THE LEGAL MINUTE
Essentially , an indigent and unrepresented tenant does not always have the resources or legal knowledge to prove damages in a common eviction case to overcome eviction or even obtain a just money damage amount7 for lost property . In the end , our tenant has lost their home , has lost personal property , has children suffering respiratory health problems , and now has an eviction record and money judgment against them for rent owed . There may be collateral consequences as well like the interruption of their children ’ s education when they move out of the school district to find new housing . Is this common outcome justice ?
A Just Solution to an Unjust Problem : Access to Counsel for Indigent Atlantans
Our hypothetical tenant is representative of almost all tenants in Atlanta and Fulton County . Less than one percent was the average percentage of tenants from 2016 to 2018 in Fulton County dispossessory cases that had attorney representation . 8 It is a disturbing statistic , especially when you consider landlords are frequently represented by attorneys in evictions . Knowledge of evidence rules , laws and legal principles , and access to witnesses are all frequently available to landlords in proving their claims through their attorney , but they are not equally available to unrepresented indigent tenants . This imbalance creates an unjust outcome .
Eviction data reflect disproportionate outcomes in favor of landlords and show indigent tenants in Atlanta desperately need access to counsel in Fulton County dispossessory court . In Fulton County , 9 which is composed of much of the City of Atlanta and other municipalities and unincorporated areas , an average of 107 eviction notices were filed each day in 2015 . 10 These filings represent 22 % of all rental households in the county . Many of these notices were dismissed for various or unknown reasons . However , of the completed cases in 2015 , 54 % of the tenants did not answer . Unless these cases were then dismissed by the landlord , this led to a default judgment in favor of the landlord . The remaining 46 % of tenants answered the eviction notice , but over half of these were deemed not to have raised a legal defense and were assigned to dispossessory court for a default judgment in favor of the landlord . It is difficult to determine how many of the 2015 filings resulted in actual evictions or tenants vacating their homes , but the Federal Reserve Bank of Atlanta estimates a 12.2 percent eviction rate for 2015 ( meaning 12.2 percent of all renter households were evicted or forced to vacate their homes ). The numbers reflect bleak outcomes for unrepresented tenants in Atlanta .
As a just solution , Atlanta City Council should pass legislation to provide and fund access to counsel for indigent tenants in the interest of justice like other cities have done already to create more just outcomes in eviction court . In fact , 86 % of tenants in the city of New York represented by attorneys funded by the city ’ s access to counsel program remained in their homes . 11 In San Francisco , that number is 67 % and in Cleveland it ’ s 93 %. 12 Beyond providing legal counsel to help indigent tenants get a fair day in court , an independent report commissioned by the New York Bar Association projected access to counsel would save New York $ 320 million annually through reducing shelter costs , avoiding the loss of affordable units , and preventing expenses associated with homelessness . 13 Atlanta stands to benefit similarly . Recently , the Atlanta City Council approved the city ’ s public defender office to help prevent evictions , but the measure does not go far enough , lacks proper funding , and is unclear how the process would work . 14 To ensure the city ’ s most vulnerable families have a fair shot at keeping their housing during a global pandemic , City Council should pass comprehensive legislation with adequate funding . __________________________________
1The author is a former housing staff attorney with Atlanta Volunteer Lawyers Foundation in the Standing with Our Neighbors Program . The program partners pro bono lawyers with schools and other community allies to focus on improving living conditions and housing stability in low-income neighborhoods – all to improve resident health , reduce school enrollment turnover , and enhance student attendance and performance . 2See O . C . G . A . § 44-7-51 ( b ).
3
See O . C . G . A . § 44-7-51 ( a ). This type of service permits a landlord to tack the filing to the residence and mail a copy on the same day to complete service . 4See O . C . G . A . § 44-7-51 ( c ) (“ If service is by posting a copy of the summons and the affidavit on the door of the premises and mailing a copy …, the court shall have jurisdiction to enter a default judgment for possession of the premises in the absence of an answer being filed ….”). After a default judgment , a landlord need only file a writ of possession to effectuate the eviction . 5See Dispossessory Answer Form , FULTON COUNTY MAGISTRATE COURT , https :// www . magistratefulton . org / DocumentCenter / View / 90 / Dispossessory-Answer- PDF ( listing as a defense “[ t ] he failure [ to repair the property ] has lowered its value or resulted in other damages more than the rent claimed ”) ( last updated Aug . 2017 ). 6Evidence of the purchase price / cost of the item is not sufficient to establish its fair market value for purposes of calculating damages . See Messmore v . Roth , 185 Ga . App . 862 ( 1988 ). 7It is possible the Court may award a nominal amount for damaged property . 8Civil Justice Initiative : Evaluation of a Demonstration Pilot Project of the Civil Justice Initiative , NATIONAL CENTER FOR STATE COURTS ( Dec . 20219 ), https :// www . ncsc . org /__ data / assets / pdf _ file / 0020 / 25481 / fcmc-cji-report . pdf . 9Eviction matters are handled by county courts and thus eviction data are countywide . However , the data are still helpful to understand evictions in Atlanta since an estimated 90 % of the City of Atlanta is within Fulton County .
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Housing Instability : Single-Family Evictions in One Atlanta Metro County , FEDERAL RESERVE BANK OF ATLANTA , https :// www . atlantafed . org / community-development / publications / partnersupdate / 2017 / 01 / 170216-housing-instability-singlefamily-evictions-in-one-atlanta-metro-county
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Universal Access to Legal Services : A Report on Year Four of Implementation in New York City , NEW YORK CITY HUMAN RESOURCES ADMINISTRATION ( Fall 2021 ), https :// www1 . nyc . gov / assets / hra / downloads / pdf / services / civiljustice / OCJ _ UA _ Annual _ Report _ 2021 . pdf
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Tenant Right to Counsel : Six Month Implementation Update to Land Use Committee , CITY AND COUNTY OF SAN FRANCISCO ( Feb . 24 , 2020 ), http :// civilrighttocounsel . org / uploaded _ files / 282 / San _ Francisco _ RTC _ 6 _ month _ data . pdf ; Right to Counsel Annual Report to Cleveland City Council , CLEVELAND MAYOR ’ S OFFICE ( Jan . 31 , 2021 ), https :// lasclev . org / wp-content / uploads / January-2021-report-on-initial- 6-months-of-Right-to-Counsel-Cleveland-high-res . pdf
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The Financial Cost and Benefits of Establishing a Right to Counsel in Eviction Proceedings Under Intro 214-A , STOUT RISIUS ROSS , INC . ( Mar . 16 , 2016 ), https :// www2 . nycbar . org / pdf / report / uploads / SRR _ Report _ Financial _ Cost _ and _ Benefits _ of _ Establishing _ a _ Right _ to _ Counsel _ in _ Eviction _ Proceedings . pdf
14
Sean Keenan , Can the City of Atlanta do more to prevent evictions ?, SAPORTAREPORT ( Jan . 27 , 2022 , 3:20PM ) https :// saportareport . com / can-thecity-of-atlanta-do-more-to-prevent-evictions / atla
ta-civic-circle / housing-affordability / seankeenan /
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