Beyond Reducing Rental Debt: ERAP Programs Can Support Right to Counsel

By Jessi Russell

In past COVID-19 relief legislation, the federal government provided $46 billion for states and localities to establish Emergency Rental Assistance Programs (ERAPs). But since the program’s launch last year, just 11 percent of funds have been distributed. These delays are devastating for the over 3.5 million households who worry they’ll be evicted within the next two months. To help tenants stay in their homes, local and federal policymakers must advance effective solutions like right-to-counsel programs, which ERAP funds can support. Such programs help tenants secure representation to fight evictions, a step toward equity that many local governments have shown can reduce housing instability and save money for communities.

Because of the U.S. Supreme Court’s decision to end the federal eviction moratorium, anyone who is behind on rent, or has otherwise violated the terms of their lease, can be evicted unless they are protected under local or state eviction moratoria. Currently, as few as six states and four counties/cities have an active ban of evictions, with most set to expire before or during October 2021. The U.S. Center for Disease Control and Prevention’s (CDC) federal moratorium prevented at least 1.55 million evictions across the United States—that’s less than half of all evictions filed on average before the pandemic.

However, evictions still happened under the moratorium. The Eviction Lab at Princeton University found that property managers and landlords continued to target Black women at the same rates as pre-pandemic, meaning that the underlying racial and gender disparities in eviction rates persisted despite the federal protections. In contrast, filings were below 12 percent of the historical average in cities where the governments adopted stronger local moratoria like in Austin, TX. As another example, local leaders in Philadelphia, PA reduced filing rates by requiring landlords to apply for emergency rental assistance and participate in a new diversion program before they were legally allowed to file an eviction. By developing a pathway for tenants and landlords to resolve disputes outside of court, the city kept eviction filings at a historical low between September 2020 and July 2021.

It’s time to act imaginatively and embrace policy changes that tenant organizers and housing justice advocates have championed for decades—solutions that acknowledge the inexcusable reality: people have been and will continue to be evicted. ERAP alone will not prevent these evictions. We need stronger protections for tenants that extend far beyond the pandemic and disrupt the systemic power that property managers and landlords wield throughout the eviction process.

The legislation authorizing ERAP allows up to 10 percent of the $46 billion in federal funding to be spent on “housing stability services.” U.S. Treasury Department guidance has defined such services to include  those that “enable eligible households to maintain or obtain housing” such as “attorney’s fees related to eviction proceedings.” In other words, ERAP dollars can be used to launch right-to-counsel programs that aim to guarantee legal representation to tenants who have had an eviction filed against them—effectively creating a new civil right for people who qualify.

In the courts, eviction proceedings favor the party that can afford a lawyer. Approximately 90 percent of property managers or landlords are represented by legal counsel in evictions, compared to fewer than 10 percent of tenants. Aware of this imbalance, landlords are incentivized to file unjustified evictions, especially in cities and states without just cause eviction laws.

In total, seven cities have already enacted a right-to-counsel and eight states are considering legislation this year—all thanks to the labor of tenant organizers. Policymakers in Louisville, KY actually allocated $400,000 in federal ERAP funding to a establish citywide right-to-counsel program. The program will run for at least one year. Although temporary, the infusion of federal dollars has helped advocates fight claims that the city didn’t have enough money to stand up a program, let alone create a new civil right. Now, organizers and advocates can document the program’s impact and argue for its permanency, as well as widened eligibility.

There have been several city-specific studies analyzing how much money local governments save by investing in a right-to-counsel program. But the effect that these programs have on eligible tenants is by far the most important statistic. In San Francisco, CA, the eviction filing rate decreased by 10 percent between 2018 and 2019, and of those receiving full representation, 67 percent stayed in their homes. In Baltimore, MD, researchers estimated that 92 percent of represented tenants—roughly 5,700 households and 17,300 people each year—would avoid displacement once that city  implemented a right-to-counsel program. Additionally, tenant attorneys can help eligible households apply for rental assistance, ensure that courts do not proceed while ERAP applications are pending, and address situations where landlords refuse to accept relief.

State, county, and city administrators and elected officials must leverage the Biden Administration’s recent guidance and use ERAP dollars to launch right-to-counsel programs, invest in court navigators or diversion programs, and further strengthen tenant protections. Just paying down rental debt is not enough to stop property managers and landlords from displacing millions of people from their homes.