Tenant right to counsel: A fast way to crush small landlords

 A major push is being made nationwide for a “right to counsel” for indigent tenants – in other words, free lawyers for poor tenants – along with a nationwide push for more taxpayer-funded “affordable housing.” These two government programs would crush many local small landlords and replace them with faraway corporate landlords, either for-profit large landlords or taxpayer-funded non-profit landlords. 

A tenant right to counsel during evictions sounds so fair. Don’t most landlords come to court with lawyers? That’s what is claimed, but it is wholly untrue. Most evictions – 95% of them, according to former Boston Housing Court chief administrator Harvey Chopp – are for nonpayment of rent. And of course, nonpayment happens far, far more often in lower-income neighborhoods. All those nonpaying tenants will qualify as “indigent” and get a free lawyer. 

Low rents mean no lawyers

But rents in lower-income neighborhoods are quite low, so low that small landlords cannot afford lawyers. According to U.S. Census data, in 2017 (just three years ago), half of all Boston rents were below $1,500 and 30% were below $1,000, all in lower-income neighborhoods – contrary to all the screaming about high rents in other neighborhoods. Those low rents are barely enough to maintain the older, well-worn housing in lower-income areas. 

Do small landlords with a few units at those low rents come to court with lawyers at $300 per hour? Seldom or never. The landlords who do come to court with lawyers to evict low-income tenants are public housing authorities and nonprofit tax-subsidized landlords – not private landlords – and these tax-funded corporate landlords actually do more evictions than private landlords do. Just look at the docket sheets posted every Thursday morning (when Massachusetts courts are in session for evictions) and see all the housing authorities and nonprofit names on the owner side. 

So, does a landlord without an attorney coming up against a tenant with an attorney still sound fair? Is it a “level playing field,” as tenant activists say they want? 

Free lawyers: the high-cost way to go      

Lawyers with salaries and benefits are high-cost personnel. Providing free attorneys at taxpayer expense for all “indigent” tenants facing eviction is the costliest way to go, by far, to help tenants in need – instead of giving direct help in the form of small grants and loans to keep tenants in their homes during a crisis. 

Moreover, free lawyers for tenants seldom, if ever, preserve tenancies. All an attorney can do for a nonpaying tenant is legal maneuvers that slow evictions, that give a nonpaying tenant more time to live rent-free and to make demands on their behalf for tens of thousands of dollars in “damage” claims against private small landlords. (The owners of lower-rent housing, by the way, are mostly small landlords.) Landlords usually wait through a couple of months of nonpayment before going to court. Going to court then means another two months or more of nonpayment, at best, and a free attorney for the tenant will add yet more months of nonpayment – plus tens of thousands of dollars in “damage” claims. 

But the final result for the tenant is still the same: eviction. No tenancies are preserved, and in the process, the owners, the other tenants, and the low-rent housing itself have been legally “robbed” of much needed income. 

Do nonpayment cases need an attorney? 

The issue, let’s remember, is nonpayment in 95% of eviction cases, which means that the question in court is quite simple: did the tenant pay the rent or not? The judge, who is usually a trained attorney, does not have a hard job. Does the tenant dispute the nonpayment? Does the tenant have receipts for payment? Does the landlord’s records or bank account show the payment? 

The point of going to court is to prevent so-called “self-help” evictions where landlords arbitrarily put all a tenant’s possessions at the curb and change the locks. SPOA does not support self-help evictions, and a mediator or judge can also determine how much time a tenant gets to move out. But determining nonpayment and move-out should not become a “federal” case (figuratively and literally), imposing substantially more costs on top of the unpaid rent. 

The legal name for eviction through the courts is “summary process.” “Summary” means “quick,” as in “summary judgment.” In other words, court-processed evictions are meant to be just but rapid because nonpayment while a person lives in someone else’s property is – obviously – a very serious matter needing rapid resolution. Both landlord and tenant get to state their case to the judge, without attorneys. Free attorneys for tenants only guarantee that the process will be as slow as possible. 

