The Disturbing Reality of the Right to Counsel in the Aftermath of the Covid-19 Pandemic

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In New York Housing Courts, the right to free legal representation is still theoretically in effect, but practically, it's no longer. The disturbing reality is that most tenants facing eviction now have to represent themselves in court. The vast majority of these pro-se tenants have no idea of their rights, no notion of the laws applicable to their situation, and no way of identifying whether the landlord’s claims are fraudulent or not. The system was already designed to make the tenants fail, and without a true and effective Right to Counsel ensuring proper legal representation, low income New Yorkers are and continue to be cruelly and unfairly dispossessed from their home.

This is the highly disturbing reality of the Housing Court system in New York right now. Stay with me as we uncover what is the Right to Counsel Law and how it faded away, as a result of the Covid-19 pandemic.

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What is the Right to Counsel Law (or Universal Access to Counsel Law)?

The NY Right to Counsel Law was enacted in 2017. It guarantees free legal representation to all low-income New Yorkers facing eviction, which completely changed the game in housing courts.

Before this law came into effect, the vast majority of tenants had to represent themselves in court, for obvious financial reasons, whereas most landlords had no problem retaining their own attorneys. Needless to say, in a capitalist system favoring the “lords of the land”, without legal assistance, low-income New Yorkers were highly prone to lose their cases or vacate their home preemptively because of all the threats, harassment and fears attached to eviction proceedings.

In theory, the Right to Counsel Law grants all New Yorkers facing eviction, with an income of 200% of the Federal Poverty Level or lower, the right to be represented by a housing attorney. Those with higher income have the right to free legal advice. More recently, the Right to Counsel law extended to anybody 60 or older, facing eviction, regardless of their income.

This law and its implementation was a huge win for the people because it relieved some of the highly damaging inequalities between Respondents and Petitioners, and helped address the systemic discriminations rooted in the judicial system that were preventing tenants from achieving a proper defense. According to the NYC Department of Social Services, since this law came into effect, about 78% of represented tenants who were facing eviction, remained in their home.

How the Covid-19 Pandemic led to the current housing court crisis?

During the Pandemic, New York State enacted the Eviction Moratorium that temporarily prevented most tenants from being evicted. Practically, most tenants facing eviction had their case temporarily suspended. Some holdover cases where the landlords were not seeking any money, stayed active, but the vast majority of the cases were, in fact, up in the air, for about two years, until the Moratorium expired in January 2022.

Their cases being “stayed” for so long, many tenants accumulated enormous rental arrears amounting two years of back rent or more. A significant number of people lost income during the pandemic, and faced tremendous financial hardships due to extreme and unforeseeable circumstances. Others were under the impression that they no longer had to pay rent, so they simply stopped paying and did not put money aside. As time passed, and rental arrears continued accruing, those eviction cases got even more arduous and nowhere close to getting resolved.

The amount of eviction cases dangerously accumulated. Nonpayment cases were not “active” but they were not getting resolved either, and the system did not prevent the landlords from starting new proceedings. As the pandemic continued and worsened, more and more tenants were being sued, leading to an overload of eviction cases.

The legal providers screamed for help, but stayed unheard. Inevitably, the number of tenants in court began to exceed the number of cases legal aid organizations were able to take on, leading to this state of Housing Court debacle we are currently in.

Under these current circumstances, legal providers are overworked and unable to represent all the tenants. Eviction cases continue to accumulate and the courts allow all the cases to go along, without consideration of the tenants being represented by an attorney or not.

This is the highly disturbing reality of the Housing Court system in New York right now. If you are currently being sued by your landlord and are not represented by an attorney, please know that it would be challenging, but it isn’t impossible for you to prevail. I suggest that you read the next article of this series My landlord is trying to evict me in housing court, now what? Check out the other articles of this series too if you can. I trust it may help provide some context, and may hopefully help form your strategy.

I hope it helps, don’t give up on yourself. You have rights, claim them!