Right to Counsel for Tenants

Policy Toolkit

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What Is It

For low-income renters facing the possibility of eviction — disproportionately renters of color and particularly Black women with children — having legal representation can mean the difference between staying in their homes and being forced out. While the United States Constitution provides all individuals facing criminal charges with a right to counsel, no such constitutional right exists in civil cases, including eviction cases. Low-income tenants must typically represent themselves against landlords who often have legal representation. According to data analyzed by the National Coalition for a Civil Right to Counsel, across the US, only three percent of tenants have legal representation in eviction cases, while 81 percent of landlords have representation. In the face of this uneven playing field, a growing number of cities are passing policies that provide a right to free legal assistance to low-income renters facing eviction cases. And they are working: In New York City, 84 percent of represented tenants remained in their homes, and in Cleveland, more than 90 percent of tenants with legal representation avoided eviction or an involuntary move.

By providing a right to legal assistance to low-income renters facing eviction, cities, and states can intervene to help stabilize households at a crucial moment — evictions increase individuals' and families' vulnerability to homelessness, resulting in negative consequences for their health, education, and economic mobility. In the aftermath of the COVID-19 pandemic, Philadelphia maintained eviction rates well below historic filing rates but eviction filings were still disproportionately being filed against Black renters, who are twice as likely to face the threat of an eviction compared to their white counterparts.

Preventing evictions is also a key strategy to maintain neighborhood stability in housing markets where unscrupulous landlords may be tempted to use the threat of eviction as a tool to remove rent-protected households. In addition, preventing evictions can mitigate the power imbalance between tenants and landlords. Landlords have taken advantage of their relative power in the eviction process to serially file evictions against tenants as a rent collection tool. Outside of the courts, landlords have been found to illegally evict tenants through threats, lockouts, or other means which has been shown to occur with as much frequency as legal evictions.

Finally, preventing evictions can save cities a lot of money. This fact is underscored by comprehensive cost-benefit analyses (CBA) conducted in various regions. Notably, a CBA for a right to counsel for tenants in New York City found that the program would cost about $200 million per year, and would save the city $320 million in costs related to housing displaced families in the homeless shelter system, preservation of rent-regulated affordable housing, and unsheltered homelessness.

A Pennsylvania statewide CBA also found that cost savings would result in $3-$6 for every dollar invested in legal representation for tenants, and if fully implemented across the state of Pennsylvania, a program providing universal access to legal representation for tenants would result in eviction filings declining by 5 percent each year. A 2022 economic impact assessment on Detroit’s right-to-counsel initiative was predicted to lead to over $18 million in annual cost savings for social safety net responses. Detroit City Council later passed right-to-counsel legislation in May of 2022. Further, in Cleveland, the first midwestern city to pass right to counsel, an evaluation of the program showed $1.1 million in cost savings related to housing social safety net responses, $1.4 million in economic value preserved by retaining residency in Cleveland, and many others, totaling up to $4.7 million in estimated fiscal savings.

In addition to the PolicyLink resources listed to the right, see Public Counsel, National Coalition for Civil Right to Counsel, Results for America Solutions Sprint: Advancing Racial and Health Justice through Right to Counsel for Tenants Facing Eviction (ARHJ), and National Low Income Housing Coalition for additional resources on tenant right to counsel.

Who Implements It

Elected and appointed city officials can pass legislation to mandate a right to legal counsel for tenants facing eviction or displacement, establish programs, and dedicate public funds to supporting legal representation.
Tenant organizers, impacted tenants, community-based organizations and other advocates push city and county officials to pass right-to-counsel legislation and dedicate resources for legal representation to low-income households.
Business leaders and philanthropy can provide financial support to public and nonprofit programs that provide pro bono legal representation for low-income individuals.
Law firms can dedicate pro bono attorney resources toward legal representation for low-income tenants threatened with eviction.

Considerations

The strongest legal assistance policies guarantee a right to counsel for low-income residents facing eviction or displacement through dedicated public funding. Cities seeking to implement policies and programs guaranteeing legal representation for low-income tenants must consider a range of related legal and practical issues.

