Taking initiative

Proponents claim access to a lawyer when facing eviction is a matter of social justice


It’s 9 a.m. on a Friday in Boulder and eviction court is underway. This week, Feb. 21, the docket is fairly light with only a dozen or so cases. Judge Elizabeth Brodsky says that when she started four and a half years ago, her first Friday had 72 cases. Her clerk says that last year the weekly average was more like 30-35. Lately, it’s been about 15 a week. The same scenario will play out in Longmont at 10 a.m., albeit in front of a different judge, with approximately the same number of cases, if not more.

Judge Brodsky asks everyone who walks into the courtroom for their name, like taking attendance at school. There are a handful of lawyers who seem to know the judge well. She waits to start the court proceedings, attempting to give everyone time to arrive. She prefers ruling on the substance of each case, she says.

“These cases have such a tremendous impact on people and I’m reluctant to default,” she explains, as a default would automatically be in favor of the landlord.

By 9:15, she can’t wait any longer. 

“Coming to court is a difficult thing to do,” she says, before hearing any cases. “Coming to court with something as important as housing is extremely difficult. Everyone needs to leave with their dignity intact.” 

She’s speaking to everyone, but it seems most pertinent to the tenants, none of whom have legal representation on this day. The attorneys are here for the landlords. 

It’s a common occurrence in civil eviction court, not just in Boulder County but around the country. In the first half of 2019, Boulder County Democratic Socialists of America (DSA) observed 410 eviction cases in Boulder and Longmont (Colorado’s 20th Judicial Court) and found that just 2% of tenants came to court with a lawyer, whereas 88% of evicting landlords had one. It’s about the same ratio that existed for the 1,312 eviction filings in Boulder County in 2018, according to a study currently underway by the City of Boulder. 

“An eviction ruins life, period,” says Ruy Arango, one of the volunteer DSA members who observed eviction court last year. “Anyone who loses their housing via an eviction trial is made homeless.”

Arango is now the campaign chair for No Eviction Without Representation (NEWR), which is currently circulating petitions to get an initiative on the City of Boulder’s November ballot. 

The NEWR initiative would institute a $75 fee per rental unit in Boulder, paid for by landlords, to guarantee legal representation for every renter in the City if and when their housing is threatened. It would also provide tenants’ rights education for all renters and establish a tenant committee, which would oversee a legal services coordinator position and report annually to City Council.

“It’s a bit of a Wild West with evictions right now,” says Jason Legg, a tenants’ rights attorney in Denver who helped draft the initiative. “We have a housing crisis that makes it a matter of when, not if, many tenants are going to face eviction — just looking at average earnings and ratio of earnings to rent.”

When eviction does occur, the process moves quickly, taking only a few weeks from the first notice to someone being forced out of their home. Without legal representation, many tenants show up in court, simply watch the process play out in front of them, and are given a 48-hour window to move out if the judge rules in favor of the landlord. 

“The [NEWR] program provides tenants with counsel that at the very least you’re going to be able to file an answer and respond to an eviction proceeding,” Legg says. “Just filing an answer from an attorney is going to buy you a week to two weeks to try to negotiate a resolution and then analyze your case to see if eviction is really justified under the circumstances.”

The Boulder initiative is part of a growing “right to counsel” movement across the country, gaining national attention in recent years sparked in part by Mathhew Desmond’s Pulitzer-Prize winning book Evicted: Poverty and Profit in the American City. Desmond argues that often eviction is a root cause of poverty in the U.S., not simply a condition of it. He suggests, “Establishing publicly funded legal services for low-income families in housing court would be a cost-effective measure that would prevent homelessness, decrease evictions, and give poor families a fair shake.”  

According to the Center for American Progress, representation in eviction court drastically changes the outcome for tenants nationwide. In several studies, a right to counsel resulted in significantly fewer evictions as well as keeping eviction filings off tenants’ records (which could prevent them from finding subsequent housing), reducing fines and fees owed to landlords, and helping tenants find alternative housing and apply for rental assistance. 

New York City was the first jurisdiction to implement a right to counsel for low-income renters in 2017, and by most estimations it’s working. In the first year it saved an estimated $320 million, even after accounting for the cost of providing lawyers, by preventing individuals and families from needing homeless shelters and services, as well as preserving affordable rental units. The mayor has plans to expand the program, and Rep. Alexandria Ocasio-Cortez wants to apply it not just in big cities but nationwide. 

