National News — Make “You Have a Right To a Lawyer” a Reality In Housing Court
By: Laura K. Abel
N.Y. TENANT – INQUILINO (Vol. 35, No. 35, March 2005)

"It’s a scene out of your worst nightmare. You come home at the end of a long day to find legal papers saying that your landlord is evicting you from the apartment your family has lived in for 20 years. That’s OK, you think. I’ve seen the cop shows—“You have a right to an attorney. If you can’t afford one, one will be appointed for you.” You go to court on the scheduled day, but while your landlord is fully represented by counsel, there’s no lawyer there to help you. When you ask the judge, he sends you to the table staffed by the City-Wide Task Force on Housing Court in the lobby, and to the court’s Resource Center. You try both places, which give you information about your legal rights, but can’t represent you before the judge.

Instead, they give you a list of local legal aid and legal services programs. But when you call their intake lines, they say that they have no lawyers available to help you for the next few weeks, and suggest that you ask for a later court date."

At your next court date, someone—you first think it’s the judge’s assistant but later realize it’s your landlord’s attorney—calls your name and hands you a “stipulation,” which appears to be an agreement between you and the landlord. It seems to say that you have to pay several thousand dollars to the landlord (which you don’t have) for back rent and that if you don’t you will be evicted. It says nothing about how the landlord never fixed that leak above the shower—the one that caused mold to spread all over your bathroom ceiling—or about his failure to provide heat last week. You’re not sure, though; there are legal terms—like “final judgment,” “warrant to issue forthwith”—peppered throughout the document, and you’re so nervous you can’t think straight. The judge says you can’t adjourn the case again and that you must either agree to a stipulation or proceed to trial that day with only five days to pay any judgment. You don’t know what to do. How are you supposed to figure out the housing code, Housing Court procedures, and argue against a seasoned lawyer, with no lawyer by your side—and if you lose, you lose your apartment?

Lopsided justice
Welcome to the real world. Despite the often repeated “You have a right to a lawyer” line, the fact is that in most civil cases— including eviction proceedings in Housing Court— there is no right to counsel. The federal and state constitutions have never been interpreted as requiring a right to counsel in these circumstances, and there is no legislation creating such a right. The federal, state and local governments all contribute to legal-aid and legal services programs, as do foundations, firms, and private individuals, but those programs can only afford to provide lawyers for a small minority of the low-income people who need representation in civil suits. This is certainly the case in the New York City Housing Courts. A 1993 study showed that while 98 percent of landlords had lawyers, only 12 percent of tenants did. Housing Court and the housing laws are not designed for non-lawyers forced to represent themselves.

The state’s highest judge once described New York’s housing laws as “an impenetrable thicket confusing not only to laymen but to lawyers.” Even when tenants without lawyers have strong defenses against an eviction, they are often unaware of those defenses, or are unable to assert them in a way that gets the court’s attention.

Several studies have shown that tenants represented by lawyers are significantly more successful in Housing Court than tenants who represent themselves. For example, one study found that only 22 percent of tenants with lawyers ended up with final judgments of eviction against them, compared with 51 percent of unrepresented tenants. That suggests that a lot of people are getting evicted solely because they were unable to find a lawyer to help them. Similarly, the city Human Resources Administration (HRA) has found that the lawyers it has funded to represent tenants had a 90 percent success rate: In the cases studied, they prevented the eviction of 3,600 families or enabled them to return to homes from which they had been evicted.

The consequences of eviction—particularly avoidable eviction— are severe and far-reaching. In New York City’s expensive housing market, a sizable number of people who are evicted end up homeless. Approximately 19 percent of the families in emergency shelters in New York City were recently evicted. Many more evicted people double up with friends or family members, and become homeless when they wear out their welcome in those overcrowded apartments.

Housing Court judges say that one of the most difficult aspects of their jobs is handling the cases of tenants without lawyers. A judge who takes the time to explain the court’s procedure risks being accused of playing favorites. Judges are actually barred from providing legal advice. At the same time, a judge who leaves unrepresented tenants to fend for themselves ends up presiding over a blatantly unfair proceeding.

Restoring the balance: a proposed solution
With homelessness at record highs, tenants’ advocates, good government groups, concerned lawyers, and local legislators have proposed that the city create a right to counsel in Housing Court. The proposed legislation is still being developed, but the goal is to guarantee that low and moderate income tenants would receive legal representation when they are facing an eviction. The city could provide funding to nonprofit legal aid and legal services programs, which would be under contract to provide a lawyer for every eligible person.

At first, however, the initiative would create a pilot project providing counsel for some categories of litigants. Advocates and the city could study how well that works, how much money it saves the city, and whether it provides other benefits for the city. If the pilot project is a success, it could be expanded.

Despite the cost of providing lawyers for tenants facing eviction, it will save the city money almost immediately. A “special master” overseeing homelessness litigation against New York City, the Association of the Bar of the City of New York, the Community Training and Resource Center, the City-Wide Task Force on Housing Court, and HRA itself all agree. HRA’s calculations show that the city will avert four dollars in costs associated with homelessness for every dollar that it spends on eviction prevention.

Also, our democracy rests on the fundamental principle that everyone has equal access to due process in the courts. When this principle is violated, the courts start lacking legitimacy, and the democratic nature of our society becomes suspect. It is hard to see how tenants have equal access under the law when they must appear in court without that most necessary asset, lawyers, and must argue against and enter into complicated written agreements with landlords’ lawyers. The contest is even more unequal for the large percentage of New Yorkers who are not proficient in English.

Providing lawyers for people facing eviction will also help preserve both affordable housing and the character of our communities. In many instances, after a tenant of a rent-regulated apartment is evicted, the landlord is able to raise the rents sharply, under regulations permitting huge increases on vacant or renovated apartments. It costs the city far more to create new affordable units than it would cost to provide legal assistance to prevent those evictions. Moreover, with rents at record levels, people who are evicted often find that they must leave their neighborhoods, or even the city, in search of new housing. When large numbers of people are forced to leave historic neighborhoods, it threatens to destroy the complicated mosaic that is New York’s greatest strength. Providing lawyers to reduce the number of preventable evictions will, consequently, help the city maintain its historic communities against the economic pressure to turn over every apartment, and raise the rent, each time an eviction occurs. The character of the city is at stake. This is an effort that deserves success, but it will take the concerted effort of concerned individuals and advocates to make it happen.

If you have any questions or would like more information, or to discuss your rights please contact us (773) 478-1133, email us, or use our online request form.

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