Diffusing Landlord/Tenant Tension
Across the U.S., courts have begun to address landlord/tenant or eviction cases in a more systemic way. While some reforms were underway pre-pandemic, the recent housing crisis is pushing innovations, including new partnerships and stakeholder engagement.
Tennessee’s Uniform Residential Landlord and Tenant Act (URLTA), like many residential rental statutes, was enacted with remedies that seemingly addressed some of the problems tenants face when landlords fail to keep their units in proper repair. There was reason to believe things would improve, but unfortunately, improvements did not materialize.1 Tenants often withhold rent when faced with a rental unit that is unsatisfactory and end up on the street when this self-help remedy fails to hold up in court.
Similarly, landlords become frustrated when tenants withhold the rent and complain that they cannot fix a problem if they don’t get their rent moneys. It’s a never-ending cycle that seems to have no clear resolution.
This growing recognition of a long-standing problem, as highlighted by Matthew Desmond’s 2016 book, Evicted: Poverty and Profit in the American City, identifies eviction as a primary driver of long entrenched poverty, making things worse for families.2 Desmond contends that eviction is part of some landlords’ business model, asserting that it’s more efficient to evict families instead of maintaining the property. Desmond further states that without stable decent housing (for families and children) everything else falls apart — workers lose jobs, children lose friends and schools, judgments prevent families from being able to secure substitute housing, credit scores sink and for many tenants this cascading litany of woes seems to never stop.
Stopping the Eviction Cycle
The increasingly difficult issue of housing stability and the cycle of poverty, disrupted lives and the policies that keep individuals and their families in despair has many root causes, but not many real answers. An April 2021 study conducted by the Urban Institute’s Housing Crisis Research Collaborative took a comprehensive look at some of the policies, programs and strategies enacted across the United States.3
The study collected data on 47 state and local programs across the country that fit our definition of eviction prevention and diversion programs. We coded each program based on the features we could identify from desk research and analyzed these data for broad trends. We also interviewed program administrators and partners involved in four state and local programs, selected based on their diverse features, to understand how these programs are designed, how they work and how their features have changed over time, whom they serve, and how they reach clients and how they measure outcomes.
The study points out that high levels of eviction and housing instability are associated with poorer health outcomes, risks of depression, suicide, job loss and negative credit impacts as well as material hardship; these types of negative outcomes disproportionally affect children, youth and women of color.
The study also found that there were several stakeholders, including courts and legal services providers, that had already begun developing eviction prevention and diversion programs in their communities before the start of the COVID-19 pandemic, identifying 47 different programs, 28 of which offer legal assistance in the form of pro bono attorneys or legal aid. Mediation was identified as a common approach and is often used in Tennessee courts.
The study outlines a series of “lessons learned”:
- The programs should address renters’ needs holistically, including having counselors and advocates assist with financial counseling and social service support.
- Landlords are key stakeholders in this space and should have a voice in finding solutions and be provided with incentives to participate in eviction prevention and diversion programs.
- Rental and other forms of financial assistance are essential.
- Programs should be designed to be flexible and adaptive to changing conditions.
- Outreach to tenants should take broader, more expansive and intentional approaches including but not limited to radio, utility notices and working with community-based organizations.
For some courts in Charleston and Austin, one way of dealing with this never-ending cycle has been the creation of housing courts or special eviction or detainer dockets. These court-based programs benefit from the engagement of attorney volunteers.4 In one case, the difference in having an attorney involved in the case meant that a veteran was able to keep her rental unit; she had lived in the unit for many years and greatly feared being displaced. Evictions often herald increasingly more serious problems and consequences for any individual and can have a spiraling effect for tenants; avoiding those eviction consequence is the highest priority. But having a lawyer represent a tenant leads to a considerably better chance that the tenant won’t be evicted and potentially avoids the negative consequences attendant with this type of action.
One key element that makes these types of programs successful is a judge who listens and considers the concerns of all parties, including the tenant. To be able to use volunteer attorneys, it’s also important that there is a legal aid or other entity that can help the volunteer by providing screening of the potential client, training for the volunteer and access to a “mentor” or other attorney to help guide them through the process and the law.
