The law must clearly guarantee representation.
As just described in section 3.4, eviction RTC laws can have eligibility criteria based on age, income, and whether children are in the home. Income is by far the most common criterion for eligibility, although there are a number of eviction RTC laws at this point that have no eligibility criteria whatsoever.
Pros of having no income limit
Verifying a tenant’s income before providing services is time consuming for legal services providers, which is a real issue given that attorneys are often meeting tenants on the day of court. As Kansas City’s KC Tenants explains in their eviction RTC FAQ, “Eviction cases move fast; lawyers need to undertake representation quickly and tenants need advice and assistance immediately.”
May be wasting time given that most tenants are indigent anyway.
There is a lot of precedent for eviction RTC laws with no income eligibility requirement: San Francisco, Kansas City, Boulder, Baltimore, Minneapolis, New Orleans, Jersey City, and St. Louis.
An income limit may make eviction RTC appear to be a “welfare program”, which can cause it to lose the support of moderate-income voters who won’t qualify.
Cons of having no income limit
Expands the cost of the program, although maybe not by much since most tenants tend to be low income
May create opposition based on idea that “wealthy” tenants will get free lawyers and that that will be wasteful
May create a legal issue in some jurisdictions (consult with your local attorneys). For instance, Washington State law prohibits “gifts” of public funds to confer benefits on private parties in a way that might disadvantage public interests unless it’s for indigent people.
What kinds of proceedings will be covered?
Tenants are displaced in various ways outside of the formal court eviction process. For instance, administrative proceedings to terminate a public housing tenant’s subsidy can lead to formal eviction. Tenants may be illegally locked out. As jurisdictions pass eviction RTC laws, a growing number are expanding coverage to a range of proceedings, including:
Cases that are the “functional equivalent” of eviction. This is a “catch-all” term to capture cases that result in eviction but are not technically called “evictions.” For instance, the term “ejectments” might be used in the law to signify a subset of evictions, and you don’t want these left out because your law is technically limited to “evictions”. Also, illegal lockouts don’t involve a court filing, so they might get omitted by language that focuses on court-based evictions.
Administrative hearings. These are proceedings held by a housing agency to terminate a tenant’s housing subsidy or public housing tenancy. They are not court proceedings, but a tenant who loses their subsidy will almost certainly face a nonpayment of rent eviction later, and a public housing tenancy hearing can result in the tenant being removed.
Appeals. Laws that cover appeals typically give discretion to the provider to determine if there is a non-frivolous basis for the appeal. While this is a “merits” test, a merits determination for an appeal is different because the tenant has already had a full defense by an attorney at trial and there may not be a non-frivolous basis to appeal.
Affirmative cases. These are actions where a tenant files in court against the landlord and becomes the plaintiff. Most commonly, this involves an action to:
Enforce existing laws about property conditions and repairs;
Address violations of anti-harassment or anti-discrimination laws;
Reinstate a tenancy after an illegal or informal eviction; or
Remove a prior eviction from their record.
Examples of laws that cover cases beyond formal court evictions:
Jersey City covers ejectments, counterclaims within an eviction proceeding, any proceeding that is the functional equivalent of an eviction, administrative proceedings, affirmative cases involving housing code violations or discrimination, or proceedings relating to violations of rent control laws.
New Orleans covers administrative proceedings and tenants seeking injunctive relief related to illegal evictions.
Westchester County covers challenges to rent increases, denial of “essential services” like utilities, and restoration of a tenant to a unit if they’ve been unlawfully removed.
How will the tenants be notified about the eviction RTC?
An eviction RTC law typically outlines when and how tenants are notified of the right. Some possibilities are that the landlord must inform tenants of the RTC when they sign the lease and again when they serve the tenant with the notice to quit, or the court must include notice of the eviction RTC as part of the summons/complaint. It’s important to discuss with an attorney whether your law can include notice provisions like this, as there may be legal limitations on the power of a city or county government to require courts or landlords to serve these notices. Also, be aware that tenants may not trust any information coming from the landlord, so additional outreach may be required. Some examples:
Boulder’s law requires the landlord to notify the tenant of the eviction RTC along with the notice to quit or notice to terminate a housing voucher.
For Baltimore, a notice of the eviction RTC must be provided at lease-up.
In New Orleans, “when an eviction proceeding is commenced, or by the housing subsidy providers when a notice of subsidy termination is issued, and by the court when a rule for possession is served.”
Regardless of what is written into the law, Section 4.2 describes how to create a strong campaign to build community and tenant awareness about the existence of eviction RTC.
