Biden’s Renter’s Bill of Rights: Is it Time for the Right to Counsel to Evolve?
Photo by Infrogmation of New Orleans, CC BY-SA 2.5
He who represents himself in court (and let’s be honest — it is usually a he) has a fool for a client, the saying goes. Thankfully, the right to counsel is one of the most well-known and fundamental rights in the US Constitution. It’s right there in every episode of Law & Order, right around when the perp’s head is pushed down as he is hustled into the back of the cruiser. You have a right to an attorney. If you cannot afford an attorney, one will be appointed for you.
Like most things law-related, it’s not that simple.
Yes, the Sixth Amendment assures a right to counsel: In all criminal prosecutions, the accused shall enjoy the right to [a bunch of stuff] and to have the Assistance of Counsel for his defence. Unnecessary capitalization and archaic spelling notwithstanding, the language seems cut and dried.1.
Not so, said the Supreme Court of the United States as recently as 1942. In Betts v Brady, a Maryland man was refused counsel for his felony charges and wound up in prison despite his best efforts at self-representation. He filed a writ of habeas corpus asserting his right to counsel and took his case to SCOTUS. The Court sought to answer the question of whether assistance of counsel was “so fundamental and essential to a fair trial” that denial of the same amounted to denial of due process under the 14th Amendment. They determined that it did not, declaring outright that “appointment of counsel is not a fundamental right, essential to a fair trial.”
Twenty-one years later, a Florida man (hurray for Florida man) named Clarence Gideon, also convicted of a felony after being denied an attorney, tried making the same argument. This time, he found a SCOTUS bench more sympathetic to his pleas. This, of course, was the benchmark case of Gideon v Wainright, which overruled Betts and held the right to counsel provided by the 6th Amendment was applicable to the states via the 14th.
…reason and reflection, require us to recognize that, in our adversary system of criminal justice, any person haled into court, who is too poor to hire a lawyer, cannot be assured a fair trial unless counsel is provided for him. This seems to us to be an obvious truth. Governments, both state and federal, quite properly spend vast sums of money to establish machinery to try defendants accused of crime. Lawyers to prosecute are everywhere deemed essential to protect the public’s interest in an orderly society… That government hires lawyers to prosecute and defendants who have the money hire lawyers to defend are the strongest indications of the widespread belief that lawyers in criminal courts are necessities, not luxuries. The right of one charged with crime to counsel may not be deemed fundamental and essential to fair trials in some countries, but it is in ours.
So, those in America who are accused of a crime have a right to counsel. If you cannot afford one, the court will appoint one for you at no cost. And that’s that.
Except it’s not that simple, even now. First there are those operative words: “if you cannot afford one,” and interpretation of that phrase differs by jurisdiction. Sure, if you lose your job because you go to jail and you have zero income, you will likely qualify. But when I was practicing in the criminal law world, anyone making much more than minimum wage was disqualified in my jurisdiction. Assets were taken into account as well; is your car worth X dollars? You could sell that to pay for your lawyer, ergo you are not indigent. Your average middle class worker does not have $5,000-$10,000 laying around to retain private representation, yet they would not be eligible for court-appointed counsel.
There are other rules, again varying by jurisdiction. Not all crimes are jailable; nevertheless, they are crimes. In West Virginia, non-jailable offenses do not qualify for court appointed counsel. Speeding is a crime that is typically not punishable by incarceration, and few would seriously argue that an accused speeder should be appointed a lawyer. But what if this ticket is the last straw before you lose your license? And there other, more serious “minor” offenses that do not carry potential jailtime. First offense shoplifting of an item under $500, for example, is not a jailable offense in West Virginia. An accused shoplifter is thus not entitled to counsel, despite the damage a conviction like that can do to a person’s prospects in life. The same is true for a person under 21 charged with DUI – a serious conviction, without question, and one that does not carry jail time nor trigger a right to counsel in West Virginia.
What’s the point here?
Well, it’s just a little primer on how something as seemingly axiomatic as the right to counsel is not nearly as absolute as one might believe. Nevertheless, the White House recently floated a proposal that would extend this right to other indigent folks who are not charged with a crime – particularly, those facing eviction. The “Blueprint for a Renter’s Bill of Rights” proposes that “If an eviction is filed, tenants should be given 30 days’ notice of an eviction action and the right to counsel during an eviction proceeding.” This is not unheard of; there are a few states and local jurisdictions who already have this protection in place.
It sounds pretty good, to those of us with a bent toward social programs to help the poor (liberals, if you will); shelter is a necessity of life and the courtroom machinery is not designed to make it easy for a layperson to navigate. Many apartments and homes are not owned by mom and pop landlords but by large companies who can afford attorneys to handle what is for them a routine experience. It’s not so routine for the person who is threatened with eviction, and the help of a lawyer can go a long way toward a more favorable outcome, be it a rescinded eviction notice, negotiated reduction in back rent, or simply more time to find a new place.
In practice, however, I am skeptical, mostly because of how the system works for criminal defense. Lawyers who do court appointed defense are paid very little, especially in comparison to the work involved. To make a career out of it is difficult. It’s a labor of love and for many lawyers a calling – one I consider the highest in my profession. But you won’t get rich doing it. To do it well takes a lot of time, effort, resources, and intellectual – if not emotional – investment. In a system in which cattle-call dockets are the norm, it is simply impossible for overworked, underpaid public defenders to give every case the diligence it deserves. That’s why trials are the exception, not the norm. Plea bargains are the norm.
And if we can’t even fully guarantee those facing jail or prison the time and dedication their cases demand, I wonder how we are going to add on to it?
Legal Aid already does this work, and many firms offer pro bono assistance programs. But they are overwhelmed. How do we put in place a system for these cases like we have for criminal defense? Imperfect as it may be, there is at least a system. There has to be a mechanism for assigning cases, some incentive for lawyers to accept them (i.e., someone has to pay,) and even if lawyers are willing to take a case here or there for free, demand is likely to overshoot supply.
When the subject of socialized medicine comes up, someone inevitably says “you are not entitled to the free labor of others.” Criminal defense attorneys can tell you, this is not true. The Constitution and the Supreme Court say that people are entitled to our services in criminal cases.2 There are a lot of people in need of legal services who can’t afford to hire a lawyer. What about divorces and custody cases when Legal Aid can’t or won’t help? The consequences in those cases can be quite significant as well. Where is the line?
