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Rochester tips the scales of justice for tenants . . . temporarily 

Fifty-seven years ago, the Supreme Court unanimously established that poor criminal defendants had a right to an attorney under the Sixth Amendment of the Constitution. The reasoning was straightforward: they needed one to have a fair shot at defending themselves.

Yet poor people facing eviction defend themselves every day in Rochester civil court, where the stakes of losing the roof over their head are arguably as dire as being incarcerated.

To watch an eviction proceeding unfold is to witness a stark imbalance of power. On one side are the tenants — frequently overwhelmed men and women clutching a handful of papers on which their hopes to retain their home hinge. On the other side are lawyers for landlords — dressed in suits and in the courthouse so often they’re on a first name basis with the bailiffs.

Which side will likely win is a forgone conclusion.

“Someone who does not have an attorney in a system that is built for attorneys to be adversaries is at a massive disadvantage,” said Tina Foster, executive director of Volunteer Legal Services Project (VLSP), a pro bono legal group. “You won’t have equal access to justice.”

With eviction proceedings slated to begin in October after being put on hold for six months of the pandemic, Mayor Lovely Warren and the City Council have moved to level the scales of justice with a temporary infusion of funding for legal services for tenants.

The money, some $460,000 in federal coronavirus relief funds, is meant to guarantee a free lawyer for tenants facing eviction who can’t afford one. (And if someone is facing eviction, they can’t afford one.)

The so-called right-to-counsel pilot program is a victory for tenants and their advocates who have championed such an initiative for years. But what happens when the money runs out, as it is expected to by June, if not sooner?

City officials say they will re-evaluate the program then. Advocates for the poor and affordable housing see no need to wait — and the data backs them up.

In recent years, wages have stagnated while housing costs have soared, and Rochester has averaged roughly 7,300 eviction filings annually, according to the New York State Office of Court Administration.

That figure is expected to balloon as landlords seek redress for their losses during the pandemic when the state’s moratorium on filing eviction proceedings lifts in October.

“What I think is important to remember is the courts were full before the crisis even happened,” said Mark Muoio, housing program director for the Legal Aid Society, a partner of the VLSP. 
click to enlarge Mark Muoio serves as the housing program director for the Legal Aid Society of Rochester - PHOTO BY JACOB WALSH
  • PHOTO BY JACOB WALSH
  • Mark Muoio serves as the housing program director for the Legal Aid Society of Rochester

NINE-TO-ONE RATIO FAVORS LANDLORDS
In many housing courts around the country, 90 percent of landlords are represented by attorneys while 90 percent of tenants are not. The VLSP estimates a similar imbalance in Rochester. Those numbers are based in part from a right-to-counsel initiative launched in Irondequoit Town Court a few years ago.

A 2018 study from the national Volunteer Lawyers Network found that tenants fighting eviction with a lawyer kept their homes 96 percent of the time, compared to 62 percent of those without one.

Guaranteeing a right to legal representation in civil matters has been established in countries around the world and some municipal housing courts in progressive American cities.

New York City became the first city in the nation to legislate a right to counsel for tenants in 2017 after years of experimenting with a hodgepodge of legal services programs that aimed to protect renters and preserve the city’s stock of affordable housing.

There, the law provided free lawyers for tenants in specific ZIP codes whose household incomes were below $50,000 for a family of four. In one year, tenants facing eviction who could take advantage of the free counsel were nearly four times likelier to keep their housing than those who could not, according to data culled by the New York City Department of Investigation.

Barbara Rivera, of the Rochester City-Wide Tenant Union, expects the new program here to have the same effect. The initiative has been a wish list item for the Tenant Union for years. 
click to enlarge Barbara Rivera of the Rochester City-Wide Tenant Union - PHOTO BY GINO FANELLI
  • PHOTO BY GINO FANELLI
  • Barbara Rivera of the Rochester City-Wide Tenant Union

“It’s going to level out the playing field a little bit for tenants, just to make it fair,” Rivera said. “If a landlord is being represented by a lawyer, why shouldn’t a tenant?
Just so they know what to do to move forward and what exactly is happening.”