San Francisco also implemented the right to counsel in July 2019 in the hopes of preventing eviction, which accounts for about 17% of the area’s homelessness. Philadelphia and Newark, New Jersey, also guarantee legal representation for low-income tenants, while several other cities including Washington, D.C. and Minneapolis have introduced pilot programs. Los Angeles has a growing eviction defense fund. 

The Boulder initiative varies slightly from the efforts in other cities, mainly in its funding mechanism.  Because general funds aren’t available due to TABOR restrictions, the fees paid by landlords would generate an estimated $1.5 million a year according to Arango. Also, “it’s very important to us that we don’t fund this through a sales tax because that’s regressive and you just end up making the poorest people pay for it,” he says. 

Additionally, under NEWR, legal representation would be applied universally to all tenants in Boulder whereas most other legal aid programs in Boulder County are reserved for low-income earners and seniors and also may ask for immigration status as part of eligibility. Legg says an eviction threat is as good a proxy for determining need as income thresholds, and making the program universal will cut down on administrative costs and review time. 

“There’s a moral argument to be made for universality, too,” Legg says. “We believe everyone has a right to a home. And if you’ve got a right to a home, you should have a right to a defense of losing your home no matter what.”

For the City of Boulder, understanding eviction trends is part of addressing the long list of goals regarding economic mobility, housing resilience and stability, specifically in its affordable housing and homelessness strategies. 

Overall, the eviction filing rate is 2.78% for the approximately 47,000 rental households in Boulder County according to Wendy Schwartz, policy manager at Boulder’s Department of Human Services. That’s lower than the statewide average of 5.84%, and significantly lower than other cities in the metro area: Denver’s rate is 4.88%, Westminster’s is 6.97% and Aurora’s is a staggering 11.99% according to Eviction Lab, a nationwide study of eviction started by Desmond at Princeton University, where he is a professor of sociology. 

Still, “as part of our goals for housing stability, we want to minimize [eviction filings] regardless of where we start compared to other cities or counties,” Schwartz says. (Actual eviction rates in the metro area are much lower than the eviction filing rate. Boulder County is not represented in Eviction Lab and Schwartz doesn’t yet have data on actual evictions.)

While myriad factors can result in an eviction filing, roughly 85-90% of eviction cases in Boulder are over non-payment of rent, according to Todd Ulrich, a property manager and board president of Boulder Area Rental Housing Association (BARHA), a trade organization for residential rental property owners and managers.

Debbie Wilson, a lawyer with Springman, Braden, Wilson & Pontius, who has been representing landlords and management companies in court for 25 years, says in 2018 she filed 86 cases in Boulder County, four of which were over compliance issues. The rest were for non-payment of rent, 60% of which were resolved before the court date.  

“Most of the people, if they wanted to stay, they came up with the money in Boulder,” Wilson says. “You don’t really need a lawyer to help you find the money. You need to go and find the resources and get it paid.”

Both Wilson and Ulrich say that providing tenants with community resources and information before they even get into a situation facing eviction would be time and money better spent than providing legal representation in court. 

And BAHRA is currently working with the City of Boulder to preemptively connect tenants to resources such as rental assistance, food programs and other services in an effort to avoid non-payment of rent and eviction proceedings. 

“We think if we were to offer other resources earlier in this process, it would prevent a lot of these [cases] from ever even going to court,” Ulrich says. “So there wouldn’t be a need for more legal interaction.”

The 20th Judicial District is also working on getting more information to tenants earlier in the process, and strongly advises most cases go through mediation provided by both the cities of Longmont and Boulder to try and resolve cases before the judge makes a ruling. 

Before Judge Brodsky starts down the docket in court, she makes sure there are enough handouts to give everyone. The handout lists common eviction court terms, a short rundown of what to expect from the process, what a mediation agreement could look like and a resource list for the few legal aid programs that are available in the community, as well as those for basic needs like the Emergency Family Assistance Association and OUR Center. It’s part of an improvement project she’s working on with Carin Armstrong, community mediation program manager for the City of Boulder, and some of the other mediators. The project is attempting to get people information about potential resources and help in order to prevent eviction altogether. 

“It’s in all of our interest to keep people housed,” Brodsky says. 

“The language is unfamiliar and confusing for folks and it’s a really stressful time so the more people can have beforehand to try and understand what might happen the better,” Armstrong says. 

Armstrong estimates her office mediates about 75 tenant/landlord disputes each year, and she’s able to help the parties reach an agreement in 70% of those cases.

“Usually agreements can look like one of two things, either a payment plan for the tenant to get caught up with rent and stay in the property. Or if that’s not option,” Armstrong says, “it’s usually an agreement around a move-out date.”

