Posted by: Ray Brescia | July 29, 2018

Rage Against the (Eviction) Machine: The Rule of Law Should Apply Locally Too

As a young attorney defending tenants in in housing court in New York City, it became fairly routine, in fact, I came to learn that it was standard practice, that my adversaries would file frivolous cases against my clients in order to evict them.  Such an eviction would enable the landlord to reclaim the apartment and remove it from rent regulation, destroying a unit of affordable housing forever.  In one case I recall, the landlord alleged that the tenant had made major renovations in her apartment, which would have voided her lease.  The reason?  A ceiling had collapsed and the superintendent (that is, the landlord’s employee), had to come in to make emergency repairs to patch the hole.  In another, a low-income retiree on a fixed income was facing eviction for allegedly having a different primary residence in another state, a vacation home in Florida valued at over $1 million.  This would have been a violation of the local rent laws.  The basis for the claim?  An individual with a similar name had come up in the landlord’s national search of property records that it had conducted to find dirt on my client.  But it wasn’t even the same name; it was just similar, and, for the landlord, this was “proof” that my client was gaming the system and maintaining a mansion elsewhere.  When challenged in court, the landlord’s case dissolved instantly.  These tenants were lucky though.  They had an attorney to represent them to test–and defeat–the landlord’s claims, preserving the rule of law by ensuring that the courts were not used as a tool of oppression against otherwise unrepresented tenants.  Tragically, though, the overwhelming majority of low-income tenants in housing court across the country–like over 95% in some communities–face eviction without an attorney.   It is no accident that a significant number of individuals and families entering the homeless system in New York City are from the city’s poorest neighborhoods; these low-income tenants regularly face eviction without the benefit of legal representation and often lose despite having significant defenses that should be enough to defeat their landlords’ claims.

Recently, New York City created a program that will help prevent some of these frivolous lawsuits by ensuring that all low-income tenants have a right to an attorney in eviction proceedings. This will be a costly endeavor, but research consistently shows that providing representation in housing court prevents human suffering and avoids significant public expenditures like paying for shelter and medical care to the homeless.  But another, less costly approach could also help stop such baseless claims and keep them out of court in the first place.  I was honored that the New York Law Journal would publish my opinion piece that recommends adding an additional requirement in landlord-tenant cases that would mandate that landlords’ attorneys have to affirm the merits of their clients’ claims.  In the height of the recent mortgage foreclosure crisis, New York State courts imposed a requirement, later incorporated into law by the legislature, that lawyers representing foreclosing banks had to verify the merits of their clients’ claims.  Mortgage filings dropped precipitously after that.  My op-ed recommends a similar requirement in eviction cases.  Read it here.

For more on the value of a right to counsel in eviction cases, read here.  On one campaign to preserve affordable housing in New York City, the fight to preserve Peter Cooper Village and Stuyvesant Town as affordable housing, read here.

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