I am not proposing a solution, nor am I completely unreceptive to the idea of some sort of broader system of indigent representation. I just want the powers that be to make sure they understand what they’re proposing.
There’s a first time for everything.
- To be fair, the Bill of Rights says you have a right to an attorney; it does not say “for free”, which is an argument made to me by a lawyer who used to be very prominent on Twitter until they were doxed and run off the platform.
- It’s not entirely voluntary, either. Yes, most court appointed attorneys have asked to be placed on an appointment list and there are public defender offices; however, judges have the power to order any attorney practicing in their court to take on a criminal defense case.
Like much of that low level crime that doesn’t get public defense, I really think we need to retink whether the courts are the correct place to address housing. Yes, a renter enters into a contract for use of the space, and yes the law does circumscribe that contract. But having a system that makes running to the courthouse easy and frequent doesn’t address the social cost – and there always is one – from evictions.
Of course if labor was paid what it was worth I suspect evictions would drop dramatically, but that’s too straight forward a solution to ever work.Report
I don’t want to be too crass about this but having represented some mom and pop landlords in my early career my biases kind of go the other way. Not in the sense that I think we should allow people to be abruptly tossed out on their asses in the cold but more that I don’t think litigating these things is much of a solution. My (again, relatively brief) experience with is that there oftentimes isn’t anything to litigate at all. The tenant hasn’t paid the rent, isn’t going to pay the rent, and has no legally cogent justification for not paying the rent.
So the municipal code should of course require notice periods and rules about doing things in the dead of winter and the like. But what would spending another few months in court on a process that often enough already takes months to effectuate actually do? Other than maybe stick it to an unpopular constituency (landlords) nothing as far as I can tell.Report
In most cases I’ve seen with mom and pop landlords as clients, the eviction is generally a stop-loss procedure. The least bad remaining option for the landlord, and the inevitable bad outcome for the tenant. Nobody wins, it’s just a question of who gets to lose more in the future.Report
Some counterpoints:
– There are a percentage of cases that aren’t about nonpayment of rent (i.e., breach of lease) and these tend to be complex;
– Even in nonpayment cases, there are a variety of defenses that can arise: improper notice (in many jurisdictions this is a big one as many LLs fail to follow proper procedure), improper crediting of rent payments, illegal surcharges, and breaches of the warranty of habitability (in jurisdictions where that’s a defense to eviction);
– Even if there are literally no defenses, the court still has to determine whether the eviction will be on the tenant’s record, how much time the tenant gets to vacate, and whether to reduce or eliminate the alleged rent arrears. The answers to these questions are often the determinant of whether the tenant has any chance of securing future housing.
– Where a right to counsel exists (currently 15 cities and 3 states), there still isn’t a ton of litigation, but rather fairer settlements negotiated with more of an equality of power.Report
Every rental contract I’ve ever signed has been reviewed by a lawyer, first.
Every rental contract has had enough illegal language that any judge would throw it out in court on sight.
These are common contracts that are used by landlords, at least city-wide. I wouldn’t be surprised if it was state-wide either.
It’s good to have the law on your side. It’s better to not need it.Report
Yes, unsophisticated landlords — there are many — often have contracts with all kinds of unenforceable things, such as waiver of jury trial. They naively think that if both parties agree to something, it is enforceable. They aren’t any more legally sophisticated than the tenant.
But that’s not why tenants get evicted. Tenants get evicted because they don’t pay the rent, or because the landlord wants to sell the house, or because the tenant is damaging the property or being abusive to other tenants and/or the landlord. Usually, though, it’s because they don’t pay their rent.Report
It’s not just unsophisticated LLs; you’d be amazed at how many corporate LLs have illegal provisions in their leases. Sometimes they use stock leases that don’t adhere to state law, and they often fail to keep up with changes to the law that affect the leases. But without counsel for tenants, no one calls them on it. And during the pandemic, corporate LLs routinely (and in some cases, it seems knowingly) filed evictions that violated either the CARES Act moratorium or the CDC moratorium.Report
If I was a landlord, and didn’t have the money to pay the *(&T* taxes because of a federal “executive order” that I thought was unconstitutional (and immoral, and downright stupid), I might not pay either.
“I considered it my duty as an American Citizen to send this case to the courts. I will be happy to pay the moderate tax increase (aka “rent for nonpayment of taxes”, which is set at “just high enough that businesses won’t try to make a profit off paying taxes a year or two late”) once my tenants are being forced to hold up their end of the contact.”
I would NOT move to another country, in order to intentionally evade paying taxes EVER.Report
Its been noted that if we removed the ability to make plea deals, the entire system would collapse because there is no effective way for the court system to adequately process the number of accused.
Which is the problem here.
“Git Tough On Crime” always involves appropriating large amounts of tax money for police and prisons, but almost never any for public defenders or courts.
The result is predictable- a lot of militarized cops and prisons but overwhelmed defenders and courts, making the system a mockery of justice. Making plea deals the norm rather than the exception turns the justice system into a two tiered affair where there is an effective “Get Out Of Jail Free” price tag that can be paid to escape justice.Report
There’s certainly a lot of criticism to be made about the plea bargaining system, but what I’ve yet to hear anyone propose is a remotely credible alternative to it, other than maybe sentencing reform.
But as an ancillary to what I said above, about nothing to litigate, the same is true about most criminal prosecutions. Most of the time evidence of guilt is overwhelming, and there is no fact or legal argument likely to lead to an acquittal. The only leverage the accused has is the ability to make the state spend time and energy going through the motions of getting a conviction, at which point the defendant is at the mercy of the judge and very punitive sentencing guidelines. So when you get rid of plea bargaining absent a lot of other changes, all you’re doing is taking away the best chance the defendant has of a shorter sentence.Report
Please deals warp the system to make it virtually impossible to even know the truth of your statement.
Consider:
A man is wrongly accused of assault by a vengeful neighbor.
Another man beats a man nearly to death.
But in our current system, its likely that both are charged with felony assault because the plea deal system encourages overcharging.
The first man can’t afford an attorney and is desperate to get out.
The second man has a spotless record, good attorney, and has a good chance of being exonerated.
So they both take a deal for misdemeanor assault. The system will forever record that two misdemeanor assaults took place that day, even though the truth is very different.
