Page 18 - Impact: Collected Essays on Expanding Access to Justice

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Under New York law, “self-help” eviction is illegal; a landlord must use a court in order to evict .21 When tenants appear in court without counsel, they generally do not have the capacity to convey sufficient and relevant information in an acceptable form to enable the court to make a fair decision on the law and the facts . Thus, the right to counsel is a right that checks the power of government by assuring that government has sufficient and relevant information on which to make a decision .
In this sense, rights limit government authority and “the creation of a new individual right might so much affect the power of the Government and strengthen the status of particular individuals that their creation might be fundamentally different than the mere creation of a law .”22
I was evicted one time . I lived up on Mosholu Parkway and I did not understand “stipulation .”
[Did you have a lawyer?]
I did not . I thought I knew what I was doing, but it’s not just the money that you have to pay, if they tell you “you have to pay it on Tuesday the 10th,” you do not pay it on Thursday the 14th .
[Right .]
And when they want you out, they want you out .23
A right protects the individual’s well-being, security and stability
Rights also serve to protect an individual’s well-being, security and stability,24 and a right to counsel in eviction cases would make an important contribution to the well-being and sense of security and stability of low-income tenants in New York City . The devastating and destabilizing effects of both eviction and the threat of eviction cannot be overstated . In his recent book, Evicted: Poverty and Profit in the American City, Professor Matthew Desmond of Harvard University describes in great detail the impact eviction has on low-income households in Milwaukee – homeless shelters and the streets, dilapidated housing and dangerous neighborhoods, depression and illness, and long term developmental consequences for traumatized children .25 All the evidence shows that representation by counsel prevents evictions .26 Thus, while the right to counsel will not extinguish evictions entirely, it will reduce them significantly and create a buffer of protection for tenants between having and not having a home . For low-income people, the awareness of that protection would be a relief that fosters their sense of security, stability and well-being . Tenant leaders know this very well:
Everybody that I grew up with, that grew up in that neighborhood, that went to grammar school with me, they have all moved out because of harassment, and they told
21 See generally andrew scherer, residenTial landlord-TenanT law in new york §§ 7:1-7:39 (2015-2016) (concerning “Origins of Summary Proceedings and Need for Judicial Process”).
22 McKennett, supra note 20, at 209.
23 Gwynn Smalls, CASA focus group, Nov. 17, 2015.
24 Richard h. Fallon, Jr., Individual Rights and the Powers of Government, 27 ga. l. reV. 343, 353–54 (1993).
25 See generally maTThew desmond, eVicTed: PoVerTy and ProfiT in The american ciTy (2016).
26 See bosTon bar associaTion Task force on The ciVil righT To counsel, supra note 11; Carroll Seron et al., The Impact of Legal Counsel on Outcomes for Poor Tenants in New York City’s Housing Court: Results of a Randomized Experiment, 35 law & soc’y reV. 419 (2001).
Impact: Collected Essays on Expanding Access to Justice