Unlike criminal proceedings, there are no laws in most places guaranteeing an attorney in landlord-tenant disputes, and while landlords can often afford one, tenants often can't.
In Jersey City, New Jersey, though, some residents will now have access to legal representation in eviction cases thanks to two bills passed in June, which have put the city at the forefront of a wave of right-to-counsel pushes across the country.
Funded by a 1.5% tax on all new residential development in the city, the bills will raise $20 million per year, James Solomon, a city councilmember and one of the bills' original sponsors, said. The new counsel office will receive $4 million of that and will provide about 1,500 tenants a year with representation when the laws are fully implemented in about three years. The other $16 million will go to the city's affordable housing trust fund.
The end result, Solomon said, will be thousands of Jersey City tenants getting to stay in their homes who otherwise would be forced to leave.
"We see people getting pushed out of the city, and our No. 1 job is to help and support the residents of our city," Solomon said.
Before 2017, nowhere in the country offered a right to counsel to tenants facing eviction. Since then, 17 cities, four states and one county have enacted some kind of right to counsel in eviction cases, including nearby New York City, Newark and Philadelphia, as well as Washington state, Maryland, Connecticut, Minnesota and Westchester County, in New York. Jersey City is not even the most recent – St. Louis passed its own legislation earlier in July.
The surge has been "nothing short of staggering," said John Pollock, the coordinator of the National Coalition for a Civil Right to Counsel. The organization that has worked with the campaigns behind many of those right to counsel laws, including Jersey City's.
In Jersey City, tenants rights advocates were able to craft legislation that stands apart from what other cities and states have done both in terms of its scope and in the way it's funded.
In addition to being the driving force behind canvassing and phone-banking to build support for the legislation, Right To Counsel JC, a campaign mounted by the local Democratic Socialists of America chapter, has among its members attorneys who drafted the bills that ultimately became law.
Sarah Levine, a labor attorney, worked on the bills in her private capacity. She told Law360 Pulse that she and other attorneys considered examples from numerous jurisdictions with similar laws, like Boulder, Colorado, only to realize that they were preempted by New Jersey law.
The idea for the development fee came from multiple sources, she said. One of them was an employee of the nonprofit Fair Share Housing Center, who tipped her off that development fees were a potential untapped source of funding permitted by New Jersey law.
"Once we ran that idea down, read the state statute, it really did seem like that was a great way to tap into a previously unused local funding source that was specifically authorized by state statute, so we weren't going to run into preemption issues," Levine said.
Jersey City's laws are more progressive than other cities', Levine said, because they extend the right to counsel to affirmative proceedings in which the tenant is a plaintiff, rather than only eviction cases in which the landlord is the plaintiff and the tenant the defendant.
Administrative hearings before the Jersey City Housing Authority, hearings related to violations of the New Jersey Law Against Discrimination and hearings related to violations of the New Jersey Housing Code are all covered by the bill. Research suggests that the majority of evictions happen through avenues like these, Levine said, so it was important to include them.
"My understanding is that this ordinance is totally novel," Levine said, "not just in the scope of the covered proceedings but in the funding mechanism."
Not everyone in Jersey City supported the legislation, and some questioned whether the new right to counsel office was an efficient use of funds.
Gordon Gemma, the general counsel and chief investment officer for Panepinto Properties Inc. and chair of the policy committee for the Jersey City Apartment Owners Association, said that since most evictions are for nonpayment of rent, the money being used to fund counsel for tenants could be more effectively used for other kinds of rental assistance. In nonpayment cases, Gemma argued, an attorney can only delay, not prevent, an eviction.
"If the sole defense is, 'I can't pay the rent,' what's the lawyer going to do?" Gemma said.
But Lissette Diaz, the legal director of the Waterfront Project, a legal services nonprofit based in Jersey City, maintained that even in cases of nonpayment of rent, lawyers can help tenants in ways they may not have known were possible.
For instance, a landlord may choose to stop accepting a tenant's housing voucher as payment and label the case a nonpayment case, even though the tenant actually is able to pay and the landlord's actions constitute unlawful source of income discrimination, Diaz said.
Waterfront Project attorneys also try to attend pre-trial case management conferences between tenants and their landlords to steer tenants away from agreeing to impossible repayment terms.
The right to counsel laws will meet an important need in Jersey City and benefit the city as a whole, according to Diaz. "Considering the amount of renters in Jersey City, it really is something that becomes a necessity to avoid a homelessness and an eviction crisis," she said.
Diaz also stressed that in most cases, tenants on their own simply don't realize that they have any legal options at all. The right to counsel laws are crucial not because they change the underlying landlord-tenant law, but because they correct that imbalance, she said.
"What right to counsel does," Diaz said, "is level the playing field."
--Editing by Gemma Horowitz.
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