TENANT RIGHT TO COUNSEL (TRC)
All people, regardless of their circumstances or background, should have safe and stable housing — it’s a fundamental human right. Yet, too often, South Carolinians are faced with evictions that threaten their homes, their families, and their well-being. Even more often, people facing eviction are left to navigate that legal hurdle by themselves, without legal representation. This systematically sets up tenants to fail, forcing them to leave their homes and leaving them to deal with the devastating, long-lasting impacts of eviction.
In 2019, 99.7% of defendants in eviction cases in South Carolina were unrepresented.
South Carolina has an opportunity to level the playing field by securing the right to representation for eviction defense statewide. In 2019, 99.7% of defendants in eviction cases in South Carolina were unrepresented. This isn’t surprising, considering many renters are facing eviction because of unforeseen circumstances or financial stress that prevents them from being able to afford their rent, let alone hire counsel to represent them in court. Others facing eviction lack the ability to go to court due to employment, childcare, or transportation restrictions.
On top of this, any defenses that are available to a renter are virtually impossible to prove without legal representation. About 33 percent of renters feel so powerless to fight an eviction that they don't even show up for court, and instead, a default judgment is entered against them. This means they lose their housing even though there may be funding available to help with rent or they may have a valid defense against eviction. The harms of eviction also run deep — having an eviction on your record results in blacklisting, as many landlords will not even consider an applicant with a prior eviction filing, even if they won the case. Eviction records follow people for years, stigmatizing already vulnerable groups and blocking them from housing opportunities.
This is why representation in eviction cases matters: When renters are represented in court, they are twice as likely to remain housed. Securing renters’ right to representation in eviction proceedings is a critical step South Carolina legislators can take to stop evictions and keep people in their homes. Right to representation measures ensure that renters who are facing the complex process of an eviction proceeding are guaranteed legal representation — giving renters a fair chance to access legal protections and stay in their homes. Additionally, legal representation can help renters apply for rental assistance, ensure that courts do not proceed with an eviction while such applications are pending, and address situations where landlords refuse to accept the rental assistance. Providing a right to representation allows people and families to keep their homes and communities, and in the time of a pandemic, promotes public health.
THE CASE FOR A CIVIL RIGHT TO COUNSEL
In Gideon v. Wainwright, the United States Supreme Court held that the Sixth Amendment right to counsel requires the government to appoint counsel for indigent criminal defendants, at no cost to the defendant. Since Gideon, some advocates have called for Civil Gideon, or the right to counsel in civil cases. The intended scope for the national right to counsel movement is civil cases concerning basic human needs like housing, safety, and custody. The argument is simple. If someone is entitled to free legal representation when they are charged with even a minor crime that carries little to no prison time, they should also be entitled to legal representation when their housing or child could be taken from them. That’s why, alongside our advocacy partners, we are launching an advocacy campaign to take steps toward resolving this racial justice, gender justice, and human rights issue.
- South Carolina’s eviction rate is four times the national average. See Princeton’s Eviction Lab’s Map & Data.
- Two of the top ten evicting cities in the country are in South Carolina. See Princeton’s Eviction Lab’s Eviction Rankings.
PROPOSED SOUTH CAROLINA LEGISLATION
The following bills were prefiled in December 2020 following a statewide eviction tour to learn what solutions were having the greatest impact on reducing evictions in South Carolina:
- H. 3072 Provides tenant has the right to counsel in an eviction proceeding.
- H. 3073 Requires that a tenant and landlord engage in mediation.
- H. 3074 Provides tenant may apply to have an eviction order set aside and the court records sealed.
- H. 3132 Provides (a) Grants for landlord-tenant focused community courts; (b) SC Housing grants to local governments and nonprofit organizations to collect data; (c) SC Housing grants to local governments to establish certain crisis assistance programs; (d) SC Housing maintain a database; (e) SC Housing establish advisory committee on eviction research; (f) Comptroller General conduct eviction studies and send reports; (g) Provided this Article DOES NOT DENY landlords certain rights.
- H. 3373 Requires each county to establish a housing court.
PROPOSED FEDERAL LEGISLATION
- HB 3580 ("Eviction Prevention Act") - Provides federal funding for cities/states to expand tenant representation, with priority going to jurisdictions that have established a right to counsel for tenants facing eviction. Referred to Committee on Financial Services and Judiciary Committee on 5/28/21.
- SB 2234 ("Affordable HOME Act") - Creates federal funding for cities/states that enact a right to counsel for tenants facing eviction. Referred to Committee on Finance on 6/24/21.
TENANT RIGHT TO COUNSEL: ACCESS TO JUSTICE SOLUTIONS WORKING IN SOUTH CAROLINA
- Richland County – SC NAACP Housing Navigators Program
- Charleston County - Housing Court Pilot Project
- Greenville County – Upstate Mediation Center’s Civil Mediation
TENANT RIGHT TO COUNSEL IN OTHER STATES
- Connecticut – Task Force to Improve Access to Legal Counsel in Civil Matters
- Delaware - Delaware Right to Counsel for Eviction Defense Campaign
- Maryland – Renters United Maryland
- Washington – Office of Civil Legal Aid Eviction Resolution Program
TENANT RIGHT TO COUNSEL IN OTHER CITIES
- Baltimore, MD - Baltimore Renters United(enacted a Local Ordinance)
- Boulder, CO – No Eviction Without Representation
- Cleveland, OH – Housing Justice Alliance(enacted a Local Ordinance)
- Detroit, MI – United Community Housing Coalition
- Houston, TX – Eviction Defense Coalition - Right to Counsel Project
- Newark, NJ – Office of Tenant Legal Services (enacted a Local Ordinance)
- New York, NY – Right to Counsel NYC Coalition (enacted a Local Ordinance)
- Philadelphia, PA – Philly Tenant.Org - Philadelphia Eviction Prevention Project (enacted a Local Ordinance)
- San Francisco, CA – SF Right to Counsel Committee and Eviction Defense Collaborative (enacted a Local Ordinance)
- Washington, DC - Housing Right to Counsel Project
TENANT RIGHT TO COUNSEL – RESOURCE CENTER
- A compilation of resources related to the eviction process, housing instability, racial bias, the impacts and economic costs of eviction, and legislation and other resources related to a right to counsel for tenants facing eviction.
KNOW YOUR RIGHTS:
- SC Code of Laws - Residential Landlord and Tenant Act
- SC Bar - Rights and duties of landlords
- SC Bar - Rights and duties of tenants
- Community Assistance – Just Shelter provides a state-by-state listing of organization working hard to preserve affordable housing, prevent eviction, and reduce family homelessness.
- Emergency Rental Assistance - SC Stay Plus has been created to assist South Carolina households that are unable to pay rent and utilities due to the COVID-19 pandemic. It provides payments directly to landlords and utility companies on behalf of affected renters.
- Legal Assistance - South Carolina Legal Services provides free legal assistance in a wide variety of civil (non-criminal) legal matters to eligible low-income residents of South Carolina.
- Tenant Organizing Assistance – Right to Counsel NYC Coalition’s Campaign Toolkit is designed to both tell the story of how they won tenant right to counsel in New York City and offer templates for organizers in other cities to adapt, modify and improve on the victory.