Power and Possibility in the Era of Right to Counsel, Robust Rent Laws & Covid-19

Georgetown Journal on Poverty Law and Policy

Volume XXVIII, Number 2, Winter 2021

117

ARTICLES

Power and Possibility in the Era of Right to

Counsel, Robust Rent Laws & COVID-19

Erica Braudy* and Kim Hawkins

New York City (NYC) finds itself in an unprecedented housing crisis as the

coronavirus (COVID-19) pandemic reveals with devastating force that safe,

sustainable and affordable housing is both a human right and a public health

necessity. The profound humanitarian and economic devastation of COVID-19

puts millions of New Yorkers at risk of eviction—especially those within Black

and Latinx communities. In addition, the pandemic hit just as the legal

landscape for tenants was transformed through landmark legislation ensuring

the Right to Counsel in eviction proceedings and sweeping reforms of New

York’s rent laws. The unparalleled COVID-19 pandemic, the influx of

hundreds of new tenant attorneys resulting from the Right to Counsel, and the

robust rent law reforms fundamentally alter the role and powerful potential of

housing advocacy and the very function of NYC’s Housing Court. These three

forces provide an opportunity for housing attorneys representing low-income

tenants to imagine new and creative ways to provide housing security and build

tenant power.

This Article canvasses the fundamental shifts in the NYC housing

landscape and the movement to expand tenants’ rights. It urges lawmakers to

take bold action to avoid an eviction pandemic and shield tenants from

homelessness and crushing debt. Next, it lays a blueprint for housing attorneys,

both experienced and novice, to aggressively use the new tenant-friendly rent

laws, creatively maximize underused tools, and leverage their collective

strength to re-envision housing as a human right. The combination of the Right

to Counsel, which has filled the ranks with passionate tenant attorneys, an

empowered and progressive state legislature, and a vibrant tenants’ movement

has created a powerful force to demand comprehensive and far-reaching

* Clinic Coordinator, New York Law School Housing Rights Clinic, Supervising Attorney in the

Housing Unit of a New York City legal services provider.

 Professor of Law, New York Law School, Stephen J. Ellmann Dean for Clinical and Experiential

Learning. The authors would like to thank Veronica Cook, Ed Josephson, and Andrew Scherer for their

thoughtful comments on earlier drafts. Thank you to Dean Anthony Crowell and Academic Dean William

P. LaPiana for summer research support. Thank you to Peggy Earisman, Roz Black, Marika Dias, Seth

Hoy, Yasmina Dardari, Chavette Jackson, Rajiv Jaswa, Stephanie Storke, Roni Druks, and Alessandra

Lacorazza. Thank you to Doni Gewirtzman and Rebecca Roiphe, and members of the Faculty Scholarship

Workshop at NYLS; Michele Gilman, Anika Singh, Patience Crowder, Heather Abraham, and Allyson

Gold from the New Clinical Writer’s workshop held at NYU School of Law; Victoria Borges King and the

wonderful team at the Georgetown Journal on Poverty Law & Policy. Finally, the authors thank Gabrielle

Hain for outstanding research assistance. © 2021, Erica Braudy and Kim Hawkins.

118 The Georgetown Journal on Poverty Law & Policy [Vol. XXVIII

housing and racial justice for all New Yorkers and redefine the housing world

that lies beyond the virus.

I. INTRODUCTION ............................................................................................... 119

II. THE PROBLEM: THE EVICTION CRISIS ........................................................... 120

A. New York’s Eviction Crisis ....................................................................... 123

B. The Impact of COVID-19 .......................................................................... 124

III. AN ARMY OF HOUSING RIGHTS ATTORNEYS: THE RIGHT TO COUNSEL ..... 129

A. Brief History of NYC’s Housing Court ..................................................... 130

B. The Right to Counsel ................................................................................. 132

IV. HISTORIC CHANGES TO THE RENT LAWS: HOUSING STABILITY AND

TENANT PROTECTION ACT (HSPTA) ................................................................ 134

V. THE FIERCE TENANT ATTORNEY: RE-ENVISIONING THE HOUSING

ATTORNEY’S ROLE AND AGGRESSIVELY USING UNDERUTILIZED TOOLS ........ 141

A. Address Systemic Racism .......................................................................... 141

B. Fight Landlord Neglect and Ensure Safe and Habitable Housing ........... 146

1. Prohibit Landlords from Collecting Rent if Documented Repair

Conditions Exist for More than Six Months. ...................................... 147

2. Put Non-Payment Cases on Hold Where a Landlord Refuses to Repair

Apartment. .......................................................................................... 148