Plea deals are, quite literally, a lie that all the participants agree to tell.
When people like you or me search Google for crime statistics, what we are seeing is a false record of lies. We really have no idea how many assaults occurred in New York City, or how many rapes or robberies occurred.
Plea deals allow the guilty to go free while the innocent are jailed, and conceals this fact under bureaucratic obfuscation.
As for solutions, what if we lavished as much money on public defenders and hired as many judges as we needed to to handle the volume?Report
This is wrong. The plea system doesn’t encourage overcharging. The penal code with all its offenses and in particular really hefty sentences encourages over charging.Report
The only nit I have to pick with what IMDB said is that the evidence of guilt is overwhelming not necessarily of the crimes charged, but of something resembling or adjacent to them. A pathetic junkie with a somewhat larger than usual personal stash is charged with possession with intent to sell. The evidence of possession is overwhelming. The evidence of intent to sell is weak. Eventually, either everyone agrees to cop to possession or the defense ends up, in effect, plea bargaining with the jury.Report
Agree with that as well. My experience when I did this was that usually the contraband, the weapon, the whatever other evidence, was in the car, or in the jacket. There was no argument to suppress it which was likely to prevail. Add in that a lot of the time it is not your client’s first experience with law enforcement, meaning that enhanced sentencing is in play. Under those circumstances a trial is likely to lead to a worse outcome not a better one.Report
It is not just the criminal justice system, the entire civil justice system would collapse if you removed mediation and settlement too. There are just too many lawsuits, most of them valid. Americans are just a litigious people.Report
Like I wrote below, the Immigration Court systems are what happens when you don’t have the ability to negotiate. There are 2.1 million cases waiting to be heard. The average wait time for the preliminary hearing is 4 years. Since many DHS lawyers feel compelled to get maximum deportations and can’t bring themselves to negotiate for official status and insist on doing long crosses when there really isn’t a need for them, you get a collapsed immigration court system.Report
The Immigration Court system is pretty good example of what happens when you can’t negotiate in Court. The more liberal courts like 26 Fed always had the immigration equivalent of plea bargaining, at least till Trump temporarily got rid of it. So if a case was sympathetic but the greater relief couldn’t be granted, the Immigration Judges would suggest a lesser form of relief called withholding of removal, which at least allowed people to stay and work in the US even if they didn’t get a green card, as a compromise. Many times DHS would offer this themselves before testimony began if the immigrant would not appeal to get rid of cases. Courts that basically see themselves in the role of ordering deportations or even in relatively pro-immigrant courts where DHS couldn’t imagine themselves plea bargaining for even limited status tend to suffer backlogs because every case has to be done in full. There is a 2.1 million backlog in immigration because of this.Report
And let’s not forget the “professional deadbeats”. My stepmother had these guys as tenants. Always behind in the rent. Always in rent court. They’d pay one month’s rent the day before court to get the case postponed. They WORKED the system. In the end, they finally left. When she went over to fix up the place (renting had soured her and she wanted to sell) they had taken appliances, destroyed stuff, etc. The final kick in the ass? She got a call one night from a guy who “got such a wonderful reference as a landlord” from her for these deadbeats, that he just had to call and ask her if her former tenants were so great. She had no idea who he was. The deadbeats had opened a PO box in her name and were impersonating her. That’s pro grade.Report
I’d like to see a comparison of the rate of delinquent renters, compared to businesses which don’t pay their rent or invoices or vendors on time, or insurance companies that drag their feet on paying claims. I know that even from my limited perspective that being 3, 4 or even 6 months delinquent on invoices is common.
The term “strategic default” was invented by businesses who WORKED the system to avoid paying debts.
The LLC was invented so that the total assets of a company could not be considered when assessing debts.
It always amazes me how bad behavior by peasants is considered scandalous but the same behavior by the elite is shrugged off, even admired for its cleverness.Report
The biggest criminal impact to retail is wage theft, yet all the resources of law enforcement are directed toward shoplifting.Report
Repeat as necessary:
Mother Jones:Whaddya in for?
“Stole a bag of chips.”
“Shoulda stole millions from Medicare. You’d be a Senator from Florida by now.”Report
True story.Report
“Oh, someone stole from you? Well, Wells Fargo created 534,280 unauthorized deposit accounts and 565,433 credit-card accounts between 2011 and 2016!”Report
I’d love to say that this sort of thing is rare and almost never happens. Buti have experience. Best I can say instead is, it’s relatively rare. It’s a risk a lot of landlords don’t consider when setting rent, especially the smaller, less sophisticated ones — and part of the reason bigger, more sophisticated landlords charge so much.Report
On the other hand, imagine how worse the system would be without Gideon v. Wainwright? I agree with everything you wrote about Public Defender system but it was always probably a tough sell to get people to pay massive amounts for a public defender system. I’d support a system where the budgets of the district attorney’s office and public defender’s office needed to be equal but that is unlikely to happen.
So Biden’s proposed system is likely to have a lot of problems but it still better than what we have now. Letting the perfect be the enemy of the good or better is a bad idea.Report
Pro Per plaintiffs are generally the bane of my existence as an insurance defense lawyer. I don’t see many of them but when I do, I generally dislike talking to them. I think quite a few of them suffer from mental illness and they use pro per complaints as a form of therapy. All of our problems of deferred maintenance come together at once.Report
Having at one point been a pro se defendant in a civil family law matter, I’d like you to roll back that assertion of mental illness.Report
On the other hand, I saw somebody represent himself pro se in front of the 2nd Circuit in oral arguments. It was some sort of customs thing. He did pretty well for himself. Was more elegant than many lawyers and made real legal arguments.Report
My take on the Gideon decision (not necessarily the courts) is that by the early 60s, the rights enforced under the Bill of Rights concerning criminal process had broadened so much, often with the creation of multi-factorial balancing tests, that legal training was necessary to implement them. The decision gets limited utility when courts appoint counsel who is not a public defender. The legal world has changed a lot since Atticus Finch who appears to have been a general practitioner was appointed to represent a defendant charged with a capitol offense.