Recognizing the critical need to address systemic challenges in housing courts, the National Center for State Courts (NCSC) recently launched the Eviction Diversion Initiative, a four-year grant program offering funding and technical assistance to state and local courts to support eviction diversion programs and related court reform efforts. NCSC has created resources to support courts in creating new eviction diversion programs that use the court process to provide landlords and tenants with the time, information and resources to resolve housing problems in the least harmful way.5
The Judges Get Involved
Davidson County
One of the most innovative judges in Tennessee, Davidson County Judge Rachel L. Bell has long been recognized for her dedication to ensuring programs created by the court focus on meeting people where they are by restoring lives and connecting them with resources they need to find solutions to their problems. In 2019, after a visit to Red Hook Community Justice Center in Brooklyn, New York, Judge Bell started working with her Music City Community Court team to develop a Housing Resource Diversionary Court and Center. The pilot program was to start with Metro Department Housing Authority (MDHA) and its residents in rent arrearage who needed a pay and stay stipulation agreement. Several months of work went into developing the “OFF Docket/Settlement Sessions” and right before the pandemic, an agreement was made for MDHA to no longer file eviction actions. Instead, they would work with the tenant represented by Legal Aid Society of Middle Tennessee and the Cumberlands (LAS) to reach a settlement agreement. Those sessions are ongoing and take place every four to six weeks in partnership with the current “Right to Counsel” program that is in place.
During the COVID-19 pandemic in 2020, Judge Bell decided to pivot and create the L.E.G.A.C.Y. Housing Resource Diversionary Court (HRDC). In February 2021, at the unanimous decision of the General Sessions Court judges, HRDC received 1,800 pending detainer actions in Davidson County in efforts to assist landlords and tenants with a streamlined way to connect both parties to emergency rental assistance, particularly those whose income was affected directly by COVID-19 resulting in the inability to pay rent. Judge Bell initially ordered all cases to mediation using the Tennessee Supreme Court’s Alternative Dispute Resolution (ADR) Plan as developed by the Court’s ADR Commission Chair Steve Shields. Judge Bell’s first order of business was sending each pending case to free mediation services using the Nashville Conflict Resolution Center (NCRC) in hopes that the landlord and tenant matter would be resolved including rent assistance.
In March 2021, HRDC partnered with Metro Action Commission (MAC), which was designated by Nashville Mayor John Cooper to receive $20.8 million to disperse Emergency
Rental Assistance (ERA) funds to landlords on behalf of tenants whose income was affected directly by COVID-19, resulting in the inability to pay rent. From 2021 to present, HRDC’s partnerships continue to develop, including United Way’s Financial Assistance Network, comprised of several non-profits, churches and community organizations, the General Sessions Civil Court Clerk, MAC, LAS, NCRC and MDHA. Judge Bell shares, “Those amazing partnerships are a great demonstration of a coordinated and collaborative approach to housing security, setting a foundation for improved economic well-being for the residents in Nashville.”
In July 2021, HRDC received local and national attention during the second White House Eviction Prevention Convening.6 Judge Bell discussed best practices used in Nashville in efforts to prevent evictions and strategies from community and landlord engagement, and she shared that the most important aspect of HRDC is the ability to have housing/program navigators (HPNs) staffed for each eviction docket. Nashville has 11 General Sessions judges who rotate dockets each week. With those rotations, it’s extremely important to have consistency in the courts by offering landlords and tenants alternatives to eviction.HPNs’ collaboration with other internal and external eviction defense projects, as well as multi-organizational coalitions, ultimately connects tenants to the resources they need to avoid homelessness and related stabilizing measures.
As of March 2023, HRDC has worked with more than 3,500 participants and paid out over $18 million dollars to landlords in Davidson County to prevent evictions. The L.E.G.A.C.Y. HRDC also has a program in partnership with MDHA’s Envision Center, which assists tenants with developing financial literacy, budgeting, access to job readiness training, workforce development and employment assistance, and connects tenants to the community-based agencies that could assist them.7
Hamilton County
Further east, Judge Alex McVeagh and his four Hamilton County General Sessions Court colleagues were also paying attention to Shields’ ADR plan. In Chattanooga, much like the rest of Tennessee, palpable fear and uncertainty arose at the start of the pandemic as landlords lost rental income, tenants lost jobs and childcare, and federal relief efforts left many with questions. In response, nonprofit leaders, attorneys, landlords and judges began discussing solutions.
The Community Foundation of Greater Chattanooga (CFGC) and private attorney Emily O’Donnell worked to pilot the Eviction Prevention Initiative (EPI) by engaging and providing support to increase capacity at Legal Aid of East Tennessee for legal representation, Southern Adventist University for case management by social work graduate students, and flexible funds fundraised from private CFGC donors and disbursed through Chattanooga Neighborhood Enterprise (CNE).8
EPI’s initial focus was to decrease the number of evictions and to coordinate payments to landlords quickly to avoid a secondary pandemic-related foreclosure crisis. EPI attorneys worked in court to help litigants understand two different and complex detainer moratoria and to help landlords and tenants complete documents required to access relief funds. Once the moratoria were lifted, attorneys continued to connect landlords and tenants to relief funding, negotiate settlements and represent tenants in eviction court cases. After Chattanooga Mayor Tim Kelly allocated American Rescue Plan funds to increase EPI’s capacity, the program added an additional full-time Legal Aid attorney and paralegal, invested in data collection software and engaged Habitat for Humanity to employ full-time social workers to assist tenants with long-term, wrap-around services to increase their likelihood of housing stability. By elevating issues related to eviction and court processes, EPI gained additional support and partnerships, including the Pew Charitable Trust’s Civil Legal System Modernization Project, which identifies technologies, efficiencies and processes to improve outcomes and the experience of civil court litigants.
