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Voters OK’d Legal Aid for Tenants Facing Eviction — Now Comes the Hard Part

San Fancisco Public Press
 — Aug 27 2018 - 8:19am

San Francisco has until July 2019 to set up multimillion-dollar program under Proposition F

Over the past year, with housing still expensive and scarce, more than 1,600 San Francisco tenants have received eviction notices. On June 5, city voters made history, guaranteeing legal help to anyone facing eviction, regardless of income.

Proposition F passed with more than 55 percent support, making San Francisco, where renters make up nearly two-thirds of all households, the first city to pass such a law through a voter-approved initiative.

Now comes the hard part: Meeting the deadline to set up the multimillion-dollar program by July 2019. 

In San Francisco, voters could face a similar measure next year.

The results will likely push forward a growing “right to counsel” movement for civil litigation. San Francisco is among a handful of cities across the country reframing discussions about when Americans should be given legal representation in non-criminal cases.

“There is a movement afoot,” said Gloria Chun, an attorney at the Justice & Diversity Center of the Bar Association of San Francisco. “Everyone is keeping a close eye on San Francisco.”

New York Led the Way

San Francisco’s road to universal representation for tenants was paved in August 2017, when New York City Mayor Bill de Blasio signed into law the first-in-the-nation Right to Counsel in Housing Court. By the end of a five-year phase-in, an estimated 400,000 New Yorkers facing eviction will have access to some form of free legal assistance. Those earning less than 200 percent of the federal poverty line ($24,280 for an individual or $50,200 for a family of four) will be entitled to full representation throughout the eviction process. Those over that threshold will receive one consultation with a nonprofit or other legal services organization on the city’s list of providers.

That law came after years of lobbying by housing advocates and a two-year period in which an explosion in city funds for civil legal services for tenants was shown to help keep residents in their homes. Since de Blasio took office in 2014, funding for legal assistance has risen from $6 million to over $77 million, and evictions have fallen 27 percent.

San Francisco’s program is historic in that there will be no income limits, an acknowledgment that “middle-class tenants can’t afford lawyers either,” said Dean Preston, the chief proponent of the ballot measure. Thus, it will cover all of the city’s roughly 225,000 rental units, including the estimated 172,000 covered under rent control.

Preston, an attorney and executive director of the statewide advocacy group Tenants Together, calls Proposition F a change from a “merit-based” to a “rights-based” model. Until now, a limited number of pro-bono attorneys has had to pick and choose which clients to represent. “We shouldn’t be deciding who does and doesn’t get an attorney based on how strong we think their case is,” said Preston. “Everyone should have representation.”

Other jurisdictions have taken notice, and various forms of so called right-to-counsel pilot projects and legislation have popped up in Washington, D.C., Denver, Los Angeles and elsewhere.

Though locales vary in size and demographics, the imbalance in power is consistent: a majority of landlords have attorneys, while less than 10 percent of renters receive legal assistance.

“I’ve not yet seen any place where the rate of tenants that are represented comes anywhere close to the rate of landlords,” said John Pollock, coordinator of the National Coalition for a Civil Right to Counsel. “In some places the housing laws protect tenants more than other places, but without a lawyer to enforce those protections, it really doesn’t have much value.”

Pollock said his organization is in contact with about two-dozen jurisdictions, including Baltimore, Boston and Philadelphia.

“It’s like almost every week I get in touch with advocates in another city,” he said. “We’re going to look at what happened in San Francisco and evaluate whether we can take a similar approach in other jurisdictions. It’s hard to imagine a place that doesn’t need it.”

How the Measure Will Work

With the election of Mayor London Breed, it’s not clear how the Mayor’s Office of Housing and Community Development will choose to implement Proposition F’s mandate. Breed was a lukewarm supporter of the measure, which pushed aside a version she proposed that included means testing. She wanted a right-to-counsel law to go through the Board of Supervisors, rather than through a harder-to-tweak voter-approved initiative.

But Preston said the law was crafted to allow city officials to determine the best way to implement it. The only stipulation is that MOHCD has 12 months to come up with a plan. There are no requirements for how it would be funded, or who exactly would provide the legal assistance.

“We wanted this to be flexible and to be clear that the tenants have a right to counsel, that the city is obligated to provide it, to fund it. But not micromanage from the ballot how exactly the city does that,” said Preston, who announced in July that he was running for Breed’s former Board of Supervisors seat in an election to be held no later than 2020.

He thinks the most likely route will be for the city to expand existing programs like the partnership with the bar association. That's fine with Carolyn Gold, who runs the local bar's tenant-landlord program.

“If the city wants to maintain the system they have and just grow it, then so be it,” she said.

Another indicator will be the city’s annual budget, which took effect July 1. With the 12-month clock on implementing Proposition F’s mandate ticking, Preston said there is a lot of planning and hiring that will need to happen this fiscal year.

“This is not something that can be fully activated in a matter of weeks,” he cautioned, adding that the timeline “is an aggressive one.”

“There’s no way that a fully functioning right to counsel will be in effect in July of 2019 if they don’t put some money in to ramp that program up,” he added.

Since 2012, the city has dedicated more than $2 million annually to providing legal services to some, far short of what would be needed for universal representation.

The city controller estimates that Proposition F will cost between $4.2 million and $5.6 million annually. Advocates predict it will be a money saver in the long run.