Advocates look at the benefits of a permanent right-to-counsel program for poor renters mainly through the prism of the health and welfare of tenants and their families. Research affirms that people who endure an eviction experience higher levels of depression. Eviction has been found to be a risk factor in suicide and, for children, academic failure.

But there are monetary benefits, too.

A pilot right-to-counsel program that ran in The Bronx from 2005 to 2008 and helped more than 1,100 families avoid eviction, for example, cost New York City around $450,000 but reportedly saved the city more than $700,000 in emergency shelter costs.

A BURDEN OF PROOF
The state Tenant Safe Harbor Act, signed into law in June by Gov. Andrew Cuomo to protect tenants who experienced financial hardship during the pandemic from eviction, is still in effect. But it is not a get-out-of-jail-free card, housing lawyers contend.

While the law prohibits a landlord from evicting a tenant who has not paid rent for months as a result of the pandemic, it does not bar a landlord from initiating an eviction proceeding as a way to secure a judgment against the overdue back rent.

And in each case, tenants will have to prove that the pandemic prevented them from making their rent.

“So I could say (a tenant) lost their job from the pandemic, and the judge could say, ‘Yeah, but they got their extra $600 a week for 10 weeks and they still didn’t pay, and they got a TV or a new car,’” Muoio said. “That’s a sensible argument for some people, and I’d have to prove (hardship) in some other way.”

In Monroe County, a new court, dubbed the Special COVID Intervention Part (SCIP), has been introduced just to deal with pandemic-related cases.

Following the launch of the right-to-counsel initiative in August, state Supreme Court Justice Craig Doran, the administrative judge for the Rochester region, participated in a ZOOM call on the intricacies of the program.

“There is normally a burden of proof on the person who brings an action, in this instance the landlord or the petitioner,” Doran said. “There’s a little bit of an imposition on the responsibility of the tenant...there’s some indication that there has to be a demonstration of hardship due to COVID.”

It is, ultimately, up to the judge what the case will look like. In some cases, Doran said, a judge may require landlords to prove through records the tenant has not been impacted. The law says a court must consider income before and during COVID, the tenant’s assets, and what benefits they were eligible to receive.

“So let’s give a scenario, say your aunt or mom got sick and you had to move to Indianapolis to take care of them,” Muoio said. “Were you financially impacted by COVID under this statute?”

PANDEMIC PROMPTS PUSH FOR CHANGE

Elijah de la Campa, a research associate at the Bloomberg Harvard City Leadership Initiative, has been surveying landlords in Albany and Rochester to determine what effect the pandemic has had on rent payments.

In June alone, de la Campa found, the 285 landlords surveyed were between $2.7 and $4.6 million behind in rent payments. Whereas 80 percent of properties had received full rent in June 2019, it was about 60 percent this year. That drop in full rent payment was seen in both high income and low income neighborhoods.
click to enlarge backinprint.gif

“These numbers are big, any way you want to slice it,” de la Campa said.

De la Campa said that trend is likely to translate to more landlords seeking to settle issues in the courts as the moratorium on eviction filings sunsets.

“It’s reasonable to expect, given these numbers, that landlords will be looking to seek lost rent through the legal system when they are able to,” de la Campa said.

While these numbers are new, the problem is not.

Non-payment has always been the largest source of eviction filings in Rochester, accounting for 93 percent of all filings. According to the OCA, just shy of half of eviction filings are for non-payment of $1,200 or less, and the majority were for two months or less of missed rent.

To Foster, the data reinforces that this is a longstanding societal issue, not just a pandemic-spurred spike.

“This has been the goal of tenant rights activists for a long time, to enshrine that Right to Counsel in law,” Foster said. “We hope this is the first step to getting there.”

Gino Fanelli is a CITY staff writer. He can be reached at (585) 775-9692 or gino@rochester-citynews.com.

On Sept. 28, Gov. Andrew Cuomo extended protections of the Tenant Safe Harbor Act until January. It is unclear what impact this would have on court proceedings.

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