Who wins? Legal services lawyers  

These free lawyers will all be “legal services lawyers,” a branch of government based on over $700 million in federal and state tax dollars and in large sums of interest that is, by law, skimmed off of lawyers’ escrow accounts, money that lawyers hold until a case is resolved. The largest chunk of legal services cases are landlord-tenant cases, with the government putting all its resources into one side. (Another big chunk is divorce and child-support cases, with the government aiding wives/mothers against unaided husbands/fathers – think about that.) 

A tenant right to counsel will mushroom the legal services lobby. In Massachusetts, a legal right to counsel would require almost 13 times the number of legal services lawyers that currently handle the landlord-tenant caseload funded through the Massachusetts Legal Assistance Corporation. (See calculation below.) The cost of attorney’s salaries with benefits, office space, equipment, support staff will be huge, to which must be added the cost of more judges, courtroom space, and other court personnel to handle so many lengthened eviction cases. Cost-benefit analysis? None. 

Who loses? Small landlords and their other good-paying tenants  

When a nonpaying tenant with a free attorney stays longer and longer and demands huge payoffs for alleged infractions of the landlord, who pays for it? The other good-paying tenants, who will receive both increased rents and reduced services to cover the magnified losses. The other cost: bankrupt owners who abandon their properties, which are often lost forever, and all their tenants, who get displaced by abandoned housing and have fewer housing options available to them. 

In better-off neighborhoods, the impact of free lawyers for tenants forces owners to hire a high-cost attorney to preserve their small business, with the same consequences, rents pushed up and services reduced – which only increases the demand for rent control, the ultimate weapon that puts power in the hands of tenant activists and legal services lawyers. 

Good-bye to small landlords, welcome corporate landlords   

For the small landlord, then, usually a husband and wife operating out of their homes, they will all too often be put out of business when they face an attorney giving loads of free rent to one tenant. Often, the owners just give up and walk away. Who buys their cash-starved housing? Corporate investors who rehab the housing into high-rent units and “flip” them to make a profit. Or they are bought by nonprofit “affordable housing” organizations funded by tax dollars who rehab it and subsidize the rent for 30 years, at an exorbitant cost of $1 million per unit.

So, the idea of free lawyers for tenants goes hand in hand with taxpayer-funded subsidized housing, putting small local landlords out of business and replacing them with corporate landlords or government-controlled nonprofit landlords. Either way, the small local landlords are gone and replaced with landlords operating as impersonal bureaucracies. It achieves the tenant activist goal of “socially owned housing,” piece by piece, parcel by parcel, as one small landlord after another goes out of business. 

But all these subsidized tenants are government dependents, often trapped in their housing for fear of losing such a large tax-funded benefit. A study of New York City tenants found that 60% of non-subsidized tenants moved every year to a new job or home while only 20% of subsidized tenants moved. And subsidized tenants also become a political constituency created by government benefits to give support and votes for yet more government benefits. Think about that.  

Yes, let’s help the poor, but in ways that work   

We fully agree that many lower-income households are having a tough time. Even with low rents, they often spend more than half their meager incomes on rent alone and go without other important needs. But lawyers, a high-cost luxury that most Americans avoid like the devil, are no solution. 

For tenant activists and legal services lawyers, however, the only solutions are laws and tax dollars thrown at the problems – and they have failed miserably over the past half-century. The problem of poverty is, in large part, family structure, single-parent homes with no income earners. Poor education, few job-training options, and frequent incarceration are also problems. 

Even subsidies, like “Section 8” rental vouchers that kick in for all the rent over 30% of household income, have awful consequences. Two parents in the home mean more household income and less subsidy. So, the men come in, make babies, and leave, perpetuating a failed family structure. 

We need to think much more clearly about poverty and not fall prey to simple ideas. 

CALCULATION: 95% of evictions are for non-payment of rent, according to former Boston Housing Court administrator Harvey Chopp (personal communication). So, almost all nonpaying tenants would qualify as indigent and for free lawyers. Massachusetts District and Housing Courts processed 38,984 summary process (eviction) cases in 2019,* which comes to about 37,000 non-payment cases. MLAC funded only 2,895 “private landlord-tenant” cases in 2019, not counting discrimination or unsafe condition cases.** Do the math: MLAC would need 12.7 times more landlord-tenant lawyers to meet a legal right to counsel. 



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