But it’s hard to say whether or not having legal representation helps tenants, Armstrong says, as every case is different. 

“Negotiating and navigating the process is an important piece, and maybe legal representation would help in some cases and others maybe it wouldn’t make any difference at all,” she says. 

Susan Spaulding, community relations specialist and mediator for the City of Longmont, says her office sees approximately 90 mediation cases a year. 

“It’s a very emotional relationship, and it’s a very weird relationship, too,” she says. “This is the tenant’s home with all the emotional significance of that. But for the landlord, they’re turning over a very valuable asset to the total care and control of this person. So there’s a lot of innate tension there.”

In a recent case, Spaulding says she was able to get the landlord to hold off from a forcible eviction two additional weeks in an effort to try and assist the tenant in finding financial help from the community. She also just helped another tenant, who has multiple sclerosis, get funding from the MS Society. 

Spaulding is skeptical of the NEWR initiative, suggesting, like Ulrich and Wilson, the resources could be applied elsewhere in the community to prevent evictions. 

“To me that money would be better spent getting mediators. Not that an attorney can’t help once in awhile,” Spaulding says. But “what people need is really competent mediation.” 

Funding a landlord insurance fund and case management, especially when it comes to housing people with mental health and substance abuse issues, could also really help. “The landlord needs to have help. They’re not doing this to be social workers.” 

Those with the NEWR campaign would also like to see more people connecting to increased resource pools. No one is arguing against increased social services. However, providing legal representation for every tenant facing eviction is a matter of equity, given the majority of landlords have lawyers.

“Right now, with the circumstances we have where some more equitable and just solution to the housing crisis isn’t on the table, what’s happening in Boulder (with the NEWR campaign) is the next best thing,” Legg says. “It’ll make meaningful change for people facing eviction.”

Even with free mediation services, having an attorney who understands residential law and tenants’ rights can really make a difference, Legg says. 

“You have a mediator interested in reaching a resolution and you have one side (the landlord) with an attorney zealously advocating for their interests…” Legg says. “Tenants deserve to have representation there.”

Legg is currently representing a client who was asked to pay rent via moneygram, but it disappeared from the landlord’s account. Now they’re facing eviction over what appears to be non-payment. But by filing an answer in court, Legg was able to buy them more time to figure out what happened. Or there are situations where electricity or hot water goes out and tenants think they have the right to withhold rent and then find themselves in eviction proceedings. 

 “Even in situations where it is clear-cut,” Legg says, “being able to get some time and some leverage to negotiate [makes for] a much more humane society worth living in.”

Arango for one is optimistic the people of Boulder will support NEWR and the campaign already has a third of the signatures it needs to get the initiative on November’s ballot with four months left to gather more. From there, Arango says, he hopes the program spreads to other jurisdictions in the area. 

“Boulder sets the tone for the County,” Arango says. 

“There’s going to be pushback and it’s going to be from landlords, but we’re confident that if you’re a renter, this is going to be something that is obviously to your benefit,” he continues. “If you are a homeowner, presumably you have some amount of sympathy for people who rent and are less fortunate than you.”

As for the City, Schwartz says, they’re hoping to have their analysis wrapped up by April, including a more thorough examination of the NEWR proposal. 

“There’s going to be probably a range of options in terms of what can be effective,” she says. “And so we’re — over the next couple months — going to be looking more into that to see where we have the opportunities to partner across the community and really across the region to bolster housing stability.” 

Back in the courtroom on Friday, Feb. 21, everything wraps up in about 30 minutes.  

There are some procedural missteps that prevented rulings in a few cases, other cases go into mediation to see if the parties can come to some sort of agreement short of a forced eviction. 

One man starts arguing that he doesn’t have heat and his garbage disposal doesn’t work. Does that give him any rights in this case? But the judge can’t give legal advice and suggests he goes into mediation. 

In two cases, the tenants aren’t there and the judge rules, by default, in favor of the landlords. 

In another case, the tenant is there with some paperwork, ready to do whatever it takes to keep his house, but neither the landlord or their lawyer are present. “Dismissed without prejudice,” Judge Brodsky says, explaining that means the landlord can start the process all over again as soon as they want. 

Two other cases are dismissed the same ways as neither the landlord or the tenant are present. 

With the two cases still going through mediation out in the courtroom hallway, Brodsky dismisses court in order to go back in her chambers and prepare for court at the jail in a few hours. 

And with that, eviction court is over for the week.  

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