CDC ban on evictions expires Dec. 31; Congress must act to prevent 30 million evictions

With new research demonstrating that evictions increase COVID-19 spread and mortality rates, the CDC’s moratorium that prevents some evictions is literally a lifesaver. But it is not enough. While Congress must extend the moratorium past its Dec. 31 expiration date (as well as remove the moratorium’s crippling limits) and allocate billions of dollars to rental assistance, there is a third essential leg of the crisis aversion stool: a right to counsel for tenants facing eviction. Without it, millions of families could still lose their homes during the pandemic, because having a right to stay in one’s home is different from having the ability to exercise that right.

Housing is undeniably a basic human need, and those who lose their homes often also lose employment, health, and child custody. Eviction is sometimes called a “scarlet E” because having one on your record can make finding safe and decent housing virtually impossible. People who become homeless are often jailed and need medical care due to the health implications of living on the street. And as mentioned before, an eviction during the pandemic increases the possibility of sickness and death. COVID-19 has put upwards of 40 million people — a third of all renters in the country — at risk of eviction and all of these consequences. And the many courts that have continued hearing evictions have either endangered tenants by holding in-person court hearings or required tenants to appear remotely without recognizing that so many low-income tenants lack either broadband access or video-capable devices. For all these reasons, it was imperative to stop evictions immediately.

However, laws like the CDC’s moratorium, and even programs like rent relief, are only as good as the enforcement and assistance to make them meaningful. And fewer than 10 percent of tenants in eviction proceedings typically have a lawyer, compared to 90 percent of landlords.

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The need for a right to counsel in eviction cases has always been present, but it has soared during the pandemic. Evictions have always been complex: even in nonpayment of rent cases, a landlord’s failure to make repairs is a defense in many states, and federal/state/local laws may provide additional protections that a tenant will not know. During the pandemic, there is the added layer that the CDC moratorium only protects tenants who have given a complicated declaration to their landlords, and even lawyers are still struggling to understand it. Getting the declaration wrong puts the tenant risk of a perjury charge and jail time. The CDC moratorium also does not replace more protective state and local moratoria, which are constantly modified. Renters, and even the courts, are unlikely to know all the federal, state, and local protections in place at any moment. Housing attorneys will. And if Congress does provide rent relief, some tenants will need legal help to complete the often-complex paperwork to obtain it.

Additionally, it has always been the case that some landlords illegally force tenants out of their home by changing locks or shutting off their utilities. But during COVID-19, a survey by the National Housing Law Project found that more than 90 percent of lawyers in 38 states have seen illegal evictions in their state, and one Nevada legal services program as well as the Minnesota Attorney General’s Office each reported receiving more than 2,000 calls about illegal evictions during the pandemic. We fully expect a huge rise in these numbers in the coming months, and unrepresented tenants will not know how to respond to this blatantly illegal activity.

Legal aid organizations will do their best to meet this increased need. But even before the pandemic, half of those seeking legal help were turned away due to lack of resources, and the problem is only worse now. A right to counsel changes that dynamic, for where there is a right, the government must provide funding for tenant counsel, rather than letting it go neglected.

For years, there has been a growing national movement to provide tenants with counsel as a matter of right. In just the past three years, seven cities have enacted such a right, and other cities and states have bills pending. The early data from these right to counsel cities is dramatic: for instance, in New York City, 86 percent of represented tenants have remained in their homes, and the eviction filing rate has dropped by 30 percent as the routine presence of counsel has discouraged landlords from filing frivolous eviction cases. These results are in line with countless earlier studies demonstrating that tenants with counsel are far more likely to avoid eviction and enforce their rights to safe homes. Even where tenants must vacate, the presence of counsel has been shown to help tenants transition to and remain in new housing. As we face this crisis, we need the federal government to support this movement.

It’s heartening to see so many cities and states use CARES Act funding to expand legal representation. However, the current need for counsel far exceeds what can be done with that funding alone. Before it is too late, Congress must provide enough new funding so that legal aid providers can ensure all tenants can exercise their right to remain in their homes.

John Pollock is the Coordinator of the National Coalition for a Civil Right to Counsel and an attorney at the Public Justice Center.