House Passes Tenant Right to Counsel Proposal After Republican Objections

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A proposal to guarantee low-income tenants the right to counsel against retaliatory evictions passed out of the Maryland House of Delegates Thursday after fierce objections from Republicans.

House Bill 18, introduced by Del. Wanika T. Fisher (D-Prince George’s) would guarantee tenants a right to counsel in eviction cases if their household income isn’t greater than 50% of the state’s median. Tenants will qualify for counsel to defend against evictions involving retaliatory landlord actions, lead hazards and rent escrow actions, which can occur when a landlord doesn’t repair dangerous conditions in a rental unit.

Maryland law considers an eviction “retaliatory” if it is filed solely because of a tenant’s “good-faith complaint,” in reaction to a tenant lawsuit or because a tenant is a member or leader of “any tenants’ organization.”

“This bill provides a right to counsel to people who desperately need it,” House Judiciary Chairman Luke H. Clippinger (D-Baltimore City) said during floor debate over the bill Thursday. “To people who are seeing their homes overrun by rats, seeing their homes structurally falling apart, dealing with landlords who don’t pay the utilities they say they’re going to pay.”

Clippinger went on to say the bill is meant to target the few “bad apple” landlords who refuse to remove lead paint or make needed repairs to their rental properties. The proposal was sent to the Senate in a 95-42 vote Thursday.

The bill would require the Maryland Legal Services Corporation (MLSC), the state’s largest funder of civil legal aid, to administer the new right to counsel program. The MLSC is funded with surcharges on certain court filing fees and interest on lawyer trust accounts, and separate legislation proposed by Attorney General Brian E. Frosh (D) would drastically increase filing fees on evictions.

While the legislation has been hailed by advocates as a way to keep Marylanders from being unfairly evicted, House Republicans, some of whom own rental properties themselves, have criticized the proposal to guarantee low-income tenants representation as being unfair to landlords.

Del. Lauren Arikan (R-Harford) said she would sell her own rental property if the bill is enacted, and instead invest in a rental property in Pennsylvania. She said the right to counsel proposal and other tenant relief efforts will make being a landlord “untenable” in the state.

Several Republican amendments to the proposal were rejected in a Wednesday night floor session, including a proposal by Del. Matthew Morgan (R-St. Mary’s) that would’ve guaranteed a similar right to counsel for landlords with four units or fewer. Morgan argued the legislature hasn’t done enough to protect landlords with a small number of properties who’ve lost income during the pandemic, but his proposal was voted down after Democrats pointed to the bill’s limitations to retaliatory actions.

Morgan again slammed the bill Thursday, arguing it could drive up rent across the board due to increased costs for landlords.

“If it takes months to get a bad tenant out of your property, someone pays the bill for that,” Morgan said. “It raises the cost of housing for everyone.”

Del. Michael Griffith (R-Harford) echoed Morgan’s concern that court fee costs for landlords would be passed on to tenants, even if landlords don’t evict tenants. He said that, from a business perspective, a “possible expense must be planned for as a probable expense.”

Fisher, on the other hand, said helping people avoid eviction would save the state money in homeless and foster care services. She noted the right to counsel in the bill will only apply to tenants who meet strict income eligibility requirements.

“These are the most vulnerable people that are being evicted in our state,” she said.

A study of eviction cases in Baltimore by the Chicago-based consulting firm Stout last year found that tenants with legal representation are more likely to avoid eviction. But Stout also found that tenants overwhelmingly lack counsel in eviction cases: Stout found that while 96% of landlords had legal representation during studied eviction cases in Baltimore, just 1% of tenants did.

House Minority Whip Kathy Szeliga (R-Baltimore County) said that she’s been in rent court as a property owner, and challenged the 96% figure in the Stout study. She argued that many landlords use authorized agents, like property managers, to represent them in court rather than attorneys. Szeliga went on to say that evicting a tenant is already an expensive last resort for property owners.