Be careful about creating confusion between when notice of the eviction RTC occurs and when the eviction RTC actually attaches. The earlier tenants are notified, the more likely they will connect with legal aid if/when an eviction happens. But if the eviction RTC doesn’t actually start at the moment they receive that notice, it can create confusion. For example, a tenant might receive notice of the eviction RTC when they sign their lease, but the right only applies if and when they are served with court eviction papers.
Make sure the notice itself is effective and clear. The notice of eviction RTC should be provided alongside the eviction summons/complaint or the notice to quit served by the landlord, but not be part of those documents since it will get lost in the shuffle. It should be a separate document written in plain English and in a large font. If the law requires landlords to serve the notice, they may attempt to make the notices small or incomprehensible, so it’s best if the law or implementing regulations provide a template the landlords must use.
How will the tenants be connected to attorneys?
In the traditional legal aid intake process, a tenant reaches out to the designated legal services provider (or utilizes a centralized hotline and is referred to a specific provider) and does an intake, and then the legal services provider decides a) whether the tenant is eligible; and b) whether the tenant will receive services (and if so, what kind). The eviction RTC intake process in the majority of eviction RTC laws enacted so far is the same except that if the tenant is eligible, they will receive services and it will be full representation.
The alternative is an appointment model. In criminal cases and for various types of civil cases where people have a right to counsel (for example, child welfare cases and guardianships of adults in most states), a judge will appoint (assign) a lawyer to the defendant. Washington State, Minnesota, and Nebraska passed eviction RTC laws that use a court appointment model.
Pros of appointment model
When judges have the responsibility to appoint a lawyer, it is easier to get them to cooperate in other ways to help implement the right, such as a) sharing eviction dockets with legal services programs; b) changing their notice forms to inform tenants about the right; and b) issuing continuances if counsel is not available.
If the tenant does not get counsel, it’s easier to understand where the process failed: either the court failed to appoint or the legal service provider failed to appear.
Where a judge fails to appoint counsel, it can be appealed and reversed. This has happened in Washington State (Payne v. Nelson, MOSM v. Deegan).
Cons of appointment model
If courts are not cooperative, they could refuse or fail to appoint despite the law, urge tenants to waive their right, or just make processes more difficult for legal services providers.
The government entity that creates the RTC law may not have the legal power to require the courts to appoint. For example, if the city passes the law but the county operates the courts, the city may not be able to set up an appointment system without the county’s cooperation.
Relying on judges to appoint an attorney on the day of the hearing may decrease the urgency of getting attorneys and tenants connected earlier in the process so that the attorney can be fully prepared for the case.
When does the right attach?
This question refers to when the legal services provider is required to represent a tenant who asks for counsel. Absent an appointment system, providers are not automatically responsible for a case once the right attaches: tenants still need to connect with the provider and undergo intake before becoming an actual client of the provider. The right can attach as early as when the tenant is served a notice to quit or as late as when the tenant appears for the first time in court. The earlier the right attaches, the more time the attorney has to connect with the tenant and develop the case (and potentially help the tenant avoid an eviction filing in the first place). However, earlier attachment means that the program will be more expensive because it will cover more cases (including those that never make it to court), and the duration of representation is longer. If the right attaches later in the process, the program may be less expensive but the attorney will have far less time to prepare and fully defend the case.
How does the law address situations where a tenant doesn’t have counsel as of the day of the hearing?
In the appointment model, tenants typically don’t have an attorney until the day of the hearing, at which point they are appointed one. In the non-appointment model, it is not uncommon for a tenant to connect with an attorney the day of the hearing despite attempts to make it happen earlier. In either scenario, an attorney will either be forced to prepare extremely quickly for the hearing or may not even have the capacity to take on another tenant.
For this reason, in any case where the tenant does not have an attorney as of the day of the hearing, courts should be required to continue (adjourn) the case until the tenant has an attorney and allow time for the attorney to prepare. Continuances are a way to stagger representation until a tenant has an attorney to represent them. Continuances are also an acknowledgment that eviction cases are real civil matters that require time for an attorney to develop the facts, assess and raise defenses, and to litigate the case (where necessary). This requirement for continuances might be an aspect of your eviction RTC law (if legally possible to put it there), or as discussed in Section 4.4, might be put in place post-enactment via regulations or a practice worked out with the courts.
Who can be a provider of legal services?