As I recall from watching evictions, there were only three issues that the tenant can raise: (1) timely payment of rent; (2) lack of notice; or (3) some sort of defense amounting to breach of warranty of habitability. If you think about it, only the first one really matters in the long run. Inability to pay rent is not efficiently addressed by getting lawyers on the case. There are no such complicated Constitutional rights issues with rental agreements.Report
In the early 1960s, the billable hour was still a newfangled thing and the modern discovery system was still in its infancy (California did not pass discovery in its currently known form until 1987). Plus expert testimony was still developing. So it was really a different world.Report
I’ve really only do deportation defense immigration work but another lawyer once, as a compliment, called me of the last old-fashioned lawyers because of my approach. Law is very specialized now and you really do need to know one specific specialty rather than do a little of everything.Report
I guess that depends on whether you see possession of land as an incident of property, which is how Ye Olde Common Lawe treats it. If possession is an incident of property, then it is a property right and you can’t deprive someone of a property right without first affording them due process of law. Which, at minimum, requires notice of charges and penalty, the right to retain and enjoy the assistance of legal counsel, a neutral decision-maker, an opportunity to present evidence to that neutral decision-maker, and an opportunity to challenge evidence offered against you — all before a decision as to whether or not state power is deployed to then deprive you of that property interest.
Eviction procedures in most states provide this minimal amount of due process, with the neutrality of the decision-maker being sometimes questionable. Often, it appears that someone has made some effort to make sure that the procedures just barely provide this amount of due process. For a good or at least plausibly defensible reason, I might add, but all the same, there is a Constitutional dimension and so we can’t have summary evictions consistent with the Constitution.Report
Forgive me Burt, but this is misguided on several levels. First of all, the Constitutional thing is a red herring. There are no summary evictions (I don’t think) but there are a lot of jurisdictions where the process is relatively streamlined (my guess is that it’s at least a month from late rent to dispossession in all of them), and all of them give the tenant due process of law.
If a tenant has any good-faith objection to being evicted the judge of whatever court hears the case absolutely will listen to it, but like PD Shaw said, as a practical matter there never are.
Being able to evict bad tenants is an absolute lifesaver for landlords and as a former California resident I’m surprised you don’t have any appreciation for that. Maybe you haven’t tried to rent anything for 20 years. Let’s just say that situations like Jaybirds tweetlink below are typical. As soon as the landlord lets you in, he’s basically at your mercy so he’s going to jerk you around as much as possible before that so maybe it will minimize his risk.
Thinking about evictions the way you and Em are is the wrong angle. IMO it’s much better to say that housing policy and land use policy in general ought to favor renters much more than it historically has in America. Ideally, landlords and tenants are symbiotic to each other, not necessarily adversaries. The real friction is lack of available units, and lack of land dedicated to siting housing units, and the problem ought to be addressed on those terms.Report
Koz, I have no idea why you felt it necessary to call out any of this.
Of course there are Constitutional rights involved in evictions. There are Constitutional rights involved in any judicial proceeding, by definition. And of course possession of real property is a dimension of the right to own property at all, and transference of that right in exchange for mo ey is, inherently, what renting property is. If you don’t think property rights are worth treating with Constitutional seriousness, that makes me question what sort of a libertarian you are, and it makes me question your understanding of the Constitution in the first place since both the Fifth and Fourteenth Amendment Due Process Clauses are quite explicit about the government (which includes the courts) being required to afford due process before depriving people of their property.
Nowhere have I said, and nowhere did Em say, that a landlord ought not have the right and practical ability to evict a defaulting tenant. In other comments on this very page I remarked that very very bad things would happen if this were not the case. And I remarked above that while it’s unfortunate and uncommon, there really are tenants who abuse the judicial system and treat their landlords in the worst faith imaginable.
In case you don’t know or didn’t remember, for about ten years, representing landlords in eviction cases was a significant part of my practice. The bulk of my clients were mom-and-pop type landlords rather than big property management companies. The accusation that I somehow don’t appreciate their interests (apparently because I think the legal system should be fair to everyone, even tenants) stings to the point of insult. This is a similar feeling of insult as you surely felt when I questioned your libertarian bona fides just now.
Let’s call it even, then. I AGREE with you that there needs to be an efficient eviction process. I wish you would agree with me that it needs to be fair and Constitutional.Report
This is an odd comment. To put it in these terms, I’d say the eviction processes (they vary substantially by jurisdiction, of course) are already fair and Constitutional. To the extent that there is any defect in lack of respect to a legitimate equity interest, it’s the landlords who are being treated harshly.
It’s possible, I believe to have a different process (especially wrt California) that would also be fair and Constitutional and better serve everybody’s interests. Especially if one were to additionally consider adjacent policy areas, eg zoning and land use.
But you didn’t really argue that, which is what I meant when I said that the Constitutional frame of reference is a red herring. The Constitution governs, for exactly the reasons you mentioned above. But it’s not really pertinent, for the reasons PD Shaw and I wrote.
Or more specifically, the Sixth Amendment doesn’t apply directly since these aren’t criminal cases. So that leaves Due Process. Forgive me, I had forgotten or never knew that you represented small landlords back when you were practicing in California. And you hint, though you don’t directly state, that there are routinely de jure or de facto Due Process defects in eviction proceedings. By contrast, I assert that all of your tenant counterparties got their Due Process (as they would in any other jurisdiction if it matters).
And to be honest, it doesn’t seem to be an especially close call, either. It’s not even like certain situations in criminal law where things are honored more often in the breach than in the observance.
Eviction proceedings are only formalities to the extent that the facts behind them are cut-and-dried. When that’s not the case, they are anything but formalities.
So, to the extent that you disagree with me, are you aware of circumstances these elements of Due Process routinely didn’t happen?
As an aside, I have some libertarian sympathies, but I wouldn’t characterize myself as being libertarian.Report
Evictions are treated as summary proceedings everywhere, meaning expedited timelines and fewer rules protecting defendants than would be true in any other kind of civil case. Your assertion that judges will allow tenants to assert their objections is, in my organization’s experience, not at all borne out: many judges will refuse to let tenants testify until after they are forced into the hallway to meet with the LL’s attorney, and in that meeting the tenant will be threatened that any “deal” they’re offered in the hallway will disappear if they attempt to testify. Some judges don’t let tenants testify, period. Housing court is often called the wild west of civil courts, and for good reason.
