Lily Austin, Law & Public Policy Scholar, JD Anticipated May 2020
Your home is where you should feel safe and secure, a respite from the outside world. It should also be a place where you are properly shielded from the elements and can cook, clean, and otherwise meet your basic needs. However, finding and maintaining such a home is a difficult challenge for many Philadelphians these days. Stagnant wages and rising rents are a problem, as well as aging housing stock. In a city and state where the minimum wage is still $7.25 an hour, no one making minimum wage for full-time work could afford a two-bedroom apartment within Philadelphia City limits. One would need 3.4 full-time, minimum wage jobs in order to afford a two-bedroom apartment at the average fair market rent. These forces set up a reality where accessing decent housing within your budget can be a formidable task. Furthermore, once one finds housing, saving up for another rental deposit and funds to move if the current housing has serious habitability issues or if you experience harassment from your landlord is very difficult. Landlords and tenants in the City are not evenly matched. Landlords hold many more cards than tenants these days.
Considering all of this, it should also not be surprising that Philadelphia landlords file 150% more eviction actions against tenants than the national average. In a city where half of the population rents, 1 out of every 14 renters faces eviction actions each year. In addition, landlords have legal representation 80% of the time, while only 7% of tenants have legal representation. The disparity in legal representation often means that eviction actions are not fairly resolved. Tenants often fail to raise available affirmative defenses. As a result, too many low-income Philadelphians are displaced from their homes, and whole families and communities suffer. The entire City suffers from the lack of a fair fight in the courtroom because of the high costs of providing services to people who have been evicted.
Philadelphia just passed an ambitious law to help tackle this pervasive imbalance of power and the eviction crisis. Low-income tenants facing eviction will now be guaranteed free legal counsel. The City still must decide how to fund this right to counsel program and how it will operate. There are several important considerations for ensuring this new legal right translates in practice to helping tenants access justice.
First, it is important to note that this not a completely new legal service available to low-income tenants in Philadelphia. Legal aid organizations have been offering free legal assistance to low-income tenants for years, and they have the expertise and community connections in this area. Thus, one of the first key elements to implementing right to counsel is that the legal aid organizations should house the attorneys who will represent tenants.
Secondly, Philadelphia is starting from a place with a high rate of default judgments against tenants, which means that many tenants currently do not come to court to defend themselves in eviction actions. This reflects in part again the imbalance in the power dynamics between tenants and landlords. Philadelphia should also heed experiences of other cities that have already started right to counsel programs and have observed that some landlords use intimidation and harassment techniques to try and persuade tenants not to claim this right. In order to ensure that tenants have the best chance at accessing justice, everyone needs to pitch in.
(1) The City should include some funding for community groups to conduct outreach and education to tenants about their rights and the new right to counsel. Tenants cannot properly fight eviction actions if they do not know about their rights, and their right to seek free legal representation. To that end, courts should also notify tenants that they have a right to counsel when they send out notices of the eviction action against them,
(2) Courts should also monitor what happens in the courtroom. Right now, it is common for attorneys for landlords to try and call unrepresented tenants out of the courtroom to discuss settling the case before the judge arrives to the court room and the court session begins. This practice cannot be allowed to continue now that the right to counsel program exists. Court staff should do everything possible to notify unrepresented tenants that they have an opportunity to seek counsel, and judges should ask tenants if they want to seek counsel before approving any settlement deals.
(3) Lastly, more resources should be placed in the physical building of Municipal Court, including public benefits assistance, budget counseling, loan-assistance programs, and space to talk with legal counsel. This concept of placing more community-based services in the court system can increase access to crucial services, provide judges with more access to comprehensive and up-to-date information, and possibly also increase perceptions of procedural fairness of the court system. These are all important factors that can help Philadelphia achieve faster, more durable, and more just case resolutions.
Ultimately, if these important players collaborate to make right to counsel work for Philadelphia tenants, the entire city will improve from helping tenants have more secure housing.