Del. Samuel I. Rosenberg (D-Baltimore City) said in a rebuttal that the odds are currently stacked against tenants, who are unfamiliar with rent court proceedings. He said right to counsel legislation is “essential” to striking a fair balance in landlord-tenant proceedings.

Baltimore City became one of just a few jurisdictions nationwide to guarantee tenants a right to counsel in eviction cases last year. That local law will require the city’s Department of Housing and Community Development to contract with nonprofit legal services to represent tenants during eviction cases, and will be implemented over several years.

Baltimore Renters United, a tenant advocacy group, previously estimated that the law will cost the city $6.8 million to implement, but advocates say preventing evictions will save both the city and state money in the long run, to the tune of $35.6 million.

Matt Hill, an attorney with the Public Justice Center, lauded legislators for passing the right to counsel proposal. He said the bill’s passage in the House is a “big step forward,” and hopes the Senate will further expand the right to counsel.

Other rent relief proposals move forward

The House passed the cut-back version of a tenant relief proposal that would codify and extend current emergency protections for renters Wednesday. House Bill 1312, introduced by Del. Jheanelle K. Wilkins (D-Montgomery), will now head to the Senate – where advocates hope lawmakers will restore some of the proposal’s original relief provisions.

As passed by the House, the proposal would codify Lawrence J. Hogan Jr.’s (R) current emergency protections, which give tenants an affirmative defense in failure-to-pay rent cases, for the current pandemic and in future health emergencies. Wilkins’ proposal originally included a rent relief fund and additional restrictions on evictions, but those measures were cut by the House Judiciary Committee.

Advocates have criticized cuts to the bill, and warned that the proposal will allow tenant-holding-over actions, which can occur when a tenant remains on a property after a lease ends, to continue during the pandemic.

“This bill is simply allowing for a Governor Hogan-style affirmative defense, which requires tenants to come to court during an emergency to prove that they’ve had a substantial income loss, and that the income loss is related to the emergency,” Public Justice Center Attorney Zafar Shah previously told Maryland Matters.

Clippinger previously said that House Bill 104, another proposal passed by the House Wednesday, will remedy some of those tenant-holding-over concerns. That bill, introduced by Del. Vaughn Stewart (D-Montgomery), would require landlords to notify tenants about lease non-renewals earlier than the one-month notice currently required by most counties.

Delegates also advanced a proposal earlier this week to give judges more leeway over how long to temporarily stay an eviction, although a provision that would have mandated eviction diversion programs in counties with high eviction numbers was cut from that bill.

During a Thursday evening floor session, a proposal to increase eviction filing fees in Maryland, a measure that advocates and Democratic lawmakers hope will deter evictions, also passed.

House Bill 31, introduced by Clippinger, would bump up the maximum filing fee for summary ejectments in District Court eviction cases from the current $8 to $68. Clippinger said that will bring Maryland’s fees closer to the national average, and would help fund the Maryland Legal Services Corporation.

The legislation will also increase the maximum surcharge for civil cases filed in circuit courts from $55 to $85. It will also increase filing fees for cases other than summary ejectments in the state’s district courts from $18 to $28.

Clippinger noted that, if the bill is enacted, Maryland’s summary ejectments would still be well below the national average of roughly $125.

During debate, Republicans criticized the proposed fee increase, with Del. Christopher T. Adams (R-Lower Shore) calling it a “slap in the face” for landlords alongside other tenant relief proposals, and charged that lawmakers are only looking at housing through the lens of tenants.

Democrats said the amendment will put Maryland in line with surrounding states, and pointed out that the MLSC has seen a drastic funding cut due to the pandemic.

“It funds an incredibly important service that will make sure that we’re protecting Marylanders and making the judicial system work better,” Del. Brooke E. Lierman (D-Baltimore City) said.

The proposal passed in an 80-48 vote and moves on to the Senate.

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Editor’s Note: This story was updated to include a vote on a bill to increase eviction filing fees, which passed the House on Thursday night. The story was also updated to provide Del. Chris Adams’ correct party affiliation.