You assert that a LL is at the tenant’s mercy. Consider that the LL and tenant in most cases are not similarly situated, as only one side has their home at risk. And the lease is written by the LL in a way that maximizes the LL’s interest and minimizes those of the tenant. If the tenant even tries to negotiate the terms of the lease (other than perhaps the rent level), the LL likely will refuse to rent to them. The laws in some jurisdictions require tenants to pay into court the entire amount of *alleged* rent before they’re even allowed to defend themselves, set impossibly expensive bonds for any appeals, and prevent tenants from asserting certain claims (like warranty of habitability) as defenses but rather require them to be brought as separate counterclaims or separately-filed cases. And it goes on and on.Report
You bring up a number of things, which I’m sure are related in your mind but not necessarily in mine or in the context of my earlier comment. Underlying this, I suspect without knowing for sure that you and I are working at cross-purposes.
Again, without knowing for sure, I’m going to say that you and your organization believe that tenants ought to be able to live indefinitely in the units they have rented whether or not they are current on the rent. Whereas I believe, at least in the worst housing markets (Bay Area, LA/Orange County, San Diego, NY, Boston) it is in the _public_ interest to evict nonpaying tenants. We have to be able use the available rental housing stock, as much as it exists, for housing of qualified paying tenants.
Obviously this is in the interest of landlords, but it’s also in the interest of paying tenants as well, in that they will have access to reasonable housing somewhere, not just in terms of dollar amount of rent, but also availability at any price, and avoiding convoluted and invasive screening processes.
As far as your bill of particulars go, some of them are interesting and others are, to me at least, routine things that sound ominous. For example, the idea of deals in the hallway seems pretty basic to me. In every settlement negotiation, what’s offered in settlement is irrelevant if the negotiation fails and they go to trial or hearing or whatever.
Or the idea that landlords will refuse to rent to prospective tenants who want to negotiate the terms of the lease, I don’t think you are appreciating the implications of that.
On the other hand, you also assert that some courts require the tenants pay whatever the landlord says they owe in order to get to defend themselves. That shouldn’t happen, if in fact it does. And to the extent that it does, somebody, judges, legislatures whoever, should stop it.Report
The statistics out of the jurisdictions that now have right to counsel (like NYC, San Francisco, Boulder, Kansas City, and Cleveland) belie the position that attorneys can’t efficiently address the core issues: unit retention is up, judgments for eviction are down, the default rate is down, the filing rate is down. And Sheriff’s evictions, which are the most devastating consequence, are way down. While it’s true that the vast majority of evictions involve nonpayment of rent, there are very real defenses in such cases: defective notice is widespread, and in some jurisdictions breach of warranty of habitability can be a complete defense. Many jurisdictions have added protections like just cause eviction, filing of a lead paint compliance form, or a requirement that LLs first seek rental assistance before filing, or rent stabilization, but these laws typically go ignored where the tenant has no counsel.Report
My problem with this guarantee is that it seems almost deliberately designed to bring evictions to a screaming halt, which means a lot of people living literally rent-free in someone’s house and a lot of small landlords (of which I am one) losing their shirts.Report
Andy Richter complained about setting his kiddo up with an apartment back in the heady days of 2021:
“Six months rent up front”.
An unintended consequence of the rent policies of the lockdown.
I expect to see more unintended consequences from this. Hey, maybe we could pass another law making sure that landlords can’t ask for more than first/last month’s rent! And then pass another law mandating rent be low! And then pass another law making people go back to being landlords after they quit being landlords!Report
Eh, I would see stuff like this in New York well before lockdown, like a decade before. It is more of an issue of supply and demand.Report
Back during the paleolithic when I rented, it was a first/last month +security deposit and we always got our security deposits back.
Half a year up front is crazy.Report
I assume it’s an NY thing. Your experience is same as mine and it’s only been 6 years since I rented. Though there was that place in college where I didn’t get the security deposit back for…. reasons I concede were not totally without justification.Report
It’s been my experience as well but depending on the supply of rentals landlords can ask for more stuff up front. Key fees used to be a thing, prepayment of rent another thing, if the prospective tenants are lined out the door anything goes.Report
As a guy who *actually lives in LA* I can attest that it depends on the neighborhood.
During the pandemic vacancies rose and landords were generally eager to get tenants.
As the pandemic eased up vacancies returned to normal and by “normal” meaning some areas (like in the neighborhoods surrounding USC and UCLA) apartments returned to their previous scarce status.
Data:
https://therealdeal.com/la/2022/02/09/study-confirms-market-heat-pinch-on-apartments-at-big-complexes/
So as we’ve discussed here so many times- We just gotta build more housing, a lot more.Report
Yup, there’s really no getting around the need to build more. Especially in Cali.Report
Nobody figured out how to get rid of a large anti-development faction once it takes root in politics yet. On the Pedestrian Observations blog, somebody in a recent thread pointed out that Japan’s unique situation regarding housing was helped by the real estate developers being a lot stronger politically than the would be planner bureaucrats in the immediate years following World War II. Also that houses are seen as depreciating rather than appreciating asset in Japan.Report
There is a change in the political climate here in CA, even if not nearly enough.
A spate of new bills passed in 2021 and 22 overriding local communities ability to restrict zoning, and streamlining the approval process.
I’m working on a project right now in a small town in central CA where, in response to the new laws, the town is re-writing their zoning code to allow a new 3 story medium density apartment building where currently only a 1 story low density building would be permitted.
Here’s another, in Santa Monica:
City Hall braces for the Builder’s Remedy development boom
Overview:
Developers have begun filing permits to build large housing projects throughout the city that far exceed local zoning restrictions and while those permits are subject to cursory review, the City lacks any clear path to head off construction of more than 4,500 new units.
https://smdp.com/2022/12/15/development/
To be sure, the city is dragging its feet, but now the power resides with the pro-development forces.Report
State laws to override local zoning and development decisions in order to push density look like that will be one of the big issues in the Colorado state legislature this session.Report
You can’t do it in one fell swoop in this country but the culture change on the subject is coming and it’s already having significant effects on the politics (which are downstream of culture).Report
It’s part supply and demand, but not just that. Well beyond that, it’s the worst jurisdictions which employ variations on what Em is talking about that makes it more and more a pain to rent anything decent.Report
Or maybe, we can pass a bunch of laws making it really hard to be landlords, and they would sell their properties, and people would be able to buy housing.
