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Speaker 1: Eviction is, its violence and it's mean, and it undermines the dignity that every human being should be affording.

Melissa Harris-Perry: In March of 2020 Congress passed the Cares Act, including a federal eviction moratorium. The goal was of course, to ward off potential evictions, as tens of millions of Americans lost their jobs in the midst of a deadly contagious virus. The federal moratorium lapsed just a few months later in July of 2020, but the CDC and Congress then issued a series of extensions. They were policies that were effectively an eviction moratorium, and they helped to protect tenants. Then in August of 2021, the Supreme Court struck those measures down. Undoubtedly, those policies truly helped, but even with those protections in place, according to the National Equity Atlas, 17% of US renters were behind on rent by the time federal protections ended. I'm Melissa Harris-Perry and we begin today's Takeaway by hearing from you about the housing challenges you faced during the pandemic.

Scott: This is Scott from Grand Junction Colorado, back in the middle of the pandemic I was living in Denver and when the pandemic hit, I lost my job and was completely unable to pay for rent, and eventually got evicted. I had over $5,000 in back rent owed and due to the pandemic relief funds I was able to pay a lot of that off, but I do still owe $2,000.

Tina: Hi, my name's Tina from Miami, Florida during the pandemic, I was temporarily placed out of work and throughout that time, my husband and I applied for the emergency rental assistance program through our county. Unfortunately, while those applications were going through, our landlords still tried to suit for eviction and it wasn't until there was an eviction notice on our door that anyone would listen to us.

Melissa Harris-Perry: Well, individual states and cities also issued eviction protections of their own many of which extended into this year. New York's for example, ended in mid-January and in California, some eligible tenants are still protected from eviction through June, but with eviction moratoriums ending and protections for vulnerable tenants withering away, legal advocates and tenant organizers are seeing housing courts filling up again.

Carolyn Headlam: There is a tsunami of evictions, post moratorium.

Melissa Harris-Perry: Carolyn Headlam is an Organizer with the Ithaca Tenants Union in upstate New York.

Carolyn Headlam: 15 new cases. Last week, there are also 15 new cases next week, which is pretty wild for Ithaca in the past. We've maybe had a hundred eviction cases a year and things have ramped up. Things have ramped up considerably.

Melissa Harris-Perry: Now landlord organizations have disputed claims of a tsunami, but according to data from the eviction lab at Princeton University, which tracks evictions in six states and 31 cities. Eviction rates had returned to almost pre pandemic levels by March. In New York City, there are stronger protection for tenants facing evictions than in the rest of New York state. Eviction filings have been rising steadily since January.

Lauren Springer: When the eviction moratorium were put into place. In response to COVID, there was a sense of safety.

Melissa Harris-Perry: Lauren Springer is a Tenant Rights Advocate in New York city with Catholic Migration Services and a member of the steering committee of the right to counsel New York city coalition.

Lauren Springer: There was a sense of people being able to stay in their homes. What's happened since that's lifted is now you have a flood of eviction filings being submitted in court.

Melissa Harris-Perry: Now in New York City tenants who are facing eviction have what is called a right to counsel. Thanks to legislation that was passed by the city council back in 2017, it guarantees those facing eviction the right to legal representation in housing court. City data showed that the program is effective, 84% of tenants represented by right to counsel Lawyers were able to stay in their homes.

Lauren Springer: Eviction is a traumatic experience that basically upends everything in a person's life.

Melissa Harris-Perry: Springer says the law protects particularly vulnerable communities.

Lauren Springer: In their security, their safety, all of that, unfortunately, prior to our getting this law passed, and one of the reasons why we wanted it passed was because we see evictions the coalition as a very violent process, it was a process that basically impacted communities of color more, especially women of color and everything else like that.

Melissa Harris-Perry: Springer also says that since eviction moratoriums have been lifted, tenants are not always receiving the right to counsel due to the sheer volume of cases and not enough right to counsel attorneys to go around.