3. Force Landlords to Repair Apartment Through an Affirmative HP

Case ..................................................................................................... 148

4. Organize Tenant Takeover of Buildings Effectively Abandoned by

Owners ................................................................................................ 149

C. Combat Tenant Harassment ..................................................................... 149

D. Challenge Unethical Behavior in Court with Sanctions ........................... 151

E. Hold Landlords Accountable for Failing to Act........................................ 151

VI. THINKING BIGGER: HOUSING AS A HUMAN RIGHT ..................................... 152

A. Cancel Rent ............................................................................................... 153

B. Expand Right to Counsel, Eviction Prevention & Access to

Affordable Housing ....................................................................................... 154

C. Invest in Community Land Initiatives & End Apartment

Warehousing .................................................................................................. 155

D. Abolish Summary Proceedings & Possessory Judgments in

Housing Court ............................................................................................... 156

E. Reimagine Housing as a Human Right ..................................................... 157

VII. CONCLUSION ............................................................................................... 158

N

o. 2] Power and Possibility in the Era of Right to Counsel 11

9

I. INTRODUCTION

New York City stands at a crossroads. In the face of a public health crisis, it

has the opportunity to be bold and unrelenting in its provision of justice for low-

income tenants. After decades of tenant organizing, in 2017, NYC became the firs t

jurisdiction in the country to provide a Right to Counsel for tenants facing

eviction.1 This was a watershed moment for tenants and resulted in the hiring of a

new army of tenant attorneys.2 In June 2019, the New York State (NYS) legislature

passed historic legislation extending and broadening rent laws, increasing tenant

protections and providing housing lawyers new avenues to fight for tenants’

rights. 3 March 2020 brought the destabilizing and dangerous COVID-19

pandemic, a public health and economic crisis of still-unfolding epic proportions.4

Armed with new tools, housing attorneys must continue to combat a reality

where tens of thousands of New Yorkers live paycheck to paycheck and lack safe

and affordable housing. The COVID-19 crisis has shown that safe, secure and

affordable housing is both a human right and a public health necessity—especially

in communities of color that have been hardest hit by the pandemic. Working

alongside a strong tenants’ movement, housing attorneys can push the newly

empowered state legislature to shift power and win the fight for tenant justice. This

moment invites many to reimagine housing in NYC, rethink how the system

functions, and shift the common understanding of real estate from an investment

for a rich few to a basic right for many.

This Article calls on New York City lawmakers to act boldly in the face of

uncertainty, think expansively and act creatively to guarantee all New Yorkers

secure and sustainable homes. The Article provides a blueprint for capitalizing on

the dual effects of an army of new tenant attorneys and new laws to advance the

legal rights of tenants. Part II locates these changes in the context of the eviction

crisis and the devastating effect of the COVID-19 pandemic on the lives and

livelihoods of low-income New Yorkers. Part III summarizes the history and

power of the Housing Court and traces the arc of the movement to secure the Right

to Counsel through tenant organizing and legislative action. Part IV charts the

historic changes in New York’s rent laws under the Housing Stability and Tenant

1. Mayor de Blasio Signs Legislation to Provide Low-Income New Yorkers with Access to Counsel

for Wrongful Evictions, THE OFFICIAL WEBSITE OF THE CITY OF N.Y. (Aug. 11, 2017),

https://www1.nyc.gov/office-of-the-mayor/news/547-17/mayor-de-blasio-signs-legislation-provide-low-

income-new-yorkers-access-counsel-for#/0.

2. See Abigail Savitch-Lew, City Tackles Roll-Out of Right to Counsel in Housing Court, CITY LIMITS

(Jan. 17, 2018), https://citylimits.org/2018/01/17/city-tackles-roll-out-of-right-to-counsel-in-housing-

court/ (“Legal Services NYC has expanded its housing units from about 50 to about 250 attorneys and

paralegals across the five boroughs over the past couple years”).

3. New Rights for Tenants: Housing Stability and Tenant Protection Act of 2019, LEGAL SERVICES

OF THE HUDSON VALLEY (Sept. 19, 2019), https://www.nysenate.gov/newsroom/articles/2019/new-rights-

tenants-housing-stability-and-tenant-protection-act-2019-

1#:~:text=%2D%20Starting%20in%20October%202019%2C%20landlords,help%E2%80%9D%20evicti

on%20is%20a%20crime.

4. See Coronavirus Disease 2019 (COVID-19), CTR. FOR DISEASE CONTROL AND PREVENTION (Feb.

6, 2021), https://www.cdc.gov/media/dpk/diseases-and-conditions/coronavirus/coronavirus-2020.html.