“Almost three years later, EPI attorneys have provided legal advice or representation to over 500 families,” says O’Donnell. “Nearly 400 families have avoided eviction through legal services and access to funding, and in the vast majority of cases where the client did have a judgment for possession, EPI lawyers helped the tenant negotiate a reduced judgment or additional time to move.”
In 2022 the Hamilton County General Sessions Court joined the previously mentioned National Center for State Courts Eviction Diversion Initiative (EDI). EDI, in partnership with the court and the city of Chattanooga, employs a full-time housing stability facilitator to voluntarily divert cases from the eviction docket, expand stakeholder collaboration, contribute to data collection and analysis efforts, and help policymakers find solutions to local housing issues. To date, EDI has engaged with approximately 70 tenants and 30 landlords and continues to hold information sessions across the community. “My court colleagues and I greatly appreciate the hard work of the Community Foundation and EPI and EDI staff, who regularly assist parties before and after an eviction lawsuit is filed,” states Judge McVeagh. “We are also excited about EDI’s long-term goal to work with local bar partners to establish a housing mediation program in Hamilton County that serves all parties.”
Finally, Hamilton County Mayor Weston Wamp’s office recently partnered with the court for an opportunity through Georgetown Law’s Judicial Innovation Fellowship to host a technologist focused on improving court capacity and access to justice. This fellow will work to audit and improve how Hamilton County courts and information technology departments share data to understand court patron experiences across the civil and criminal justice systems in an effort to break cycles of debt, criminal recidivism and homelessness.
Eviction prevention work in Hamilton County — initially a crisis-response effort — has now catalyzed long-term partnerships and opportunities to improve how residents in the Chattanooga area navigate the housing market and local court system. These efforts present a fresh opportunity for municipal coordination, efficient courts, critical data analysis, proactive affordable housing policies, alternative dispute resolution and increased economic stability.
For many of us, home is our safe place. It’s where we can relax, where our kids can do their homework, where we cook our food and live our lives. For Tennesseans who are poor or marginalized and pay 70-80% of their total income just for rent, a home is a luxury that has become increasingly less affordable or even available. According to the National Low Income Housing Coalition, the U.S. has a shortage of 7.3 million rental homes affordable and available to renters with extremely low incomes. Only 33 affordable and available rental homes exist for every 100 extremely low-income renter households. Extremely low-income renters face a shortage in every state and major metropolitan area. In 12 of the 50 largest metro areas in the country, the absolute shortage of affordable and available homes for extremely low-income renters exceeds 100,000 units.9
This lack of affordable and available housing has created an incredible negative impact perpetuating poverty. With energy and foresight, the members of the judiciary in Tennessee along with their community partners are working on innovative ways to alleviate this suffering and provide safe, decent and stable housing for those in need.
This article originally appeared in Volume 59, No. 3, May/June 2023 edition of the Tennessee Bar Journal.
Notes
- Tenn. Code Ann. § 66-28-101
- Matthew Desmond. Evicted: Poverty and Profit in the American City. 2017.
- Urban Institute. “Eviction Prevention and Diversion Programs: Early Lessons from the Pandemic.” Mark Treskon, Solomon Greene, Olivia Fiol, Anne Junod, April 2021. www.urban.org/research/publication/evictionprevention-and-diversion-programs-earlylessons-pandemic (updated May 2021).
- Dallas Morning News. “Legal representation increases Dallas tenants’ chances of avoiding eviction, study finds.” https://bit.ly/41IFY02 (last visited April 19, 2023).
- National Center for State Courts. “Eviction Diversion Initiative.” www.ncsc.org/consulting-and-research/areas-of-expertise/access-to-justice/eviction-resources/evictiondiversion-initiative-grant-program (last visited April 19, 2023).
- Second White House Eviction Prevention Convening. www.youtube.com/watch?v=AedcPrpqpUY (last visited April 19, 2023).
- L.E.G.A.C.Y. Housing Resource Diversionary Court (HRDC). https://bit.ly/3KNEtao (last visited April 19, 2023).
- Chattanooga Neighborhood Enterprise (CNE). www.cneinc.org (last visited April 19, 2023).
- National Low Income Housing Coalition. “The Gap: A Shortage of Affordable Homes.” March 2023. https://nlihc.org/gap (last visited April 19, 2023).