Lauren Springer: The caseloads or the court caseloads are actually a function of the fact that they had so many cases, like 200,000 cases, backlogged from the last two or three years with COVID and the eviction moratorium. Then now about 7,000 cases per month are being filed in court. The backlogged cases, plus new case filings that are being moved forward without people having legal representation. What the courts really need to do is slow down the cases and basically not prioritizing clearing court dockets over effectuating tenants' right to counsel.

Melissa Harris-Perry: Meanwhile, the right to counsel does not exist at all in most places, according to the national coalition for a civil right to counsel, just 3% of tenants facing eviction have legal representation compared to 81% of landlords, Carolyn Headlam, the Organizer with the Ithaca Tenant Union in upstate New York is pushing for legislation, which would guarantee the right to counsel statewide.

Carolyn: Well, this is really important legislation. First and foremost, it affirms that there is a fundamental human right to adequate housing, or in other words, every human being deserves a home. Part of defending that right is having adequate representation in any proceeding that could result in a tenant losing their home. Every tenant is a human being. Every human being deserves a home.

Melissa Harris-Perry: I spoke with Ora Prochovnick Director of Litigation and Policy at the Eviction Defense Collaborative in San Francisco. With Marika Diaz, who's Managing Director at the safety net project of the urban justice center in New York City.

Marika Diaz: At least in New York City, the right to counsel was something that tenants saw as valuable for themselves. A tenant movement formed the right to counsel coalition that was a very broad-based movement, encompassing tenants across all five boroughs of New York City and all housing, and also encompass lots and lots of different advocacy groups everything from unions to seniors groups to a disability, advocacy groups. I think everyone recognized that when people are facing eviction, it is really critical that they have access to legal representation. What we see in housing court is that the very vast majority of landlords because of the prevalence of the corporate landlord do have lawyers representing them.

It is a really significant power imbalance when tenants do not and so the right to counsel was an intervention that tenants fought for to really rectify that power imbalance that had predominated for so many years and led to a lot of displacement and certainly played a critical role in gentrification.

Melissa Harris-Perry: What does a right to counsel mean though? Is it like in a criminal case where if you cannot afford counsel, that counsel will be provided for you?

Marika Diaz: That's exactly right. It is very similar to the right to counsel in say the criminal context or in some certain family court cases where the thing that is at stake there in that court proceeding is recognized to be of such significance that it would not be due process for that person to proceed without legal representation. What the right to counsel means is that if a tenant is unable to pay for the council for themselves when they're facing eviction, in this case, the City of New York will provide them with that representation with no cost to them as the tenant.

Melissa Harris-Perry: Ora I want to come to you on this and help us to understand how right to council was established in San Francisco and how it was operating prior to the pandemic.

Ora Prochovnick: Well, I'll echo many of the things that Marika mentioned in terms of why this is a crucial need and therefore was created in our city, right to counsel, came to be through the process of the initiative. There was a proposition on the ballot and the voters of San Francisco by a significant majority approved it. The reason for that was very similar to what Marika described which is we're talking about a basic human necessity. There's a very short list of what we as human beings need to survive. On that list I would put food, clothing and shelter and I would maybe add healthcare to the list.

In the context of housing when you take this basic human necessity and you provide it with a profit motive and try to make it comply with the market system, we're creating great risks for some of the folks involved. Displacement often means relocation to the streets and an increase in the homeless population which is a distributing to everybody in the community, in particular the family that was disrupted in that way.

Recognizing that need, the voters of San Francisco did create this tenant right to counsel through a voter pass initiative back in 2018. Then San Francisco we do not have an income eligibility screen. The principle of our right to counsel program is that any tenant regardless of socioeconomic status who receives a notice to vacate, that person has a right to representation by our right to counsel program.

Melissa Harris-Perry: Who are some of the groups of tenants who have benefited from and made use of this right to counsel.

