In Stacy Roller’s Nov. 30 op-ed entitled, “Time to Reform Massachusetts Housing Courts,” she likened Housing Courts to the “Wild West” and compared eviction cases to a game.
The mother of five who is going to court facing the harsh reality that she might have to relocate her entire family to an emergency shelter that could be on the other side of the state does not think of her court case as a game. The veteran who might lose his voucher does not think of his court case as a game. The disabled elder who got behind on his rent in his apartment of 30 years and who could be homeless at the end of the month does not think his court case is a game.
Housing Courts are not as “pro-tenant” as Ms. Roller seems to think. According to the Access to Attorneys Committee of the Access to Justice Commission, the judgment rate in eviction cases (including both District Court and Housing Court) is 98 percent in favor of landlords. Ninety-eight percent. This means that only two percent of judgments in housing cases result in judgment in favor of the tenant.
There are currently lawyers involved in eviction cases but by and large they don’t represent the tenants. Statistics reflect that statewide 70.2 percent of landlords are represented by attorneys. In contrast only 7.6 percent of tenants have legal representation. Is this fair? In Housing Court, there is a slightly greater chance that a tenant will have legal representation because of the “Lawyer for a Day Program.”
However, programs like these lack the resources to represent more than a small percentage of tenants with meritorious defenses to eviction. Unlike most criminal cases, there is currently no “right to counsel” in eviction. This means that while Massachusetts does have strong laws protecting residential tenants — against illegal retaliation, discrimination, sanitary code violations and the like — most tenants are left unable to enforce those rights simply because they don’t have a lawyer. Instead, many such tenants feel pressured to sign “move-out” agreements on the first day they come to court.
The Housing Court is a better forum for eviction disputes for several reasons. Filing fees are less expensive in Housing Court than in District Court. The Housing Court also has trained housing specialists available for mediation, and judges perhaps better-versed in summary process law because that is what they do day in and day out.
For tenants with disabilities, social workers are available through the Housing Court’s Tenancy Preservation Program. The Housing Court is available all across the state, although it might be farther away for some. For instance, landlords and tenants alike in Lynn have access to Housing Court but the Housing Court is now located in Salem, not Lynn. Anyone can access the Housing Court if they are able to find the transportation to go there.
Ms. Roller is correct that changes are needed. Having the Housing Court available to all is one change that has actually already taken place: statewide expansion took effect in July 2017. Implementation is ongoing. Five new judges were appointed. New sittings are being established. But despite this — there is still a great disparity between the number of landlords and tenants who are unrepresented. A staggering number of tenants lose their cases simply because they could not acquire the child care, transportation, or time off to go to court.
This has only been more challenging for Lynn tenants who now have to make their way to Salem to access Housing Court. Landlords and tenants alike are unaware of how the eviction process works. One positive change would be for the first court date, or an evening prior to that date — to involve an informational video about rights and responsibilities of tenants and landlords. Tenants should be more clearly informed on court papers of their right to file an Answer and request information from the landlord before their court date, forms for which are available online.
Another positive change would be expansion of the right to counsel for tenants with meritorious defenses to eviction, and expanded use of “limited assistance representation” for both landlords and tenants of modest means to access affordable legal counsel. And a very simple change: litigants, not just attorneys, should be able to bring their phones into court — not have to drop them off at a donut shop or stash them in shrubbery if they don’t have a car.
Molly Victoria Lovell is an AmeriCorps attorney at Northeast Legal Aid. She visits the Lynn Session of the Northeast Housing Court on a weekly basis.