right to counsel

3 Anti-Market Victories for NYC Affordable Housing in 2017

Tenants and advocates had real success this year (ANHD)

Tenants and advocates had real success this year (ANHD)

For affordable housing advocates in New York City, 2017 was a sum-of-all-fears kind of year. The affordable housing crisis continues to touch all corners of the city (and America) leading to a shocking increase in homelessness, foreclosures, and rent burdens. The election of Donald Trump and the placement of Dr. Ben Carson at HUD have expedited the federal retreat from housing aid and removed the possibility of national solutions for affordable housing (and for helping NYCHA.) Finally, the squabbling of Mayor de Blasio and Governor Cuomo has nearly paralyzed efforts for reform and relief at the state level.

But it hasn’t been all doom and gloom. Largely through the tireless efforts of local tenants and advocates, the cause has seen several key victories at the city-level. 

Further more, these three victories show that even modest tweaks to the existing political and legal framework can lay the foundation for the type of profound change that we need to address the crisis at a structural level. Namely, we need to reject the market ideology that has caused the crisis and continues to exploit it.

1. Community Land Trusts have arrived as a powerful affordability tool

Any reader of this blog knows how important homeBody thinks community land trusts are to ensuring permanent affordable housing in the city. CLTs separate the value of the land from the value of the structure on it by placing the property in a trust, permanently removing it from speculation. After many years of organizing by NYCCLI and New Economy Project, it finally seems that NYC gets it too.

In July, the Department of Housing and Preservation announced a request for information on CLTs for the first time and has partnered with Enterprise Community Partners NYC to offer $1.65 million for the formation of three new CLTs in the city: Interboro CLT, El Barrio, and a brand new coalition CLT through NYCCLI.

Just last week, the City Council passed a law recognizing CLTs in the city’s administrative code, which opens them up to working with city agencies on a more formal basis.

These are modest steps, but incredibly important ones in helping the model take off in the city. The fact that it has taken almost a decade for these measures to happen, shows what a slog it has been. But it also shows how quickly things are starting to happen.

Building off of Cooper Union (the first and longest tenured CLT in the city), the newest CLTs have a long way to go to grow, but the necessary roadmap, administrative tools, and advocacy groups now in place will help to do so.

The hope now is that other community organizations will become aware of the model and have the tools to go forward with their own CLT. I also hope that the city beings to think seriously about turning over city-owned land to CLTs or even forming a municipal land trust as quasi-public housing.

Either way, introducing a model that removes speculation on land values in the city is a major win for affordable housing and sustainable communities.

2. Right-to-Counsel will prevent evictions and reshape housing court

In August, the city radically reshaped its housing court structure by becoming the first city in the US to guarantee legal representation for low-income tenants in eviction fights. For a relatively modest $155 million over 5 years in legal aid, tenants that were previously outgunned in housing court now have a greater chance of avoiding eviction altogether. As of 2015, 90% of landlords had legal representation, while only 10% of tenants did. This rebalancing will have a profound impact on the cost to families facing homelessness.

With the homeless population now exceeding 60,000 people in NYC, keeping families in their current homes also becomes the most important homeless policy tool for the city. Right-to-counsel will reduce the cost of providing homeless services by an estimated $320 million and will hopefully alleviate some of the political pressure associated with homeless shelters and clustering that is crippling the city’s ability to meet the sadly growing homeless population. Keeping families in homes is the key.

The larger hope with this move is to alleviate the equally crippling pressure on the housing court division. There were over 350,00 filings last year for only 50 judges. This backlog locks thousands of landlords and tenants in slow proceedings that ultimately undermine the ability for the city to ensure transparency and accountability. The rule of law is only as good as a government’s ability to enforce it and creating more balance on the tenant side will hopefully recalibrate this dynamic for the better.

3. No Harassment Certification is a small step towards decommodifying housing

The other big development on enforcement occurred at the end of November, when the City Council passed the Certificate of No Harassment (CONH) legislation, largely through the efforts of ANHD. This law, along with the larger Stand for Tenant Safety package also passed this year, aims to stop the common and pernicious practice of landlords harassing rent-regulated tenants out of their units in order to increase profits.

With the skyrocketing value of property across every borough, there is large incentive for speculators to buy a building and force out rent-regulated tenants. The goal in many cases is to either demolish a building or increase the rent-roll in order to flip it. This practice has been difficult for tenants and the city to prevent.

The CONH is intended to disincentivize this speculation by putting the pressure on landlords to prove that they are not harassing tenants. Buildings that fall into certain categories of risk (related to speculation) must receive this certificate if they are to begin construction projects or otherwise impact the quality of life of existing tenants.

It is ultimately still just a speed bump rather than a roadblock against speculation, but it shows that tenants and advocates fighting back against more powerful financial interests can win. Removing the worst actors from the housing market by raising the risk and cost of harassment is a necessary first step in radically reforming the property landscape in NYC.

 

I don’t want to suggest that these three events were the only “victories.” There are other events this year that I could have spoken about, such as Mayor de Blasio’s Housing 2.0 plan for his second term, or Governor Cuomo’s new housing budget.

