Tenant “right to counsel” policies guarantee legal representation to tenants facing eviction. San Francisco’s policy, established by voters in 2018 and the first of its kind, is proving to be a humane and cost-effective way to address homelessness.

An apartment building in San Francisco, California, February 15, 2022. (David Paul Morris / Bloomberg via Getty Images)

After the onset of COVID-19, a variety of pandemic-era eviction moratoria helped keep millions of tenants housed. These moratoria have since expired, and eviction filings have reached or exceeded prepandemic levels in most cities across the United States. For the vast majority of tenants, the eviction process is disruptive, confusing, traumatic, and solitary. Nationally, it is estimated that approximately 4 percent of tenants have legal representation in eviction cases, compared to 83 percent of landlords. Without legal representation, tenants face very steep odds, often finding themselves on a fast track to eviction.

To address this power imbalance, a growing number of cities and states, beginning with New York City in 2017, have passed tenant “right to counsel” legislation. As recently released data on San Francisco’s Tenant Right to Counsel (TRC) shows, these programs can be enormously effective. San Francisco’s TRC, which guarantees tenants access to city-funded legal representation within thirty days of receiving an eviction notice, has helped more than 5,400 tenants — a staggering 92 percent of tenants who have used the program — avoid homelessness since it took effect in July 2019. While the program offers universal coverage, 83 percent of users in the fiscal year 2022–2023 qualified as extremely low-income, and an additional 12 percent were low-income.

Prior to the passage of TRC, San Francisco’s legal representation rate in eviction proceedings resembled national figures. Ora Prochovnick, director of litigation and policy at the Eviction Defense Collaborative, the lead service provider for TRC, explained to Jacobin:

The inherent power imbalance is obvious from those numbers. By having a tenant right to counsel, we somewhat equalize the system. I use the word ‘somewhat’ because there’s still significant power imbalances built into the property laws and the inequities of our economic systems.

San Francisco supervisor Dean Preston wrote the TRC ballot measure, Proposition F, in 2018 before running for supervisor. The measure passed with nearly 56 percent of the vote and was billed as a rebalancing intervention into the eviction process, a way to preserve affordable housing, and a strategy for homelessness prevention. Preston told Jacobin:

We know that over 70 percent of people living on the streets of San Francisco were previously housed in San Francisco. Investing in prevention of homelessness is way more cost-effective and humane than waiting for people to become homeless and then trying to figure out how to get folks into housing. And the more effective we are in preventing evictions, the fewer people will end up homeless on the streets of San Francisco.

When tenants receive an eviction notice, the notice informs them about TRC. Over the fiscal year 2022–2023 — the only complete fiscal year since COVID-19 — 1,800 tenants used the program, with nonpayment of rent being the alleged cause of eviction in 72 percent of cases. Of those 1,800 tenants, 84 percent received full-scope representation, while the remaining 16 percent received limited-scope representation from the Eviction Defense Collaborative or one of the seven other agencies that facilitate TRC. The program uses a vulnerability scoring system to determine which tenants are most at risk and thus most in need of full-scope representation. Of those who received limited-scope representation, 91 percent stayed in their home or moved out with a favorable settlement, compared to 93 percent of those with full-scope representation.

Not only is the program remarkably effective, it also makes financial sense. Prochovnick told Jacobin:

Our cost per case averages out to about $6,300. Given that low cost and our high success rate, it’s really a no-brainer for the San Francisco government, and, really, any government across the country to explore right to counsel. Because the most effective way to prevent homelessness is, if somebody already has a home, keep them in it. The cost of rehousing somebody is astronomical — the annual cost for a shelter bed in San Francisco is about $72,000. The trauma of being displaced from your home is not measured in dollars and cents, but if you only look at the dollars and cents, it’s still wiser to have programs such as TRC.

The program’s effectiveness is reflected in data from other cities that have passed versions of right to counsel. A 2020 study from New York City, the first city to provide the right to counsel, showed that evictions dropped by 41 percent and default judgments by 34 percent, while 86 percent of tenants who received representation remained in their homes. In Cleveland, which in 2019 passed a right to counsel for tenants with children who are at or below 100 percent of the federal poverty level, 81 percent of tenants avoided eviction or an “involuntary move” in 2023, while 97 percent secured monetary relief. And a 2020 report concluded that if Baltimore invested $5.7 million in a TRC program — which it did later that year — the city and state would yield a combined $36 million in “benefits or costs avoided to the city and state,” echoing similar findings from New York and Philadelphia.