I like how literally no one in this discussion has seem to think ‘maybe the problem here is the sheer amount of rental properties and that people can’t actually afford those so end up defaulting a lot, and maybe the thing to do here isn’t to deal with the issues being created by that, but instead to change it where that is no longer true’.Report
“In our world where everyone has been doused in gasoline, how do we stop the people who are on fire from accidentally catching other people on fire? Could people carry around fireproof insulation, could we have sprinklers in the ceiling, or at least better fire detection systems that can pinpoint a…wait ,what? What do you mean, why is everyone doused in gasoline?”Report
Make sure that it doesn’t turn into “Let’s make it so that you have to be a gimungous corporation to be able to navigate being a landlord!”
I mean, if that happened, it would arguably be worse.Report
“really hard” was not meant to mean “really complicated”, it was “really expensive”
And it should scale off how much landlording someone does, and of what.Report
Are corporations better able to navigate debt and/or the tax code than individuals?
Because, if they have demonstrated that they are, then we really need to be careful that we’re not engaging in a giveaway from the individual to stuff like BlackRock.Report
I hope this is a tongue in cheek comment. Because if not . . .Report
I guess it depends on the answer to the question, doesn’t it?
If the answer to the question is “No, corporations have not demonstrated that they’re better at navigating debt and/or the tax code than individuals”, then we won’t have a problem going forward with the whole “pass a bunch of laws” plan.
(Who would be advising those who write the laws we’re proposing be passed? If the answer is “lobbyists”, we should probably ask who they’d be lobbying for.)Report
That is a really good point.
We need to treat single family housing differently than apartments. Make it expensive and not particularly profitable to rent out houses. To be clear, I’m not saying ‘impossible’…in fact, it’s probably okay to not tax the _first_ rental house someone owns, which I think would solve a lot of the backlash. Or at least, start out not taxing it. But it should scale up quickly based on number of houses.
As for apartments, leave them how they are…well, not exactly how they are, I’d like to have a vacancy tax, where leaving more than a certain number of apartments empty costs some money, but we generally expect them to be owned by a corporation.
But the thing is, I’d apply that ‘how much landlording someone does’ to corporations, too. I’d actually be okay with the taxes not being particularly great with corporations that own _more than one_ contiguous apartment complex.
Heck, make every single apartment complex be an individual corporation. The economics of scale of multiple complexes (such that they are) don’t get passed to renters anyway. So don’t let it happen!
It’s like we literally can’t remember that corporations exists because they are supposedly a net good, and it’s _entirely reasonable_ to alter how they work until they actually are. Make a special kind of corporation that is the only sort allowed to own apartment complexes, and give it specific rules.
And it’s at that point the question could be raised ‘Won’t corporations, and people, just give complexes to smaller corporations to own it, and then own the smaller corporation?’, and…that’s getting into complicated tax code that neither of us know how to deal with, but I bet there’s a solution.
The point is to set things up where apartments complexes actually a) need people in them, and b) compete with each other. And meanwhile purchasable houses exist.
I think that would help a lot.Report
I remember the old argument about taxing second houses and being surprised at the number of people who explained that vacation homes were really common.
Alas.
As for actually solving the problem, this story points out that:
The story talks about zoning a lot.
If we want to make housing affordable, we need to change zoning rather than change who gets taxed what.
Just change the zoning. Let people build. Prices will go down.
But you have to build a *LOT*. A *LOT*. Seriously, more than that.Report
And California did something really interesting:
This is an important first step to building enough housing.
And I think it will do more than fiddling with taxation.Report
If someone can afford a vacation home, a) they actually _can_ pay additional taxes on that, b) morally, they’ve taken the home off the market just like everyone else who owns empty houses do.
And thus if we’re actually trying to alter behavior via these taxes, there’s no reason not to include them. Either people can decide not to have an extra house, or they can pay extra for that right. (And I’m not talking about a huge amount here, the point is that each additional house needs to be go up more and more, the first extra house should be…I dunno, taxed at 150% the first.)
The only reason to exclude them (Or first rental properties, like I suggested), would be the idea that such an exclusion would hypothetically reduce the number of people opposing the taxes. That such exclusion would be required to pass that tax.
Which is something that _sounds_ true, but in reality laws are generally decided by insanely wealthy people, and a good chunk of them have so much real estate they won’t approve of any taxes on it at all. I’m not really sure there is a large group of ‘people with exactly one extra house who wield meaningful political power and who can be bribed into taxing people who own more houses than that if we promise not to tax them’ in this country. But I’m willing to be convinced…or just assume it is true for the sake of argument.Report
Actually, thinking about to the last time we talked about this, I think we realized…logically, most people who own vacation houses tend to be _couples_.
Who…should get two normally-taxed houses. Because there are two of them.
Doing it by person solves a lot of things…it also incidentally solves the problem of ‘Parent died, left me a house that I sold immediately, but got stuck paying a lot of property tax on because it counted as an extra house’. Well…depending on how things work, the estate probably actually owned that, and the estate, being ‘a person’ (A deceased person, but still a person.), gets to have a normally-taxed house.Report
“Make sure that it doesn’t turn into “Let’s make it so that you have to be a gimungous corporation to be able to navigate being a landlord!””
Actually, liberals prefer everything owned by gimungous corporations.
* Gimungous corporations have a huge attack surface. I can conduct protest action against ConHugeCo right here in my hometown, even if the specific act I’m protesting is on another continent entirely. Meanwhile, Bob’s Pizza Shop in downtown Midlanowear doesn’t even have a Facebook page, let alone care what anyone on the internet says about their window sign announcing that they are supporters of the “LGB (Let’s Go Brandon) Movement”.
* Gimungous corporations that eat the market result in there being fewer entities for regulators to deal with. The amount of work needed to verify regulatory compliance scales linearly with the number of players in a market, and eventually you run out of work-hours in your office. And obviously you can’t just let people run around doing things without proper supervision…Report
I’m neutral on landlords, but how do you think someone who’s unable to come up with the rent is going to be able to afford to buy?Report
What do _you_ think the people who find themselves holding multiple houses but are getting heavily taxed for having them empty, or having to pay big (But slightly less) taxes for renting them out, are going to do?
I’m fairly sure the current landlords sell the property for whatever they can get for it. Cause that seems like the logical thing to do.
If there actually is a literal shortage of funding for people to buy houses, that’s what government loans are for.
