Evictions and Homelessness: Exploring Right to Counsel and Mandatory Mediation as Policy Interventions

Evictions are one of the more visible symptoms of the compounding issues plaguing housing as we know it today, most glaringly the housing affordability crisis and the dismal state of tenant rights and protections currently afforded to renters in Missouri and  across the country. Evictions are a major contributor of homelessness within our communities. A study tracking weekly eviction filings in 7 states and 31 cities found over 1.3 million evictions have occurred since mid-march of 2022 with over 71,000 of those evictions occurring in Missouri.

Contributing factors to eviction and homelessness include:

• Housing Supply Shortage: A 2022 report from The National Low Income Housing Coalition finds a housing shortage of nearly 120,000 affordable and available rental homes for extremely low income (ELI) households in Missouri (a maximum income of $26,200 for a 4 person household). For many of these households, any unforeseen emergency—such as a job loss or medical emergency—is enough to push them over the edge. Their housing becomes unaffordable, then they miss their rent payment, and this triggers an eviction. 
• Shrinking Availability of Rentals: The inventory of low-cost rental housing continues to shrink with housing experts projecting the loss of almost 20,000 currently affordable (via Missouri’s Low Income Housing Tax Credit program) housing units over the next decade, as their 30 year affordability periods sunset. 
• Skyrocketing Rental Costs: Rent increases, sometimes doubling, or even tripling, upon lease renewal can be seen as being tantamount to the eviction of tenants without due process. Though landlords cannot raise rents during the middle of a lease, neither are they required to provide tenants with adequate and reasonable notice of planned rent increases between lease terms. This leaves tenants with slim odds of finding suitably affordable alternatives to prevent homelessness. Missouri state law currently prevents any locality from enacting rent control laws that would limit rent increases, leaving landlords able to set rental rates without limits.  
• Retaliatory Landlords: Beyond the inability of many renters to keep up with skyrocketing rent costs, tenants also frequently experience retaliatory evictions when attempting to assert their rights.

Evictions do more than just force families out of their homes, they are incredibly traumatizing and destabilizing events that can throw individuals, families and communities into cycles of loss. From the loss of personal belongings, to mental and physical health, employment, child custody, educational attainment, social connectedness, stability, and cohesion, the impacts of eviction extend beyond the individuals and families facing them and negatively affect the broader community. Numerous studies and articles show increased spending for shelter space and other emergency services that respond to homelessness cost significantly more than support programs that keep people housed. One such study found how a chronically unhoused person costs taxpayers an average of $35,578/year versus $12,800/year when they are placed in supportive housing.

While eviction statistics vary from location to location, un informe from National Coalition for a Civil Right to Counsel found that in several dozen jurisdictions, landlords had legal representation 81% of the time while tenants only had representation 3% of the time. The outcomes of such an immense imbalance are not surprising; landlords overwhelmingly win and tenants are evicted 90-98% of the time. 

In this weekly perspective, we are exploring two policy interventions that correct the power imbalances in courtrooms; Mandatory Mediation and Tenants Right to Counsel. 

Mandatory Mediation

During the pandemic, several states and localities enacted policies which either required or incentivized landlords to participate in mediation prior to proceeding with an eviction. For example, the city of Philadelphia enacted the Eviction Diversion Program, requiring mandatory mediation in cases involving evictions. Landlords seeking eviction against tenants for nonpayment of rent were required to apply for rental assistance, participate in the mandatory mediation program, and wait for the passage of 45 days before being able to file for eviction against a tenant if issues were not resolved. 

These steps ensured the distribution of millions of dollars in emergency rental assistance and ensured the opportunity for tenants and landlords to come to a compromise such as payment plans, a temporary reduction of rent, or a more tenable move-out plan that allows the renter more time to find alternative affordable housing. Philadelphia’s program resulted in a reduction of eviction filings by 75% compared to pre-COVID levels. In over 2,500 mediations where landlord and tenant participated, over 90% resulted in an agreement or an agreement to continue to negotiate. 

While mediation can be a useful tool, its effectiveness is highly dependent on whether additional tenant protections are in place and whether mediation is mandated to occur before the filing of an eviction suit. The voluntary nature of some eviction mediation policies were not as effective and likely served as a barrier to widespread landlord participation.

Of course, not every dispute is solvable through mediation. The major power imbalance between the two parties involved in a dispute can sometimes make mediation difficult or unworkable. When a situation moves to legal proceedings, Tenants’ Right to Counsel can offer additional protections to tenants.

Tenants’ Right to Counsel

Despite the massive number of people being evicted across the US every year, prior to 2017 no jurisdiction in the country provided a guarantee of legal representation for the tenant in the legal proceeding. After years of powerful tenant-led organizing in New York City, it became the first city to pass legislation committing to make legal services available to all tenants facing eviction in housing court. As of 2022, 16 jurisdictions have passed a right to counsel for tenants, with 3 states, Washington, Maryland and Connecticut, enacting the right to counsel at the state level.

Right to Counsel’s effectiveness in preventing evictions is promising. In Kansas City, the eviction rate before 2022 was 99%. Three months after Right to Counsel was implemented, it was less than 20%. In Cleveland, 93% of clients in the Right to Counsel program avoided an eviction judgment or involuntary move, and in New York City, 84% of tenants facing eviction were able to stay in their homes. Overall, research has shown tenants who had full representation were over four times more likely to stay in their homes and four times less likely to enter homeless shelters. More data from additional jurisdictions is available from the National Civil Right to Counsel. 

Providing legal counsel for tenants is also a deterrent for landlords who would otherwise harass tenants, file frivolous lawsuits, deny services and repairs, or charge illegal rents. Landlords can be more willing to work with tenants when they are no longer all but guaranteed a quick, easy path to eviction. In New York City, eviction filings decreased by 30% since the program rolled out. Attorney representation for both landlord and tenant has also shown to increase settlement rates, with fully represented tenants winning or settling their cases 96% of the time. This has the additional benefit of reducing already overloaded court dockets, allowing judges to oversee and ensure more accurate and fair outcomes for both tenant and landlord. 

The success of these programs can save thousands or tens of thousands of public dollars in shelter costs for each eviction averted. For example, Kansas City’s Right to Counsel Ordinance, estimates every dollar spent on legal representation for tenants saves the city $3 on emergency services. A 2020 analysis conducted in Baltimore found that an approximately $5.7 million investment in a Right to Counsel program could reduce the costs related to disruptive displacement by $17.5 million each year. Among the cost savings is $10.6 million for emergency shelter and housing programs, nearly $5 million related to public school funding and transportation costs, and $2 million on Medicaid and foster care. 

While it is clear that instituting mandatory mediation and Right to Counsel can be excellent tools to help people stay housed – they cannot on their own end the cycle of poverty, eviction, and homelessness that is the reality for many people. Long term commitments on the federal, state and local levels to structurally change the untenable housing system are also needed. But until we see that investment, these two tools can help prevent the trauma and cycle of loss created by evictions.