However, I chose them because these three items speak to the larger hope that we can reduce the suppressive power that “the market” has over our housing discussions. Market solutions have their place in any affordable housing policy discussion but only after we reposition the basic premise of housing as a basic right.

Speculation destroys cities by devouring neighborhoods and dehumanizing housing. It really is that simple. Treating housing as an asset-first policy has led us to the affordable housing crisis and has scarred many communities in NYC, perhaps permanently.

If enough people force the discussion on housing to return it to shelter-first, we absolutely can find practical and lasting solutions to the affordable housing crisis. As many tenants and advocates have shown this year, it is also absolutely possible.

The Bigger Problem: Why Didn't Tenants Have Right to Counsel in First Place?

Long wait for justice (NYT)

Long wait for justice (NYT)

 

Recently, housing advocates celebrated the announcement that New York City will provide free legal counsel to low-income tenants in housing court. This relatively inexpensive program will undoubtedly improve the lives of many vulnerable New Yorkers by reducing the risk of eviction.  But why didn’t these tenants have access to legal representation in the first place?  Therein lies the bigger housing problem with our legal system and our country.

The obvious place to start is the difference between criminal and civil court in the US.  The 6th Amendment guarantees the right to counsel in all criminal proceedings (although surprisingly it wasn’t expressly outlined by the Supreme Court until 1963).  Anytime the state brings charges against you, you are guaranteed fair, conflict-free legal counsel through the public defender system (though some are cared for more than others.)

However, unlike most western democracies, you are not guaranteed the right to counsel in civil court in the US.  There are some exceptions to this - if there are concerns over due process or if the case risks your personal liberty.  This narrow view is partially based on Lassiter v Dept. Social Services in 1981.  It’s an utterly heart-breaking case and I strongly recommend you read this article about it to understand the sexist and racist assumptions that went into the broader argument against providing counsel for civil cases.

In New York City, the Housing Court (which was formalized as its own branch of the civil court system in 1973) sees 350,000 filings a year with just 50 judges. That makes for a painfully slow process that favors those who can afford lawyers who are familiar with its pace and process (and who can afford to take that long).  As of 2015, 90% of landlords had legal representation and only 10% of tenants did.

Now, ask any landlord and they will tell you its exceedingly difficult to evict a tenant in New York (which is absolutely true, certainly relative to other states) but with such a discrepancy between representation, it’s clear that tenants don’t have the same access to due process.  It’s also a substantially different circumstance when your home is at stake vs. part of an investment. 

It’s not hard to see why this is a problem.  According to the Coalition for the Homeless, eviction is the number one cause of homelessness for women and children in the city, who represent over 75% of shelter system residents (about 48,000 out of 62,000 people).  The right to counsel will have a profound impact on this particularly vulnerable population.

But why did it take this long to address? Because we don’t think of housing as a right.  Or, put another way, we don’t think the loss of a home is the same as loss of personal liberty

And therein lies the problem with our civil legal system (putting aside how unacceptably overworked and underfunded that system is) and our broader society.  Who defines personal liberty? Would a mother with several children consider herself free if she is homeless? Is she not deprived of her personal liberty and her children’s? Not being able to afford a home is not the same as choosing not to have one.

Courts have generally shown concern about the ‘slippery slope’ of where to draw the line on personal liberty.   That’s reasonable and one that the courts ultimately shouldn’t have to decide.  We should.  The right to counsel to prevent evictions is a wonderful start, but we must go further as a society.  We must decide that housing is a right.

To be clear, I don’t mean to suggest that it is the landlord’s obligation to provide that right.  There are malevolent landlords out there for sure, but there are also many more that are trying to make ends meet just like everybody else.  We can’t simply put the burden of providing free housing on landlords or demonize them when they are trying to get a return from their property.

We must think bigger. Adopting housing as a right as an organizing principle would have several major policy implications to do just that.

First, at the local level it would have a liberating effect on the stifling status quo of our current rent, occupancy, zoning, and property tax laws that collectively play a large role in the affordable housing crisis.  It would spur significant innovation around these regulations that would likely provide gains for all stakeholders.

Second, it could fix the federal government’s wasteful role in housing.  For too long, and at far too high a cost, the federal government has supported homeownership exclusively.  This choice has caused generations of systemic segregation, degraded our environment and civic life, and nearly destroyed our economy.  Building more types of housing in more kinds of communities for more types of people could arguably create a sustainable, equitable economic boom the likes of which we haven’t experienced in decades, if ever.

Finally, it could also potentially lead to a cultural reboot; something that Americans of all political identities appear to agree is needed.  For too many people, it’s not clear today what America’s role in the world is or will be.  It isn’t clear that our system is producing the type of peace and prosperity we’ve come to expect - or that it’s capable of fixing itself in order to do so.  It isn’t clear what America is. Let’s fix that.

Let’s start by getting back to basics. What is “life, liberty, and the pursuit of happiness’? Is it merely positive liberty (the freedom to do something) or is it also negative liberty (the freedom from something)?  How can you pursue happiness, liberty, or life without a place to call home?

We’ve always been our best when we’ve used our noble ideals to defend the vulnerable and innocent from the violent injustices of the world, here and abroad.  Surly we can address the housing needs of millions of Americans.  In the process, we can rediscover the ideals that have made us such a beacon for the rest of the world.