A housing lifeline for low-income residents

Anyone who's ever watched a TV cop drama knows about Miranda warnings and a citizen's constitutionally protected right to an attorney when accused of a crime.

But what you may not learn on television is that when it comes to civil cases, including housing and eviction disputes, there is no right to counsel in a system that favors landlords.

The Housing Justice Alliance, an initiative led by the Legal Aid Society of Cleveland, aims to restore balance for low-income residents who could never afford an attorney on their own.

If successfully established, it could make Cleveland just the fourth city in the country — behind New York City, San Francisco and Newark, N.J. — with a guaranteed right to counsel, something that stands to benefit not just the individuals and their families facing eviction, but the wider community and, perhaps counterintuitively, even the real estate market itself.

Statistics from the Ohio Supreme Court indicate there are roughly 9,000 evictions filed each year in Cleveland — where about 58% of all homes are rentals — and about 20,000 countywide.

According to an analysis by The Eviction Lab, an average of 12 people were evicted each day in Cleveland in 2016, where the eviction rate of 4.53% is nearly double the national average.

Traditionally, just 1% to 2% of those cases involve an attorney on the tenants' side, according to legal aid attorneys, while landlords almost always have lawyers in tow.

The hearings typically last all of five minutes, said Hazel Remesch, supervising attorney in the housing group for Cleveland Legal Aid. The nonprofit regularly assists low-income residents facing eviction, although because of already stretched resources that's still only a fraction of those who might qualify for help.

As Remesch explained, the courts are designed to move eviction cases through the system quickly, tipping the scales in favor of lawyer-backed landlords versus tenants who often don't show up to their hearings at all. Those who do appear often don't know their rights or how to plead a case when they might have recourse against their landlord for something like unsuitable living conditions. Without a lawyer, those concerns are almost never raised.

"At the end of those five minutes, the usual outcome is the tenant loses their housing. But they've been put in that situation without having the information on what their rights are, what defenses the could have raised, or told of what negotiations representation could bring," Remesch said. "I think the system has been created in a way that it's really landlord-friendly."

Critics say housing courts have become machines designed to process evictions, not necessarily to administer justice.

"So what a right to counsel does is change the landscape," Remesch pointed out. "It disrupts the system and generally makes the process more fair."

Securing funding for the program is legal aid's current challenge.

The idea is to address systemic issues created by eviction, which can have a compounding impact on displaced tenants, who, without their home, may end up on the streets or in prison, or may lose their job or kids, or worse.

Affected children may end up bouncing between school districts, or missing school altogether, creating instability that begets other problems and straining social services.

So addressing eviction means addressing the factors that lead to homelessness, and the other issues that leads to, said John Pollock, coordinator for the National Coalition for a Civil Right to Counsel.

"Say someone becomes homeless or ends up in a shelter. Those are taxpayer-funded services. Say they went to prison or there's court time spent on prosecuting them for whatever vagrancy crime. The cost of shelter services (in New York City) alone was something like $36,000 a year for one family," Pollock noted. "When you look at the cost of counsel, it's a pittance compared to that."

Businesses don't tend to like homeless people and often lobby for ordinances criminalizing homelessness, Pollock added. Economically speaking, "the better answer is not to make people homeless in the first place." That can often be as simple as helping someone bridge the gap of one rent or utility payment or helping them negotiate a way to stave off eviction.

"We consider a right to counsel as preventive legal medicine," Pollock said. "It's intervening in a system at the point where you can treat the underlying problem instead of just the symptom."

There's also the ideological sense of justice that comes with it and is absent otherwise.

Yet half the people who face eviction don't even show up to court at all, let alone with a lawyer.

"And why would that be? Because the system is horribly broken and they know it," Pollock said.

In Cleveland, legal aid is ironing out the details of its inaugural program as it works with city council. That includes finalizing the parameters for support and priorities for anyone receiving help, such as having a young family, said legal aid managing attorney Abigail Staudt.

There also needs to be a framework for the rollout of the entitlement, which could take several years to hit full implementation, similar to what New York City is doing.

Ultimately, legal aid would like to see the right to counsel expand for all of Cuyahoga County.

Other details involve how the attached funding mechanism could work. For example, the related funds might be used to outright cover a single month of rent or a utility payment for a needy tenant, avoiding the need for an eviction hearing at all.

That all comes down to funding, the need for which could vary depending on the look of the program. Securing funding likely means striking a number of community and philanthropic partnerships.