The reason we’re not taxing landlords in such a manner as to make them decide to not be landlords isn’t that it ‘wouldn’t work’, it’s that it _would_. It would low real estate prices.
And we have decided to build an entire economy where real estate is often literally the only investment that retirement-age people have, so we functionally _can’t_ do that.
In fact, that’s the reason we can’t fix any of this, why there is all this NIMBY-ism causing no one to be able to build cheap housing, or do anything to stop the skyrocketing housing prices, because fixing housing prices destroys the sole savings of millions of people who have their entire net worth tied up in housing.
Because, and this is key, we are complete and utter morons.Report
I’m more than sympathetic to someone who’s in genuine housing distress due to financial hardship, but they are hardly the people I’m going to loan money to buy a house.
2008 isn’t that long ago.Report
It’s worse than that, actually. If you can’t get a FHA loan, because the crawlspace was built before FHA loans, and thus is 1 cm too small, the house will NEVER sell to a first-time buyer (true story. Can you tell I love city living?)
Removing large parts of city-real-estate from use of any kind is a recipe for more Detroits, where we bulldoze houses that have not seen ANY maintenance (or use) in decades.Report
Go ahead and actually read the FHA loan requirements. They’re not just putting undue burden on the sellers (“Must have a new roof” territory — that’s $8,000), they also have a bunch of inflexible rules that make selling and buying old homes impossible.
Like the “mandatory size of crawlspace” issue. One inch too small, and you can’t get an FHA loan for that.
If you told most landlords they could no longer “rent,” they’d probably roll out some sort of “non-rent” like a nonprofit. Get in good with the local church, get the church to collect your rent, something like that.
Ban all group homes and other forms of “non-renting rent,” and you’ll get under-the-table deals. “Fifteen chinamen in a place zoned for 3 people” — with omerta to back it up.Report
One of them many reasons why removal proceedings are treated as civil offenses rather than criminal offenses is so that the federal government does not need to provide counsel for everybody in removal proceedings. Many immigration advocates believes that there should be a right to counsel in removal proceedings because of the stakes.Report
At least in my state, we need three times as many public defenders for Gideon-eligible charges as we have. As described in the linked article, nearly 300 cases of serious crimes have been dismissed as of December 2022 because the state can’t fulfill its Constitutional mandate to provide counsel to people who a) have been charged with serious crimes and therefore b) face serious prison time. Why this hasn’t outraged conservatives and victim’s rights groups to the point of torches and pitchforks is an absolute mystery to me.
If we make counsel necessary for evictions — and in a world with unlimited resources I’d say we should — that will create, effectively, a massive eviction moratorium. Which would be very good in the very short run for some renters, and then very quickly become very, very bad for everyone.Report
Yeah if we think we have a housing crisis now wait until we make renting unfeasible.Report
It’s already happening. Where do you live? I live, own rental property, and represent landlords in eviction cases in LA County. There’s a huge shortage of affordable rental housing, even worse than three years ago. Recent restrictions, coupled with free tenant attorneys, have made it prohibitively expensive to evict low-income tenants — even squatters, or even for criminal activity — and virtually impossible in some areas.
I’m telling clients that if you can’t afford to pay $20,000 to evict a bad tenant, don’t bother renting to a low-income person.Report
I live in Minneapolis so we’re a bright spot in the country for housing issues. The 2040 plan was a fine step forward for increasing density and allowing development. The public did pass a question authorizing rent control last election but the city council had the good sense to not actually put a rent control policy into place.Report
This is a dreary subject and I fear that the iron law applies viscously to tenancy and is not easy to resolve; the harder you make it to evict someone for misbehavior or non-payment then the harder it’ll be for everyone to rent an apartment and the more expensive it’ll be. There is no way to compel people to provide housing. Absolutely, dirtbag slumlords, dishonest landlords and malevolent rental companies exist; so do professional deadbeat tenants, destructive dirtbag tenants and system exploiting tenants.Report
There’s a huge difference between providing taxpayer-funded attorneys to fight the state — as in, criminal defense — and providing taxpayer-funded attorneys to one individual to fight another individual in a civil dispute.
If we provide free attorneys to tenants, why not free attorneys to people accused of domestic violence in restraining order proceedings? Let’s say every time an alleged victim seeks a restraining order, the defendant gets a free attorney to fight her. Same feeling?
When one side has to pay for legal process and the other doesn’t, you’re putting the paying party at a huge disadvantage. That’s not the way to encourage people to rent to low-income tenants.Report
I’m writing this in eviction court right now.
The first hearing I saw was an elderly landlord couple, unrepresented, facing a free tenant attorney. They just couldn’t grasp that it didn’t matter how bad the tenants were, how long they hadn’t paid for — the tenant gets five figures worth of free legal process for which they, the elderly landlords, will have to pay.
It used to be that landlords could have an eviction without an attorney. Those days are over. The days of ordinary people being able to manage a property themselves are over, too. They can’t understand and keep track of the many notice requirements and other legal requirements needed to win an eviction down the line.
This makes rental housing cost more.Report
Question for the eviction lawyer types:
Would tenants in general be better off with Housing Companies in charge of properties rather than Mom-and-Pop landlords?
We all know Orwell: “I found—one might expect it, perhaps—that the small landlords are usually the worst. It goes against the grain to say this, but one can see why it should be so. Ideally, the worst type of slum landlord is a fat wicked man, preferably a bishop, who is drawing an immense income from extortionate rents. Actually, it is a poor old woman who has invested her life’s savings in three slum houses, inhabits one of them, and tries to live on the rent of the other two—never, in consequence, having any money for repairs.”
Would we, as a society, be better off with having the companies in charge of this sort of thing and thus being able to mechanically take care of bad tenants and take care of the properties rather than mom-and-pops who can’t reliably take care of either?Report
Despite what I said earlier, I think we probably would be better off that way.
* ConHugeCo won’t consider it a personal relationship that you’re renting one of their apartments and will be less likely to convince themselves that you flushing a sack of cat litter down the toilet drain is a personal beef that’s their own fault, rather than childish behavior that should be punished.