Building public will: Advocates and officials should consider conducting a cost-benefit analysis to measure the overall economic, budgetary, and logistical effects of guaranteeing tenants’ right to counsel. These analyses can help elected officials and the general public understand the benefits of such a program. In the long term, implementing a policy guaranteeing renters’ right to counsel may produce significant public savings. Recent polling research also shows that there is significant support behind government action to prevent evictions. 64 percent of voters were in support of expanding funding for legal services to prevent evictions and 68 percent of voters claimed to support the right to counsel for tenants facing eviction proceedings.
Data analysis: Local leaders should take steps to understand the scale of eviction proceedings in their city — how many eviction proceedings are scheduled each day, how often tenants are represented, and how likely they are to win their cases. In 2012, prior to establishing the country’s first right to counsel for tenants, only 1 percent of New York City tenants facing eviction were represented by lawyers, compared with 90 percent of landlords. In addition, support should be provided to collect data through court watching similar to the work of Texas Housers to understand the nuances of eviction proceedings and the shortcomings of government programs meant to assist with reducing evictions.
Funding: Extending legal protections to civil cases for low-income residents facing displacement requires dedicated funding, which can come from existing or new legal defense, a housing affordability trust funds, and/or philanthropic sources.
Encouraging effective pro bono legal services: Some legal costs could be offset by engaging pro bono representation from large law firms. Not all attorneys are experts in protecting tenant rights, however, and pro bono attorneys should undergo basic training to familiarize themselves with eviction defense and relevant housing laws.
Complementary policies: To address both the immediate and long-term impacts of evictions, eviction diversion and eviction record protections, such as eviction record sealing, are complementary policies that work interconnectedly with tenant right to counsel to undermine the eviction system and increase access to housing opportunities. They are each important race equity tools and solutions for decreasing the racial impacts of evictions.

Where Is It Working

In the United States, legal protections afforded to low-income households tend to be patchwork efforts supported by nonprofit legal aid groups, pro bono attorneys who volunteer their time, and even law students. Prior to 2017, there were no jurisdictions in the country that provided a right to counsel for tenants facing eviction. However, this has changed rapidly as the movement for tenant right to counsel has grown. New York City was the first to pass the law in 2017, followed by Newark and San Francisco in 2018, and Philadelphia and Cleveland in 2019. In 2023, an additional 1 state, 4 cities, and 1 county had passed tenant right to counsel laws (for a total of 17 cities, 1 county, and 4 states with a tenant right to counsel), with active campaigns moving across the country in 2023. Most recently, jurisdiction participants from St. Louis and Los Angeles in the Results for America Right to Counsel Solutions Sprint saw their learnings and hard work lead to the successful passage of a right to counsel in each respective community.

In 2017, New York City Mayor Bill de Blasio and City Council Speaker Melissa Mark-Viverito announced that the city would become the first in the nation to provide legal assistance to all low-income tenants facing eviction, a decision that advocates celebrated as a tool for resisting gentrification, reducing unjust evictions, and supporting tenants’ rights to organize. To cover the costs of the new program, the city’s eviction legal aid spending will increase by $93 million through 2022. Results from the program have been overwhelmingly positive: 62% of tenants in New York City were represented by an attorney in eviction cases in 2019 compared to just 2% in 2010. Eviction rates in 2019 declined 29% since 2017.

In 2018, San Francisco residents voted 56% to 44% to approve Proposition F, a ballot initiative to guarantee a right to counsel for all tenants facing eviction, regardless of income. This campaign was led by a coalition of tenant groups and advocates called the SF Right to Counsel Committee. The latest data demonstrates how powerful of a tool the law is, both in protecting tenants from eviction and advancing racial and economic equity for tenants. Of the two-thirds of tenants receiving full-scope representation, 67% have been able to stay in their homes, including 80% of Black tenants. Furthermore, even without an income limit, 85% of tenants receiving counsel are extremely low or low income.
In April 2021, Governor Jay Inslee signed SB 5160, making Washington the first state to guarantee counsel for low-income tenants (earning below 125% of the federal poverty level) in eviction cases. The legislation is referred to as the “Appointed Counsel Program for Indigent Tenants in Unlawful Detainer Cases” and has been fully operational since January 2022. In July 2022, the Office of Civil Aid shared the first annual report of the policy and program to the Washington State Legislature, demonstrating its success. Within the first 5 months of implementation, attorneys represented close to 3,000 tenants and helped tenants remain in their homes in more than 50% of closed cases. In cases where tenants were not able to remain in their homes, attorneys were able to successfully negotiate agreements that included extended time to move, orders of dismissal, and tenant relief from future claims of back-due rent - ultimately reducing the long-term negative impact on their ability to find rental housing.