Considering the postpandemic eviction crisis and the nation’s ever-worsening homelessness crisis, tenant right to counsel has proven to be a cost-effective and, more importantly, humane intervention that can help mediate the severe power imbalance between tenant and landlord in the for-profit housing system, while serving as an efficient homelessness prevention tool.

Growing Pains and Issues of Reach

Delivering a universal tenant right to counsel has been challenging. Prochovnick and Preston both point out that they want to eliminate the need for vulnerability scoring and ensure that every tenant can access full-scope representation — as opposed to limited-scope — through the program. While nearly all tenants across both groups had successful outcomes, 63 percent of tenants who received full-scope representation were able to remain in their unit compared to 45 percent of those with limited scope. (A Massachusetts pilot program found similar results.)

Like many parts of the country, however, San Francisco is experiencing a shortage of eviction defense attorneys. Currently, the TRC program has eight vacancies, and filling those positions would go a long way toward meeting present demand. On the other hand, San Francisco’s eviction filing rates have gone up since the program took effect just before the pandemic, indicating a growing need for TRC.

Moreover, many tenants never attempt to use the program and often end up with a default judgment, which is when a landlord files an eviction lawsuit against a tenant who fails to file an answer within a specific time period or appear at a court date. The tenant loses by default without so much as a hearing. Prochovnick estimates around six hundred default judgments this year (which is, nevertheless, fewer than the year prior). The data shows that certain zip codes exhibit higher default judgment rates, and TRC agencies are hoping that targeted outreach like door-knocking in specific areas can help reduce defaults.

Still, the high number of defaults also implies the need for more legal resources. San Francisco mayor London Breed, however, is currently developing a proposal for budgetary cuts across departments to address a projected municipal budget deficit, and TRC might be caught in the crosshairs. Preston and Prochovnick both argue that the primary goal presently is to maintain the $17.7 million TRC budget and prevent any cuts to the program, although an eventual budget expansion is likely needed to meet future demand.

Meanwhile, to address the shortage of eviction defense attorneys, the eight agencies that deliver TRC have been collaborating to build what they call a “legal aid housing attorney pipeline.” After the program was passed and the agencies began expanding their staff, the pool of experienced eviction defense attorneys in the area was quickly exhausted, which led the agencies to focus on attracting recent law school graduates across the Bay Area. Using TRC funds, they’ve created a ten-month postgraduate fellowship program. And as a recruitment and retention tool, they also offer a three-month stipend to study for the California Bar Exam before the fellowship begins in September. Additionally, the TRC agencies use law clerks while they are still in law school, hoping to attract them to the fellowship program and to public interest law more broadly.

The fellowship starts with a one-week “UD School” — unlawful detainer school — that used to be carried out separately by each agency but is now conducted collectively across the participating partners. At UD School, the cohort of fifteen to twenty fellows learns about tenant-landlord law, clerical and practical processes, intersectionality issues in housing law, and power dynamics in the system. Afterward, fellows report to their separate agencies and, following the ten-month fellowship, provided they pass the Bar Exam, the agencies can offer them a position. If offered a position, fellows are obligated to stay for another fourteen months, making it a two-year commitment, but only a ten-month obligation for the agencies. At the Eviction Defense Collaborative, Prochovnick says:

We hope to hire, usually, about two or three. Sometimes we keep all five, sometimes just one. And the ones that we don’t retain, we place. So we’re basically peppering the world with graduates who are housing justice warriors and go to other agencies.

Alongside TRC, San Francisco has passed legislation to make it harder for landlords to evict tenants and created other eviction prevention programs. For instance, Preston authored Proposition I, which passed in November 2020. It taxes transfers of property over $10 million and uses the revenue for affordable housing and rent relief, helping thousands of tenants avoid eviction and rent debt. “It’s not a system-change outcome,” says Preston. “But it stabilizes people’s homes in a system that otherwise evicts people, and it has a massive impact on keeping low-income people and working-class people in an expensive city like San Francisco.”

A 2015 Baltimore survey of court respondents found that 80 percent of tenants had potential defenses to raise in eviction court, yet only 8 percent asserted it successfully without representation. In California, legal mutual aid tools like the Tenant Power Toolkit can help tenants avoid default judgments and have the opportunity to raise a defense in court or negotiate a favorable outcome, while organizing with their neighbors and the wider tenant movement can help transform evictions and rent debt into leverage against landlords. A tenant right to counsel, meanwhile, has proven to be an effective government intervention for eviction and homelessness prevention and for somewhat equalizing the system. As Preston says:

You’re still going to have people who are evicted under unfair laws, but you won’t have, as often, the situation where landlords just assume that they can do whatever they want because the tenant is not going to be represented.

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