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CalMatters: As California Evictions Boom, Whether Tenants Get Lawyers Depends on Where They Live

Read the CalMatters article here.

As he cared for the plants on his sunny patio and walked through the building’s tree-lined courtyard, he could feel stress peeling away. No more stops by police. No more neighbors in his business or strict hotel rules.  At the apartment, he was free.

But now, three years later, he had received an eviction notice. A building manager had raised concerns about the behavior of Lafayette’s guests. The notice said Lafayette had a right to legal counsel and gave a phone number. The streets were scary; he couldn’t go back there.

He picked up the phone.

Lafayette was lucky: San Francisco is the only city in California that guarantees tenants access to an attorney in eviction proceedings. The city is one of 17 nationwide, plus four states, that have launched right to counsel programs since New York City pioneered the idea in 2017.

While the Constitution grants all criminal defendants the right to counsel, that doesn’t extend to civil cases — even those with unusually high stakes, such as when a person risks losing their home. Nationwide, fewer than 5% of tenants in eviction cases are represented by an attorney, compared to more than 80% of landlords, the National Coalition for a Civil Right to Counsel estimates.

As evictions soar across California now that Covid-era moratoria have expired, tenant advocates are pushing for more cities and counties to follow San Francisco’s example. Los Angeles city and county took the first steps toward establishing a tenant right to counsel last year. Having a lawyer, tenant advocates say, can make the difference between a tenant keeping their home — or having the time and money to find a new one — and being put out on the street.

But access to this legal help varies widely depending on where you live, even among cities that are just a few miles apart.

Floods, then an eviction notice

Across the Bay in suburban Oakley, Nancy Wiles also was facing eviction. She’d lived in The Oaks Apartments, a sprawling low-income housing complex, since 2014. At first, she liked the ample grounds studded with oak trees and the fact that her nephew lived nearby.

But then the 63-year-old hairdresser says, her building suffered a series of floods, starting with a pipe bursting just outside her ground-floor apartment. Ankle-deep water filled the hallway, with tenants trying to block their doorways with trash bags. Another time, she said, water from a third-floor leak cascaded down the stairs like a river.

Apartment managers relocated Wiles to a hotel while they fixed the leaks, but she said the problem never seemed fully repaired. Mold sprouted on her bathroom ceiling, said Wiles, who suffers from asthma and began using her breathing machine three times a day.

The costs also added up, she said. While she paid her normal rent during weeks-long hotel stays, she had to buy takeout food and, eventually, a slow-cooker to make meals. When apartment management failed to make minor repairs, like fixing a sink that wouldn’t drain, Wiles would pay a family member to take care of it. Already working less due to the pandemic and a disability, Wiles started falling behind on rent.

By September Wiles had had enough. She and her 23-year-old son were packing their bags to move to a new apartment when there was a knock on the door: Wiles had been served with eviction papers. “My heart went boom,” she says.

Then she remembered she was moving out anyway. The paperwork, she figured, could wait. She stuffed it in her purse and kept packing — a decision that would cost her later.

Navigating the system

Evictions can happen fast and are often confusing for tenants. After receiving a first notice that their landlord has filed an eviction case against them, called an unlawful detainer, tenants have five days to respond in writing or they may automatically lose their case. Once a response is filed, a landlord can request a hearing and the court must schedule it within three weeks.

In Contra Costa County where Wiles lives, the vast majority of tenants are unrepresented and face numerous barriers in navigating eviction court, says a 2022 report by the East Bay Alliance for a Sustainable Economy.

Without legal counsel, tenants often don’t realize they need to respond to an eviction notice and so they lose their cases by default.

Court staff encourage tenants to resolve their cases through mediation, the report found. But in these informal conferences overseen by volunteer mediators, they face off against landlord attorneys who are far more seasoned.

When tenants do make it to court hearings, they often don’t realize that the case will be decided then and there. They don’t bring evidence that could help their cause, such as proof that they paid rent, or that the landlord refused to accept funds from rental assistance programs.

Eviction “is a very opaque, technically complex and legalistic process,” said Alex Werth, a policy consultant who wrote the report. “And it is particularly difficult to navigate — whether you are a tenant or a landlord — without an attorney by your side.”

Studies show legal representation increases favorable outcomes for tenants. In Philadelphia, which launched a right to counsel program for low-income tenants in select zip codes in 2022, tenants facing eviction in those zip codes were less likely than others to receive default judgments in favor of the landlord or be locked out of their homes. And eviction cases were more likely to be withdrawn, according to a report by the Reinvestment Fund. (Cases also took longer to resolve, an outcome that might concern landlords.)