Like many grass-roots initiatives, the challenge in moving from concept to practice, whether with donor groups or city council, will be getting that first group to step up with money.

"We already know it's the morally right thing to do," Remesch said. "We are trying to solve really major issues our community has faced and in that process, it will make the bottom line look better for our entire community."

New York City legislated a right to counsel in summer 2017, following a three-year tenants' rights campaign, becoming the first city in the U.S. to do so. It took backing by city council, which established the right through legislation and a mandate to fund it. The related funds largely pay for legal aid attorneys, who assist those facing eviction living at 200% or below of the federal poverty line. The program is being phased in through various ZIP codes until fully implemented in 2022.

It's a little over $150 million for five years, said Susanna Blankley, coalition coordinator for the Right to Counsel NYC Coalition.

"Evictions are about power, not individual facts of a case," Blankley said. "They're used en masse because landlords have had control over the court system for so long. It's a tool to scare, gentrify and displace. It won't shift the balance of power unless all tenants know they have a right to fight with the same tools landlords have in housing court."

According to New York City's Office of Civil Justice, the program had a transformative effect in just one year. In that time, 84% of tenants provided a lawyer stayed in their homes (22,000 households), with total evictions dropping 14%. And landlords began suing people less often, with eviction filings dropping 5% by the next summer.

Other cities followed with different programs backing the right to counsel with variations between them. Pollock said similar initiatives are gaining ground in other markets, including Philadelphia, Detroit and Los Angeles.

A study commissioned in Philly (one is in the works in Cleveland involving Case Western Reserve University, but hasn't been completed yet) showed that 30% of tenants facing eviction would not be able to afford legal representation. While serving them could cost about $3.5 million annually, the costs associated with things like social services that would be avoided if those tenants weren't evicted would be more than $45 million.

That creates an estimated ROI of $12.74 for every dollar spent supporting low-income tenants facing eviction, said Neil Steinkamp, a managing director with Stout Risius Ross, a Chicago advisory firm that completed the Philly study and others like it. He suggested that results of a study in Cleveland might look similar to Philly's.

While Cleveland Legal Aid said the dollar figure for funding a program annually in Cleveland has not been determined yet, it's likely in the neighborhood of low to mid-seven figures.

Critics of a right to counsel might include landlords. A May Cleveland.com story about city council preparing to introduce legislation related to Cleveland's Housing Justice Alliance drew commenters who criticized council for "working against landlords who only wish to receive rent on time." Some suggested it would be a deterrent from owning rental properties in the city.

But criticism is more of a "knee-jerk" reaction by some in the landlord community, said Christian Patno, an immediate past president of the Cleveland Academy of Trial Attorneys and HJA advisory committee member.

"With this, we think we will be able to help landlords by facilitating tenants who are consistent and able to stay and help those tenants who have complicated issues or just aren't understood to help facilitate a discussion and resolve a dispute so eviction can be avoided," Patno said. "In that way, it's a win-win."

Landlords sought out by Crain's generally praised the HJA.

"Anyone working in the multifamily business, regardless of area of specialty, deals with evictions. It's an inevitable part of the business. We believe regulations like the HJA will have a negative impact on property managers who do not follow the rules, and we believe that this outcome is precisely the point of the legislation," said David Heller, CEO of NRP Enterprises, which has more than 50 communities across Northeast Ohio. "We can imagine that the legislation may create some additional work for the management companies who play by the rules, but as a whole, we believe that this is a small price to pay if it has a beneficial impact on the unfortunate individuals who find themselves on the receiving end of unfair treatment.

"We think the greatest application of the HJA will be in circumstances where residents are battling cases of wrongful eviction, such as discrimination and other unlawful practices," he added. "In those instances, we see this as a great benefit for those seeking representation."

After learning of legal aid's work, Garfield Heights Municipal Court Judge Deborah Nicastro was inspired to look at a smaller right-to-counsel program in that city, independent of the one sought in Cleveland that could serve as a pilot program.

Nicastro's court handled 900 evictions last year, much fewer than Cleveland. Still, most people "have no clue what their rights and responsibilities are," she said, adding that most of the time spent with tenants in housing court is educating them. Legal support would likely result in different outcomes beyond eviction.

"I thought this would be a good way for them to have individual representation to explain all that before we get into the trial process," she said. "A judge has to be impartial during hearings. I'm not supposed to help a landlord or tenant. But when the understanding is deficient on one side, then the system just doesn't work."

Click here to read the full article in Crain's Cleveland Business