* ConHugeCo will have the legal muscle to fight tenants who start in August and say that the local laws banning evictions during winter months means they don’t have to pay you rent from September to March, and then say that the local laws define anyone who’s been in the place for more than six months as a “long-term resident” who can’t be evicted without a complete legal review, which they can stretch out for another six months, and that’s why they’ll just be living in your place for a year rent-free (and at the end of the year they flush a sack of cat litter down the toilet.)Report
I don’t think it’s good for the tenants. I think the main problem with rental housing, from a tenant perspective, is high rent, not lack of major repairs.
And it’s the small landlords who tend to rent out the cheapest properties. They’re the ones less likely to take every rent increase possible (if only out of inattention), and the ones most likely to rent a room in their house, or an accessory dwelling unit. Corporations don’t provide those types of housing. Many low-income people can’t afford any better.
LA County recently enacted an ordinance (affecting the unincorporated areas) that provides that the second someone moves into your property — even a rented room in your house — and pays a dime of rent, you can’t change your mind about renting to them, without paying them about $20,000 in relocation money and hiring them a relocation consultant approved by the county. Even to sell the house; even because you’re sick of renting to them and want the room back; even because your elderly parent needs the room. And their lease can’t expire, ever. There is no contracting around this.
No sensible person, knowing that, would ever rent a room in their house. And there goes shared housing in unincorporated LA County.Report
I’m lukewarm to the idea of mandatory legal assistance for evictions, (as opposed to free legal assistance to indigent tenants for housing complaints).
But we should probably also note that “renters” is a class that includes virtually all businesses. Professional firms like lawyers and medical offices, banks, drugstores, restaurants, retail stores including blue chip firms like Twitter and Bank of America typically rent commercial space more than own their own properties.
And just as typically, when faced with being in arrears on rent, use every legal method possible to work the system and drag out the inevitable.
Also, in the business world, being 30-60-90 days behind on bills is probably more common than not.
A lot of the outrage over deadbeat tenants reminds me of that Bible story where a guy begs forgiveness for his debts, then threatens the guy who owes HIM money.Report
“There were 1176 people killed by police in 2022.”
“What about black on black crime?”Report
I think I have a comment that needs to be pulled out of purgatory.Report
Bueller, anybody?Report
Another case of a string put in the trash filter that matches harmless text. In this case, “in situations”. It would be nice if WordPress provided finer control of comment filtering, but it is what it is.Report
Thanks, I was wondering what it was. That comment seemed rather anodyne to trigger a moderation filter, but such is life I guess. At least I know one more character string to avoid.Report
I took it out of the list, there was another string that should block the commenter who was the actual target, so that particular problem is fixed. Also took out a string that would have made “lemmings” a forbidden word.
I am getting old. It’s kind of disturbing to think that my list of software I should write is long enough that I’m unlikely to finish it. Even after the kids and I find a good memory care place to move my wife to, which will free up time. Also two or three books that need to be written. When Death arrives to get me, I’ll be one of those people he has to drag away while I screech, “But I’m not done yet…”Report
What about it? And what about white-on-white crime, or Asian-on-Asian crime? People tend to kill their own kind because that’s who they most frequently interact with and get pissed off by.Report
Well, it’s a handy distraction away from the topic of police killings, isn’t it?Report
You brought it up, so you tell me.Report
I’m okay with dropping it and letting Chip get back to talking how he’d rather talk about bad corporations.Report
Pot v. Kettle. Pass the popcorn.Report
You know, the pot only thought the kettle was black because the pot was so shiny that it reflected the pot’s own blackness.
It really makes you think.Report
“What about it? And what about white-on-white crime, or Asian-on-Asian crime?”
you
uh
you know it wasn’t Jaybird who tried to drag the topic away to Those Other Guys Who Are REAL Assholes
like
he was responding to a comment thereReport
So?Report
He didn’t even respond to the fact that the comment he was responding to in the comment that was a response was, itself, a response.
He treated it like it were a standalone argument.
It’s kind of beautiful, really.
I will never be that happy.Report
Figuring out what, if anything, Jaybird means and what his point, if any, is takes up too much of the oxygen here. Should what Jaybird says be taken literally or seriously? Or maybe neither. But then it would be awfully quiet around here.
I have to take Jaybird at his word that what he said was intended as a swipe at Chip for not talking about what Jaybird had decided were the metes and bounds of relevant commentary to someone else’s post. That this swipe came from the site’s Threadjacker-in-Chief was simply delicious.
At least I learned that the commonly-accepted meaning of a common phrase deviates — as such things often do — from its earliest use. I leave to others who is the pot and who is the kettle as originally understood.Report
So which would *YOU* rather talk about, CJ?
How there are malicious tenants who make things worse for everyone?
How there are malicious landlords who make things worse for everyone?
Or would you rather talk about Jaybird?
Oh, I see.Report
I don’t tell people what they should or shouldn’t talk about. I see what they say and comment on it if it suits me. I’m not angling for that Hall Monitor job, and I don’t answer to those who are.Report
You can talk about whatever you want.
I assume that you do.Report
in the business world, on the other hand, businesses tend to have assets that they don’t want to lose when, in the end of a theoretical drawn out court process, they lose due to bad behavior as tenants. So there’s a whole class of deadbeat tenants in the residential world that don’t exist in the business world. Likewise no one gets indignant when a business is turned out on the street- you don’t weep for the poor medical office or the piteous drugstore that’s been turfed out.Report
This is true, and part of why I made the comment.
The political calculus changes a bit when the battle between landlord and renter is Mom & Pop Office Bldg LLC vs. Amazon Inc. as opposed to Greedy Rich Guy vs. Single Mom.Report
Not the version I grew up with. So, no, it doesn’t make me think. But since you say you’re OK with dropping it, I’ll say I believe you.Report
I knew about the poem (this isn’t the one that I was taught, this one dates back to the late 1800s though):
POT AND KETTLE.
“Oho!” said the pot to the kettle;
“You’re dirty and ugly and black!
Sure no one would think you were metal,
Except when you’re given a crack.”
“Not so! not so!” kettle said to the pot.
“’Tis your own dirty image you see ;
For I am so clean— without blemish or blot
That your blackness is mirrored in me.”
But if you agree that it’s worth calling out people who disingenuously pull the “let’s not talk about this thing that you’re talking about, let’s talk about this thing that I want to talk about!” thing as pulling the old pot calling the kettle black, I guess I’d have to say that I agree with you.
It *IS* worth calling out when someone disingenuously pulls that crap.Report