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Check out the NCCRC’s Model Tenant RTC Legislation to see examples of many of the items discussed below.
Eviction RTC has to be right for the jurisdiction enacting it. There is no one way to campaign for, enact, or implement eviction RTC. Factors that can affect the scope and implementation of the policy include available funding, legal service provider capacity (and ability to build out and staff up), and the government’s level of interest in administering the program.
However, based on our collaboration with cities and states that have already passed eviction RTC laws, as well as those still working on it, we have determined there are “must-haves” that need to be in place for a law to be considered an eviction RTC:
The law must clearly guarantee representation.
The law, which can exist as a city ordinance, county-level law, or state statute, must include language that makes it clear that eligible tenants are entitled to receive representation. This does not mean the law must use the terms “guarantee” or “right.” Below are examples of satisfactory guarantees from enacted laws that use different kinds of language:
NYC: “Subject to appropriation, the coordinator … shall ensure that … All income-eligible individuals receive access to full legal representation no later than their first scheduled appearance in a covered proceeding in housing court, or as soon thereafter as is practicable.”
Philadelphia: “The Managing Director shall ensure that all Covered Individuals receive Full Legal Representation from a Designated Organization in a Covered Proceeding…”
Denver: “Covered individuals will receive full legal representation, subject to appropriations, in a covered proceeding …”
Jersey City: “Jersey City shall provide funding to be used exclusively by the Division of Tenants’ Right to Counsel as provided herein and shall ensure that … All Covered Individuals may apply for and receive access to Legal Representation … No later than January 1, 2025, the Director shall produce a written notice of tenants’ rights and resources, including the Right to Counsel and how to access it…”
Maryland: “A covered individual shall have access to legal representation as provided under this subtitle.”
St. Louis: “The coordinator shall establish a program to provide access to full legal representation in covered proceedings to covered individuals of the City to provide such individuals with access to full legal representation as provided under this ordinance no later than July 1, 2024.”
It is not possible to have an eviction RTC without such a law. An eviction RTC is thus different than:
A pilot project to provide legal services, because there is no law promising that a particular set of tenants is entitled to counsel and usually has an end date. Even if a law is passed to start a pilot, it is still not an eviction RTC unless it defines who is eligible and guarantees that those tenants will receive counsel.
Increased funding for local legal services providers, even if it’s enough funding to represent all tenants (which is called universal representation). Without a law, there is no promise and therefore no right.
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We highly recommend Andrew Scherer’s “WHY A RIGHT: The Right to Counsel and the Ecology of Housing Justice” (2016), which discusses why it is so important to establish a right to counsel in eviction proceedings. As he wrote before the enactment of the eviction RTC law in NYC:
“...while an expansion of funding for legal assistance to people facing eviction is enormously helpful, it is not enough to simply increase funding; there are many important and compelling reasons why access to counsel should be a right. A right protects right-holders against government error and unfairness and advances the rule of law. A right protects right-holders’ well-being, security and stability. A right reinforces right-holders’ dignity and respect. A right fosters equality. And perhaps most importantly, a right fundamentally shifts power to the rightholder. And, by increasing fairness in the operations of the Court, improving the status and treatment of tenants, fostering equality and altering the balance of power, the right to counsel would disrupt the existing ecology and bring about concrete changes in the practices of New York City’s Housing Court and the relations between landlords and tenants.”
The law must provide for full representation for eligible tenants.
In an eviction RTC model, attorneys are expected to provide full representation for all eligible tenants. This means a true lawyer-client relationship is formed and the lawyer provides the representation necessary to achieve the best result for that client without regard to resource constraints. This is very different from the traditional legal services “triage” approach where providers provide full representation only to the “most meritorious” cases and brief legal services to everyone else because they don’t have the resources or obligation to do otherwise.
What the “full representation” of a client looks like depends on the facts and law at issue in the case. Full representation does not mean that legal services attorneys take the same exact steps in every case. Even in a full representation model, the best possible result may be achieved via a quick conversation with the landlord’s attorney; others may require the filing of motions and a trial. And attorneys still have to adhere to their attorney's ethical obligations, which prevent them from making frivolous arguments before the court. So while full representation might sometimes result in an amount of services that can seem like limited legal services, the differences are that a) the decision about the level of service is not based on trying to preserve resources or prioritize the best cases, but rather that it is genuinely the amount of services necessary to achieve the best result for that client without regard to resource constraints; and b) the attorney has an attorney-client relationship with the tenant.
Ideally, the law explicitly says that eligible tenants will receive full representation, but it at least must not state that eligible tenants might receive brief representation/services.
