be able to knock their balance down.
There are also procedural missteps tenants can point out to help their case—for example, if a notice they were given does not contain information deemed necessary by law.
Dunn said these are defenses a tenant might not even know to look for without the help of an attorney.
“To not have legal representation I think just makes an unacceptable high risk or somebody being improperly evicted,” Dunn said. “If courts are not prepared to be able to provide counsel to tenants facing eviction, then they shouldn’t be having eviction cases.”
Effects on Community
Dunn pointed out that there is a right to counsel for defendants in the criminal justice system and not the civil, despite civil cases still having devastating effects.
“I’ve had people come to me and say that they’re more concerned about being evicted than they are about being sent to jail,” Dunn said. “Just because one thing’s a civil matter and the other’s criminal, doesn’t necessarily mean that the civil matter is not as important, or in some cases, even more important.”
He said evictions impact much more than just a single family—they also impact schools, businesses, churches, and basically anywhere else the family normally participates.
The Public Justice Center report found that the right to counsel in eviction hearings benefits communities not just in this way, but also financially.
Baltimore investing $5.7 million annually to provide tenants with legal representation would reduce the costs of evictions by $17.5 million, according to the report.
“When you evict a family, that has ripple effects on the whole community,” Dunn said.
Advocates Point to Free and Low-Cost Legal Aid
Matthew Waterman, managing attorney of Southern Arizona Legal Aid’s Consumer, Housing, Public Benefits unit, said he’s heard discussion of a right to counsel in the state but that it will likely take time to gain traction since it is fairly new. New York City, the first to pass it, did so not even four years ago in 2017.
Until then, he said, he’d like to see a requirement that eviction notices inform tenants there are free and low-cost legal aid services available.
“Why is that not done?” Waterman said. “We’ve been asking that for years.”
He said anything that gives tenants “more of a chance at fairness” may help more people attend their hearings and be able to fight back.
“The whole system’s set up in a way right now which is so incredibly in favor of the landlords,” Waterman said. “A right to counsel in every case would change things entirely.”