Existing eviction RTC laws typically define designated organizations in terms of which kinds of organizations can represent tenants. The possibilities include:
Nonprofit legal services providers: Most eviction RTC laws limit providers to nonprofit legal services programs that have experience in eviction defense. This limitation is motivated by the concern that for-profit companies may try to underbid nonprofit legal services programs. NOTE: Legal services organizations that are funded by the Legal Services Corporation (LSC) are subject to LSC’s restrictions related to income, asset, immigration status, and other eligibility requirements. There are exceptions to the income/asset limits if the legal assistance is wholly supported by funds other than LSC (45 CFR 1611.4), but there is no exception to the limit related to immigration status. If eviction RTC will be provided wholly or in part by LSC-funded organizations, these restrictions and their exceptions should be considered in ensuring that there will be representation available for all types of tenants.
For-profit attorneys: Some jurisdictions don’t want to exclude for-profit attorneys because they are concerned about legal services providers not having adequate staff and infrastructure to reach tenants in all areas, especially rural ones. However, where such attorneys are permitted to be part of the program, it is essential that they have been properly trained. For instance, Minnesota’s eviction RTC law, which is limited to public housing tenants, specifies that “Counsel appointed by the court must (1) have a minimum of two years' experience handling public housing evictions; (2) have training in handling public housing evictions; or (3) be supervised by an attorney who meets the minimum qualifications under clause (1) or (2).”
Attorneys from the city/county government: Some jurisdictions have debated whether the city/county government itself can provide the eviction defense lawyers. To date, none have done so, and it can raise issues, including:
Whether it might create a conflict of interest, especially when the government is also the plaintiff (i.e., evictions by the public housing authority).
Whether the community will trust that the government will provide them fair and effective representation.
Whether government lawyers may be subject to political pressure by landlords to “tone down” their representation.
Whether government lawyers have the experience to do such representation when they don’t normally provide eviction defense.
Whether it will raise confidentiality concerns when a government attorney learns something about the tenant in the course of representation that might put the tenant’s interests in conflict with the government’s.
Is there a timeline for when the law starts or is phased in?
Some laws specify a hard deadline by which the whole program must be implemented. Others are more vague about the timeline or may specify that the entity overseeing the program can determine exactly how and when to roll out the RTC. There are pros and cons to specifying the timeline in the law. On the one hand, it increases accountability. But on the other hand if the timeline is not going to be met the law would have to be amended, and reopening the law for discussion may be risky. Similarly, there are pros and cons to a longer timeline: it allows providers to staff up and adjust, but a timeline that is too long may frustrate the community, so it is a balance.
Does the law require evaluation and public reporting?
The answer to this should be “Yes”: such information is critical to ensuring the program is meeting its goals and that the public is aware of how the program is progressing. The laws requiring evaluation/reporting vary as to how specific they get as to what data must be collected and reported.
For instance, Cleveland’s law requires legal aid programs to report quarterly to the entity overseeing the program, and that entity must provide an annual report containing information on:
number of covered individuals served;
extent of legal services performed;
metrics evaluating outcomes;
projected budgeting needs for full representation to all covered individuals; and
summary of the engagement and education of tenants.
Will the law create a tenant advisory committee?
Such a committee can be a good way to ensure that tenants have input on how the eviction RTC is rolled out and on the outreach plan, as well as receive information as to how implementation is going. Ideally, committee members are compensated for their service.
In Boulder, the law created a Tenants’ Committee that advises the Coordinator. It is composed of 5 members who are tenants in the City of Boulder and who do not own real property, and “The City shall endeavor to ensure that the committee membership is reflective of the racial, gender, and sexual orientation of the City's tenants.” Committee members are paid an annual $1,000 stipend.
In Kansas City, the law specifies that the Program Director is advised / overseen by a Tenants’ Right to Counsel Committee made up of 7 voting member tenants who don’t own property (other requirements for committee members are spelled out in the ordinance). There are also non-voting members from legal services organizations.
How much else should be specified in the law versus what is determined later on?
There are a lot of details (like exactly how the rollout will be carried out, the intake process legal services providers should use, the details of the evaluation process, etc.) that don’t really need to be in the law and that may cause legislators to weigh in on issues they may not fully understand. Some eviction RTC laws take the middle ground by delegating the development of rules and regulations to a task force or administrative agency.
Philadelphia’s law requires the Managing Director to create governing regulations, which the Director has since issued.
Maryland’s law requires a Task Force to issue recommendations for implementation. The Task Force has issued these recommendations.
Though Washington State’s law doesn’t say much in the way of implementation, Washington State’s Office of Civil Legal Aid, which is charged with administering the law, created an implementation plan and has issued numerous memos and reports for courts and providers.
TIP
If you are working at the city /county level, you may want to check in with the Law Department for the city council / county commission or the mayor’s office early on to see if they raise any red flags about the provisions of your law.