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Right to Counsel Laws: What Real Estate Investors Need To Know

May 25, 2020 by Deidre Woollard

In the past several years, a focus on tenants' rights has led to a spread in laws and programs that help increase renters' access to legal representation. Matthew Desmond's Pulitzer Prize–winning book, Evicted: Poverty and Profit in the American City, published in 2016 drew attention to the fact that millions of people are evicted each year. A wide variety of advocacy groups have been pushing for right-to-counsel programs as a way to reduce eviction rates.

What are right-to-counsel laws and why do they matter in real estate?

Right-to-counsel (RTC) laws and programs help people with lower incomes access legal representation. In real estate, these programs give tenants the ability to receive legal advice on their rental situation. These laws seek to make sure that landlords and tenants are on a more equal footing during eviction proceedings in court.

Most tenants don't have representation during legal battles, but many landlords do. If tenants don't have money to pay rent, they likely don't have money for a lawyer either. Also, many tenants are unclear about what their rights are during an eviction proceeding. The main impetus of RTC programs is to give tenants a clearer understanding of their legal footing.

Where are right-to-counsel laws in place?

The first right to counsel law in a major city in the U.S. was passed in New York City in 2017. It was rolled out slowly, starting with just 20 zip codes, but by 2022 the program will be available for all residents who are at or below 200% of the federal poverty guidelines. Evictions fell by 5% in New York in 2018, and the law has increased the number of tenants who bring a lawyer to their proceeding.

There are also RTC programs in Washington D.C., Philadelphia, and many other major cities. In late 2018, Newark, New Jersey, began to roll out its RTC program. There are currently three bills under discussion in the Massachusetts state legislature that could lead to statewide RTC rules.

A map produced by the National Coalition for a Civil Right to Counsel tracks emerging RTC laws by both city and states. Not all RTC laws have to do with eviction; in fact, many focus on divorce, bankruptcy, or other civil proceedings.

Is now the right time?

Those ongoing efforts received a recent national boost on May 8, 2020, when Representative Joe Kennedy III (D-Mass.) introduced a resolution that would extend the right to counsel to civil cases, including those related to evictions and other housing problems. The resolution is called a Civil Gideon, invoking Gideon vs. Wainwright, the case that established the right to counsel in criminal cases.

According to the resolution, 94 million Americans are unable to afford legal counsel, and currently, there is one civil legal aid attorney available for every eligible person in need. The resolution also cites areas such as Maricopa County, Arizona, where an eviction proceeding can take only a minute if the tenant is unrepresented.

Kennedy's resolution isn't the only national political movement addressing the right to counsel. In February, the Legal Assistance to Prevent Evictions Act of 2020 was introduced in Congress. The purpose of the bill is to establish a grant program for cities and states to fund legal assistance in residential eviction matters.

Kennedy faced criticism for introducing his resolution during the COVID-19 outbreak. While eviction moratoria are still in place in many areas and are constantly being expanded, eventually they will end, and many experts are forecasting that courts will be overwhelmed with a backlog of eviction cases. Some states such as Georgia are already rulingon when landlords can and can't evict tenants in the wake of COVID-19. In Georgia, if a landlord receives stimulus money through the CARES Act, they cannot evict a tenant until at least August 25.

Many landlords are struggling to make their mortgage payments, and while some have applied for relief, many have been stuck in a waiting game as funding quickly dries up. Once the eviction moratoria have passed, there may be some landlords who try to remove tenants without going through a formal eviction process.

The eviction process varies by state, but once a case heads to court, it generally costs the landlord additional filing fees before the consideration of also engaging legal counsel. While the landlord is represented in many cases, that isn't always the case among landlords who may only own a handful of properties.

A larger potential consideration is how states and cities will fund these programs. As the COVID-19 pandemic wears on and the economy struggles, the availability of funding for programs like these may decrease right at a time when evictions could increase. While the most recent data suggests that the majority of tenants are paying rent, those numbers may fall as unemployment rises.

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