THE LEGAL MINUTE the number of frivolous eviction filings by landlord attorneys who file illegitimate evictions because they do not anticipate an attorney challenging their filings . Let us look at a common landlord-tenant scenario , analyze how lack of counsel is a detriment to tenant cases , and then explore how access to counsel could create a more just outcome .
The Common Way a Leak Leads to Eviction
During my time as a legal aid staff attorney1 working on landlord-tenant matters , I saw a common scenario with a common unjust outcome . It begins with a tenant experiencing multiple leaks in their home , usually from a faulty HVAC system , busted pipes in the kitchen , or some other deficiency . The landlord , albeit delayed each time , manages to get a local handy worker to stop the leak , but without addressing the true cause of the leak . Each leak damages more of the tenant ’ s personal property like furniture , laptops and televisions , and clothing . Later , the tenant discovers what appears to be mold growing on walls in the home and underneath the carpet . Their children are also experiencing respiratory and congestion problems when they are home .
The landlord apologizes for the damaged property but refuses to compensate the tenant and denies mold remediation is necessary . The tenant , having lost over a thousand dollars in property and with their kids experiencing health issues , that they believe related to mold , are understandably upset . They must keep paying the full rent of the lease , but the landlord will not make adequate repairs , remediate mold , or restore any personal property . Here is where the tenant decides to withhold some or all of the rent until the landlord holds up their end of the lease agreement . In response , the landlord immediately files for eviction due to non-payment of rent .
Barriers to Justice When Fighting an Eviction without Counsel
If these tenants cannot afford an attorney , there are three immediate barriers to them and their children being able to stay in their home or even to receive compensation for lost property and suffered health decline : 1 ) raising timely legal defenses to eviction ; 2 ) presenting evidence of mold as a failure to repair counterclaim ; and 3 ) presenting evidence of property damage amount as a counterclaim for compensation .
Most tenants are unaware they have only seven days from the service date of an eviction filing to respond by filing a legal defense with the county magistrate court . 2 Because Georgia permits “ tack and mail ” service3 for dispossessory matters , this notice period can be shorter in practice if the eviction filing is tacked to the door on a Friday evening and the tenant is not home until Sunday evening to see the notice . It can be even shorter if something happens to the tacked notice before the tenant returns home and a mailed copy of the notice does not arrive until Monday or Tuesday . Failing to respond means the landlord automatically wins and the tenant can be evicted . 4
A tenant that does respond in time then faces the next hurdle of asserting a legal defense to eviction on the eviction answer form . The form can be confusing to many and not understandable at all to illiterate tenants . It is not a legal defense if the tenant simply feels they should not have to pay full rent . However , it is a legal defense if the tenant has counterclaims for diminished value of the rented property and damages that exceed the claim for rent owed stemming from the landlord ’ s notice of and failure to adequately repair the home ’ s frequent leaks . 5 Again , failing to assert a legal defense means the landlord automatically wins and the tenant can be evicted .
Let us assume this renter manages to assert the right defenses and counterclaims to get an eviction hearing to prove their case and avoid eviction . Any proof that the suspected substance in the home is mold that lowered the home ’ s value ( i . e ., shows the tenant should be paying little to no rent ) and any proof that the value of damages to personal property exceeds the rent owed require expert reports and testimony . Mold tests can cost $ 400 or more , and thus an indigent tenant cannot afford to pay for
“ 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 .”
one . If a test is completed and verifies the presence of mold , the verification is in the form of a complex report that requires a mold expert ’ s testimony as to the meaning of the report .
As for the property damage , tenants have to show the current market value of damaged property . 6 A tenant ’ s recollection of the purchase price or receipts of property value at the time of purchase cannot establish this . Additional evidence is needed and often the best evidence to get adequate compensation is property valuation experts conducting a current market value analysis and providing testimony of how they arrived at that amount . Proving both mold damage and property damage often requires a tenant that can get an expert to appear in court and then conduct a direct examination that can overcome any Daubert objections from a landlord ’ s attorney . This is next to impossible for a pro se tenant , and I have yet to see it happen .
( continued on page 19 )
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