Marika Diaz: In the New York City context, tenants all across the city have access to right to counsel. We initially phased it in by zip code because with the volume of cases in New York City we could not go from a place of very minimal legal services for tenants to a full ramp up of right to counsel from one day to the next. We rolled it out by zip code. However, during the pandemic in recognition of the economic devastation brought by COVID-19, tenants fought for and were successful in getting a law passed to arrive at full implementation across the whole city.

The tenants would have that protection given the potential addiction crisis triggered by COVID-19. Similarly, tenants in all kinds of housing whether that's big buildings or small private homes, also tenants who live in public housing have access to the right to counsel. It's really tenants in a range of different situations.

Melissa Harris-Perry: You brought up for us the pandemic. Ora, are there still eviction protections in place for tenants in San Francisco?

Aura: There are very few protections remaining due to the COVID pandemic. Initially in March of 2020 when our nation was first hit with this unexpected and very serious problem, there were a number of protections for tenants that were put in place both at the federal, state and local level. The fact that all those protections were present was great. It was also somewhat confusing because there was a whole mishmash depending on where a person lived. Gradually those became more uniform over time but also have been reduced.

Here in San Francisco, almost all of the moratorium have lifted with the exception of one very small one that remains tied to an application for emergency rental assistance protection. What we refer to as ERAP. I would also add that even when the moratoriums were in place, evictions were going forward. Even when in theory no evictions were supposed to be happening. Our office was defending tenants on a daily basis throughout the COVID pandemic.

Melissa Harris-Perry: Marika I know at this point there are no protections left in New York City. Is is that right?

Marika Diaz: Yes, there's very minimal protections left for tenants. There is the tenant Safe Harbor Act which is the legislation that was passed during the pandemic to make sure that arrears that were accrued by tenants during the pandemic, could not be subject to a possessory judgment, meaning that somebody could not be evicted for those arrears. That affords tenants some modicum of protection. However, what we are seeing is that many many tenants have arrears from during the pandemic but also have arrears that are continuing to accumulate because the economic impacts of COVID have gone on and continue.

That is not stopping eviction cases unfortunately. Then like in San Francisco and in other places, we also have an emergency rental assistance program EAP that when tenants apply to EAP or have a pending EAP application, it prevents certain kinds of evictions and certain kinds of eviction cases from being brought or from moving forward. That is what is available to tenants right now in New York City. Unfortunately what we are seeing is still a very large number of eviction cases moving forward because those protections are not comprehensive by any means.

Melissa Harris-Perry: We're going to pause for just a moment. More on legal representation for tenants facing eviction. Just ahead right here on The Takeaway. We've been looking at the increase in eviction filings reported in several cities and states since the end of certain pandemic era eviction protections. In New York City in San Francisco, tenants have a legally guaranteed right to representation in eviction proceedings, but legal service providers say they're struggling to fully meet the needs of every tenant due to the increase in eviction cases.

I've been speaking with Marika Diaz from the Safety Net Project of the Urban Justice center in New York City. Ora Prochovnick from the Eviction Defense Collaborative in San Francisco. Marika, let me play the other side of this for a moment. Let's say there's a landlord who says look, "It's been more than two years. I haven't received enough income from this tenant in that time, so if they don't go then this is putting a real burden on my well-being. How do you respond to a landlord who has that kind of concern?"

Ora Prochovnick: Firstly the landlord lobby themselves recently admitted that landlords in New York City are warehousing 20,000 apartments for which they are not receiving any rental income because they hope to receive greater return on their investments by renting out those apartments later on, when they hope to change the laws so that they can attract higher rents. I think it is misleading when the big corporate landlords use very small landlords as cover to claim that they are in some situation of hardship.

In addition to that, there has also been mortgage relief and protections available. I think the final point I would make is that when a tenant is facing eviction, the consequences that they are facing have a loss of the roof over their head. They're facing the possibility of homelessness and everything that that entails. Whether that's impacts on health, education, community and family ties, the ability to keep a job all of those things. The stakes are very very high.