Choosing to fight

Back in San Francisco, the city’s taxpayer-supported Eviction Defense Collaborative matched Corey Lafayette with Jacqueline Patton, a tenant attorney with six years’ experience. A week later, they gathered in Lafayette’s apartment along with a social worker for the collaborative to talk strategy.

Unemployed and relying on disability checks, Lafayette had fallen behind on rent during the pandemic. But when he tried to cover the debt, he said, the apartment manager wouldn’t accept his money.

Lafayette, who is Black and gay, said he thought discrimination was at play. He recalled a conversation he’d had with the apartment manager two years ago.

“A week after he took over, he told me this is a family-orientated facility and I don’t fit in here and he’s going to get me kicked out however he can.”

The manager denied making that statement when questioned later by a reporter. “I would never say anything like that,” he said, declining to comment further.

Lafayette’s eviction notice contained a laundry list of complaints, from keeping the unit in an “unsanitary condition,” to allowing guests to visit at night, to causing a fire hazard by “putting aluminum foil under the burners of your stove.” Patton and the social worker, Brandon Williams, looked around at Lafayette’s neatly arranged sneaker collection and sparkly red dinette chairs. They’d seen hoarder apartments; this wasn’t one.

Video evidence Patton requested from Lafayette’s landlord showed people loitering near the apartment building, Patton said, but no proof any of them were his guests. Lafayette, who walks with difficulty due to an old gunshot wound, said he sometimes relied on a friend to open the gate for him when a delivery arrived, or to help with chores like laundry. He admitted that one of his guests had taken packages belonging to another tenant, an incident mentioned in the complaint, but said he was “devastated” when he found out and told the person to return them.

Williams empathized with Lafayette’s complaint of discrimination. “You have to realize you’re in San Francisco in 2023 being told by a white man that you don’t belong. It’s a shame but it’s the reality of this city,” said Williams, who also is Black.

Eviction disproportionately affects Black people. In a large nationwide study, Princeton University’s Eviction Lab found fewer than one in five renters nationwide are Black, but more than half of eviction filings are against Black renters.

Patton had considered proposing a compromise to Lafayette’s landlord, the non-profit Chinatown Community Development Center: They could transfer him to another of their buildings. But at the meeting, the three decide that they will push for Lafayette to stay in his home.

“I want to fight this,” Lafayette said.

A lawyer shortage

They’d have to fight quickly. While San Francisco provides all tenants with representation, only about 75% get the so-called “gold standard” of legal defense — an attorney to carry the case from start to finish. The rest, like Lafayette, get a lawyer for just one mandatory settlement conference; if the case isn’t resolved then, the tenant has to go it alone.

It’s one of the most often-cited problems with right to counsel programs: There simply aren’t enough experienced tenant attorneys to go around. That mismatch has become more obvious this year as eviction moratoria have expired across California, leaving courts clogged with cases in some areas.

In counties like Alameda and Los Angeles, which don’t have right to counsel ordinances but have networks of tenant attorneys offering free legal help, it can be difficult to hire for a job that, while potentially rewarding, pays less than the private sector.

Ora Prochovnick, litigation director for San Francisco’s Eviction Defense Collaborative, said she needs 50 experienced attorneys to handle the roughly 2,500 eviction cases the city sees each year. She has 45 lawyers now, though some are brand new to the field. The city spends $17 million a year providing free lawyers for tenants and has set up a fellowship program to lure more law school graduates into the work.

The collaborative triages cases, handing them off to a network of attorneys at eight nonprofit groups and deciding who will get full-scope representation based on factors like whether tenants are elderly or have children, a disability or a language barrier.

The effort, which launched in 2019, is paying off, says the Mayor’s Office of Housing: About 70% of San Francisco tenants who receive full-scope legal representation end up staying in their homes.

“We are correcting a power imbalance that has existed for way too long,” said Prochovnick. “We are preventing displacement to the streets and outside the Bay Area.”

An unwelcome surprise

Weeks after getting her eviction notice in Oakley, Nancy Wiles still wasn’t sure what to do. She showed it to a friend who is a tenant advocate on the board of the nonprofit Monument Impact. They went to the Pittsburg courthouse to investigate.