Brief services can be provided in two scenarios. The first is for non-eligible tenants. NYC’s eviction RTC law specifies that tenants over 200% of the federal poverty level are entitled to receive brief services. The second is a temporary one: where an eviction RTC program is still being phased in and cannot yet serve all eligible tenants, some providers might elect to provide limited legal services rather than have the tenant go without any help at all.
The reason full representation is a requirement is driven by the fact that while full representation has been found to be highly effective (see Section 1.4), limited scope has found to be less so (and sometimes dramatically less so). For instance:
In San Francisco, some eligible tenants received brief legal services prior to the program being at full scale. A 2024 report found that 63% of those receiving full representation were able to stay in their homes, compared to 45% of those receiving limited legal services, while 2021 data from the program found that 70% of the fully represented tenants who didn’t retain their unit received a favorable settlement, compared to only 3% of those receiving limited legal services.
Data from a Minnesota tenant representation pilot found that represented tenants won or settled their cases 96% of the time, compared to 83% for those receiving limited legal services.
In California, a study of a representation project in San Mateo found that tenants receiving limited legal services did about the same in terms of unit retention (18% success rate) as tenants with no assistance at all (14% success rate), while the fully represented tenants were successful 55% of the time and received twice as long to move as the tenants receiving limited legal services.
A Massachusetts study found that fully represented tenants saved four times as much in rent and retained their homes twice as often as those receiving limited legal services.
The law can have eligibility criteria, but those criteria must be objective.
An eviction RTC law that does not apply to all tenants might still qualify as an eviction RTC, depending on how it’s done. Objective eligibility criteria like income, age, subsidized tenant status, and the presence of children in the home are permissible because they are either a “yes” or “no” and tenants can easily know whether they fit the criteria. This sometimes can be an effective incremental approach where an eviction RTC applicable to all tenants in a jurisdiction is not politically or financially possible.
However, the law cannot give discretion to either the courts or the legal services providers to choose who gets represented based on which cases they decide they would like to take (often the ones they think have the most merit). Such an approach creates a number of problems:
If providers have discretion, then tenants cannot know ahead of time whether they’ll get counsel, which makes it very hard to get community buy-in to the program (let alone have them think that it’s a “right”).
Different legal services providers, and even different attorneys working within a legal services provider, might have different ideas as to what cases have “merit” or a “worthwhile defense”. This can lead to unfair disparities in representation.
As leadership changes for service providers, their philosophy as to what is a “meritorious” case may change, which creates unpredictability.
If providers have discretion, then the more cases they take, the more pressure they will feel from the City to justify why they’re taking those cases.
A merits test creates the idea that cases are either “winners” or “losers”, but eviction RTC delivers results that go beyond “winning” or “losing”. For instance, when tenants get legal assistance that helps them find new housing, that can be a win even if they’re not able to stay in their unit. In addition, advancing eviction RTC can help build up tenant power and drive larger housing justice reforms.
A few additional things to keep in mind about criteria:
Some criteria may seem “objective” but may prove to be subjective in practice. For instance, disability status is only objective if limited to tenants receiving disability benefits (like SSI and SSDI); otherwise, providers may have to determine what qualifies as a disability and what documentation is sufficient.
For some criteria, you may not have the data as to how many people would be eligible because courts don’t tend to keep demographic information like whether tenants have children, are veterans, or suffer from a disability.
In our experience providers and organizers have mixed feelings about income limits. On the one hand, income limits can bring down the total cost of RTC while avoiding the argument that wealthy tenants will get a free lawyer. On the other hand, having an income limit requires legal aid providers to do income / asset screening, which can make it difficult for attorneys to have the time to prepare for the case when meeting the tenant on the day of the hearing. Additionally, some organizers feel that income limits create an impression that the TRTC is a type of “welfare” program and also creates resentment by excluding moderate-income tenants who also cannot actually afford representation. Finally, in many jurisdictions the vast number of tenants in housing court are low income, so an income limit won’t actually lower the cost much but it will increase the administrative burden.
There must be government funding at sufficient levels.
Without funding, an enacted RTC is an “unfunded mandate”, meaning a law that won’t actually get carried out because there’s no money to make it happen. While it’s common for the funding amount/source to not be stated in the language of the law itself (rather, it is worked out in a separate appropriations process), there must be a commitment from the government at the time of passage. And for eviction RTC to be truly effective it has to build up the legal aid program by providing full funding and not put the program at risk. Legal aid providers are accustomed to “starvation budgets”, but a full representation model requires them to think big, and your campaign needs to make sure it’s asking for enough funding to really provide full, effective representation.
Reflection Activity
Which of the must-have elements of eviction RTC resonate with you most?
How would stakeholders in your jurisdiction word the law so that it clearly guarantees representation?