I do not think that it would make sense to be forcing cases very quickly through the court system as we see happening now, with tenants not having the right to counsel and that leading to the consequence of many many more people becoming homeless just to satisfy landlord's needs to continually make profits on their investments. Really that I think is the response that needs to be maintained both by tenants and us as their advocates but also by elected officials who are in the roles they're in to ensure the greater well-being of our society which a mass eviction crisis is not going to achieve.

Melissa Harris-Perry: Ora, help me to understand, if someone was evicted and did not have counsel, do they have the ability to revisit that eviction and get some level of compensation?

Ora Prochovnick: Unfortunately once an eviction case moves all the way to judgment, I won't say impossible but extremely difficult and unlikely to unravel that at that point which is why it is so crucial to commence the right to counsel at the earliest opportunity. We have found that the earlier on in the case that the attorney can be involved, the more likely there'll be a success from all perspectives. The fact this is that our right to counsel officially kicks in at the notice stage which is prior to the actual court litigation.

If the parties could resolve the problem and save the time and expense and severe stress of a court eviction process that's in everybody's interest to do. In the absence of that right to counsel if the case actually already proceeds to trial a judgment for possession is issued and the Sheriff's eviction is ready to go forward. Unless we can find a very strong argument to obtain relief of the tenant based on excusable neglect or improper service. We can't unravel that at that point and that tenant will be displaced.

Melissa Harris-Perry: Ora, what are some of the changes that you would like to see either at the city or state level to further protect the rights of residents.

Ora Prochovnick: I can think of many changes I would like to see, at the head of the list is something that would address some of the issues that Marika spoke about which are duplicated in our environment in San Francisco. We also have a very high speculative vacancy rate. Estimates from studies are that over 40,000 units are intentionally being kept vacant in San Francisco for speculative reasons. If we were to place a tax on those units, not so much to generate income which would be great to be used for housing homeless but more to create a disincentive to cause them to be vacant, to begin with, that would be excellent. I think in the long term, a separation of the provision of this essential housing need from the commodification of housing that the business model does not work. The laws of supply and demand do not work when entwined with basic human necessities, such as clothing, shelter, and food.

The same way that we provide food stamps to make sure that families should not go hungry, we should be providing consistent vouchers to make sure that everybody is easily housed in the marketplace. Long term, that's what I would be looking for. The right to counsel is essential but it's a bandaid measure to protect people. It doesn't address the underlying issues, to begin with.

Melissa Harris-Perry: Marika, I'll just ask you, if you want to add on to that. If you had a magic one, what would be some of the changes you'd want to see?

Marika Diaa: Well, in the realm of housing, one of the key drivers of a lot of the issues we see including evictions, including homelessness and displacement, and gentrification is the fact that we have one of life's essentials, housing, as a commodity that can be bought and sold for profit. The decommodification of housing and our other essential needs, I think, has to be front and center in any conversation about how we address the housing and eviction crisis. Even if we don't go so far as to have that conversation, at the very least, we should be having a conversation about why we think eviction is a solution to anything.

In an environment where the consequences of eviction are so grave and devastating and not just for the individuals who experience it and their families, but also for our society as a whole. We really need to be having a conversation about why do we think that the solution for say, a failure to pay rent or some other issues in a person's housing is to evict the person as opposed to myriad other solutions that should be on the table and could be up for discussion. Eviction is a very particular response that is violent, and traumatic. Really, we need to get to a place where eviction is no longer on the table as a remedy that landlords can pursue.

Melissa Harris-Perry: That was Marika Diaa from the Urban Justice Center in New York City, and Ora Prochovnick at the Eviction Defense Collaborative in San Francisco. The Takeaway reached out for comment to the Rent Stabilization Association, a trade group representing building owners in New York City. This was a statement that reads in part, property owners have been prevented from fully asserting their rights in court for over two years. If legal service providers cannot meet their contractual obligations with New York City and provide these legal services to qualifying tenants, the New York City should reallocate funds and hire private counsel to alleviate the burden from legal service providers and ensure that New York's most financially distressed tenants have representation in court.

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