At the courthouse, Wiles got discouraging news: Because she hadn’t responded to the notice in time, the court filed a judgment against her. She owed nearly $7,000 to her former landlord, the court said. The eviction also could go on her credit history, reducing her chances of landing an apartment in the future.

Wiles, who survives mostly on $1,000 a month in disability benefits, was crestfallen. “I can’t afford anything like that.”

While she admitted she’d fallen behind on rent, sometimes making partial payments, she pointed to receipts showing she had paid more than The Oaks was alleging. The Oaks’ property management team and lawyers for the property owners did not respond to messages from CalMatters seeking comment.

Wiles thought she should be compensated for the cost and stress of living in a poorly-maintained apartment, but without understanding how eviction proceedings worked, she’d never appeared in court to make those arguments.

Contra Costa County last fall began paying nonprofits to run legal clinics at courthouses for tenants like Wiles. But attorneys say court staff barred them from advertising the clinics within the courthouse and many tenants are still falling through the cracks.

“It’s the savvy tenants that know how to Google and find resources” that come to the clinics, said Mihaela Gough, an attorney with Centro Legal de la Raza. “When we do go to court, there are always a lot of tenants who aren’t represented that we haven’t heard of.”

Right to counsel campaigns launch

Elected officials in some California cities and counties are hoping to set up right to counsel programs similar to San Francisco’s.

In December the Los Angeles City Council asked its city attorney to draft an ordinance guaranteeing legal counsel to tenants who face eviction and earn 80% or less of the area’s median income. Funded by a tax on real estate sales of $5 million or more, the program would phase in as money becomes available. LA County supervisors passed a similar measure in July.

“We’re facing at this moment a city that is completely crippled by its housing costs and as a result tenants are facing incredible challenges,” said Nithya Raman, the city councilmember who led the effort.

Community groups in Fresno and Bakersfield have unsuccessfully pushed to establish a tenant right to counsel.  Both cities, however, have set up eviction protection programs to offer education, mediation, and in Fresno’s case, legal help to tenants when the city attorney says their landlords have acted illegally.

The right to counsel is “having a moment” partly because “the pandemic shone a light on tenant housing precarity and the widespread nature of evictions,” said Werth.

Landlord groups have opposed some right-to-counsel campaigns. “Providing a taxpayer-funded attorney to a tenant who did not pay their rent does not stop the eviction,” said Joshua Howard, an executive vice president of the California Apartment Association. “Those funds would be better used to provide rental assistance to prevent the eviction process from ever starting.”

Heading to court

On a November Monday, Lafayette walked into the San Francisco Superior Court building, his hands trembling.

“I’m nervous. I just want this to be over,” he said.

In a courtroom packed with tenants, landlords and attorneys, Patton and the lawyer for Lafayette’s landlord told Judge Ronald Quidachay they were close to reaching a deal. He sent them into a hallway to negotiate.

Patton had drafted a settlement agreement in which Lafayette agreed to pay $2,700 in overdue rent, with help from a city program, and ensure his guests do not disturb other tenants. For him to be in violation, the landlord would have to prove that any “guests” were actually there to visit Lafayette. And Lafayette would get two things he’d been requesting for years: access to a parking space and for his name to be added to the apartment’s call box.

“One of my goals is to not just stabilize the housing but to make it better for someone,” said Patton. If tenants feel they are benefiting from an agreement, she said, they’ll be more likely to keep it, avoiding another eviction.

Down the hall, Dylan Tong, the landlord’s lawyer, said that as a low-income housing provider, his client was most concerned that Lafayette’s guests respect the rules of the complex.

“There has to be a balance between enforcing the rules of a lease and also keeping people housed, giving them a second chance,” he said. “So my client doesn’t want to evict him but really wants him to know that he has to behave moving forward.”

After a tense few minutes, Lafayette learned the landlord had accepted the settlement terms. His shoulders sank with relief. He glanced down the hall at the apartment manager who he’d said made him feel unwelcome.

“I just want him to see that I have people behind me,” he said. “I’m not here by myself.”

Nancy Wiles’ story also had a happy ending: At a legal clinic at Pittsburg Superior Court she met Gough, the Centro Legal de la Raza attorney. Gough wrote a letter to Wiles’ landlord, who agreed to dismiss the eviction case against her.

It’s still unclear if the short-lived eviction will show up on Wiles’ credit report, her attorney said. Added William Goodwin, the friend who helped her, “It burns me a little, because Nancy was fortunate, but how many others are out there being victimized?”