“It’s really an investment that benefits everyone,” Pollock said. “When people lose their evictions and lose their housing, if they do wind up in a shelter, if they do wind up in jail, having to apply for public benefits because they lose their jobs, these are all costs that we all pay for, and they’re significantly more expensive than paying for a tenant’s attorney.”

‘Will the Tenant Cave?’

Earlier this year, Gold was contacted by several tenants facing eviction. “All had strong defenses,” she said. “At least two of them, I would say, the landlord had absolutely zero grounds for their eviction.”

But no lawyers were available to represent them in court. Two of the tenants gave up, opting for a settlement that required them to move out. The other two held on and kept calling her.

Moments before a judge was preparing to hear their case, Gold made a last-ditch effort and found an attorney.

“As soon as that person entered the courtroom, the lawyer for the landlord said, ‘We do not intend to try this case,’” Gold recalled. “That’s why it’s so critical to have an attorney for your trial, because a lot of the cases really are just saying, ‘Will the tenant cave?’”

The San Francisco Rent Board tallied 1,657 eviction notices filed between March 1, 2017, and Feb. 28, 2018, a 12 percent decline from the previous year. The annual average over the past decade is 1,723.

The board does not know how many tenants were evicted, however. It has records only for eviction notices in cases when tenants did not pay rent or were not living in rent-controlled units. Landlords also are not required to report all evictions.

Roommate eviction notices made up the largest proportional decrease (73 to 22), followed by habitually paying rent late (110 to 59). The largest proportional increase was in capital improvement eviction notices (56 to 117), followed by Ellis Act evictions (127 to 201). Eviction notices for not granting landlord access also rose (16 to 23).

The biggest numbers of eviction notices were for breach of rental agreement (402), committing a nuisance (337) and owner or relative move-in (297).

In 2017, the Justice & Diversity Center represented 642 tenants facing eviction who did not have lawyers at settlement conferences. For those who got help, representation was quite often the difference that kept tenants in their homes.

Assistance from an attorney “is a critical linchpin in keeping people housed,” said the bar association’s Chun. “You really should have access to one when basic human needs like housing and child custody are at issue.”

In the crusade to represent San Franciscans facing eviction, 2012 was a pivotal year. The city declared itself the nation’s first “Right to Civil Counsel City.” A yearlong pilot program leveraged $100,000 into more than $2 million in pro-bono representation, coordinated by the bar association. During a crucial moment of citywide displacement, more than 800 cases received some form of legal assistance, and a Stanford University analysis found that more than 600 tenants facing eviction were more likely to avoid homelessness at least in part due to having a lawyer.

But despite the project’s success, there still weren’t enough lawyers to go around.

“We all realized that you cannot depend on pro bono to make sure that everybody will have an attorney,” Gold said.

Proposition F’s primary opposition came from the San Francisco Apartment Association. Representing about 4,000 members, the organization argued that “evictions in San Francisco are actually pretty rare and are highly regulated,” according to spokesman Charley Goss.

He maintained that many evictions were for “just cause,” involving tenants who should not receive free legal representation. “To the extent that people are being evicted for damaging the building, a decrease in the quality of life for other people in the building, being a nuisance for other residents in the building, we don’t believe that the city and taxpayers should fund eviction defense for those instances,” Goss said. “And we also don’t believe that we as taxpayers should fund eviction defense for very wealthy people.”

But Gold has observed that the vast majority of those facing eviction are poor or middle class. “There are probably 40 to 50 cases a year that I see where those tenants would not fit within the income guidelines that our agency represents,” she said. “And even for those folks, a lot of them are just outside of our income guidelines, which means they really don’t have the disposable income available to them to be able to hire an attorney.”

Landmark Criminal Case Ruling

The passage of Proposition F is a step forward in what Chun called the “right to civil counsel movement,” which includes not only housing, but food, health care and child custody.

In legal circles it’s referred to as “civil Gideon,” named for the 1963 U.S. Supreme Court ruling Gideon v. Wainwright, which declared that indigent defendants charged with a crime have a constitutional right to an attorney at no cost.

Pollock said people often have just as much at risk in civil cases. Since the landmark case, there’s been a slow and steady push to enshrine the same right to representation.

“Jail is not some sort of magic dividing line,” Pollock said. “Housing court is a place where people stand to lose so very much.”

He listed several potential dire consequences of eviction: job loss, court-ordered removal of a child, being arrested for being homeless, or hospitalization because of a medical condition exacerbated by living on the street.

“The idea that these things are somehow less important than going to jail is increasingly hard to stomach in our society,” Pollock said.

Although Preston thinks Proposition F will have “a dramatic impact on reducing evictions,” he points out that while legal representation can help tenants, “it doesn’t mean they win.”

“It just means that they actually understand the proceedings and have someone to assist them in presenting their case to a court,” he said. “And if they’ve done something wrong then they’ll lose their case and they’re going to end up evicted, and the right to counsel wouldn’t change that.”

Gold is similarly reserved in her hopes for an instant transformation of a city in rapid demographic change.

“I don’t think that eviction defense alone is going to make you feel or see a difference in our housing crisis. It’s an important point,” she said.

“You want to keep people housed who have affordable housing because they’re in a rent-controlled unit or they’re in subsidized housing,” Gold added. “If those people lose their homes, you’ve just compounded your housing crisis because there’s nowhere for them to go.”

This is an update of an article that was part of the Public Press' coverage of the June 2018 special election. It also appears in our summer 2018 print edition.