Ordinance would ensure tenant representation in eviction cases

Megan Creson: Right to counsel program could prolong cases where no dispute exists.

An ordinance proposed by Springfield City Councilmember Brandon Jenson would make Springfield the third city in the state to establish a tenants’ right to counsel program.

Advocates say the ability of a tenant to be represented by an attorney in court proceeding can cut down on evictions by landlords, but the president-elect of the Springfield Apartment and Housing Association – an attorney herself – believes it will drive up rental costs.

At its Feb. 24 meeting, council directed the draft ordinance to its Plans and Policies Committee for review.

In Kansas City, a similar program launched in June 2022 led to a drastic reduction in evictions.

Prior to the pandemic, 99% of cases filed in Jackson County resulted in evictions, according to a news release from officials with Kansas City. In the first three months of the right to counsel program, data indicated having a lawyer paired with rental assistance shows an eviction rate of less than 20%. Media reports indicate those trends are continuing as the program grows.

Springfield’s proposed right to counsel program would have the city pay to provide legal counsel to renters facing forced eviction. Jenson told Springfield Business Journal programs like this are usually offered at no cost to tenants, but there is also a possibility of a sliding-scale fee, depending upon what comes out of committee.

The draft of the measure says tenants would have the assistance of legal counsel from the time a property owner files suit until a case’s eventual final judgment or dismissal.

The measure also proposes that the city establish the position of a tenant legal services coordinator to oversee the program and to contract with legal and community service providers.

Jenson said the position would be equivalent to one full-time staff position, with compensation to be determined.

The program would also ensure availability of a legal representative at the Greene County Courthouse to inform tenants of their rights, including their right to counsel, Jenson said.

The ordinance would require property owners to notify all tenants of the existence of the program, and it would prohibit retaliation against tenants for using the program. Instances of retaliation would result in a $1,000 per day fine per covered individual.

A Tenants’ Right to Counsel Advisory Committee would be formed to provide recommendations to the coordinator, with one representative of the Springfield Apartment and Housing Association and six people who are tenants and not property owners within the city as voting members.

Exacerbating the problem
Megan Creson has reservations about the proposed measure.

Creson, an attorney and partner at Lowther Johnson Attorneys at Law LLC and the president-elect of the Springfield Apartment and Housing Association, said she files more than 100 evictions per month throughout the state, mostly in Greene County.

Creson said the money that would be channeled to the program would be better spent by providing resources to help tenants pay their rent. While the cost of Springfield’s proposed program has yet to be calculated, in Kansas City, local media reports city officials allocated $1.6 million to the right to counsel program for the 2023-2024 fiscal year.

The price of the program is a concern for Creson, who said the ordinance does not yet specify what would be funded and at what cost.

Creson also said the undesired result of the program could be to drive up housing costs in the Queen City.

A report by economists by MetroSight, doing research on behalf of the National Apartment Association and the National Multifamily Housing Council, states that right to counsel statutes and similar measures raised costs for landlords.

The report states, “They increased legal fees, extended eviction timelines and led to higher marketing, utility and salary expenses for multifamily owners and operators.”

Creson said for about 90% of the eviction cases she files, tenants readily admit to owing money to a landlord. A right to counsel program could result in extended litigation where no dispute exists. Missouri statutes intend for rent and possession proceedings to move quickly, according to Creson. Establishing a right to counsel even when there is no dispute could substantially slow the process, she said.

There is also a problem for tenants, Creson said, in that most lease agreements stipulate a landlord is entitled to recovery of court and attorney fees in the event of an eviction proceeding. That means tenants are responsible not just for back rent, but for additional legal costs – not their own, because these would be covered by the program, but their landlord’s.

“I’m concerned that what we’re going to see are delays resulting in higher costs and higher attorney fees for tenants,” she said.

As a result, she said, landlords faced with longer and more cumbersome eviction processes will likely respond by raising rent prices and require higher security deposits, and many will no longer rent to people they consider to be at higher risk, including those with lower credit scores, poor income-to-debt ratios and previous evictions. She said at present, many landlords remain willing to take a chance on renting to tenants with evictions on their records.

“It’s going to exacerbate the housing problem that this ordinance is trying to help,” she said.

Unlike Kansas City’s right to counsel program, the state’s second such program, in St. Louis, has gotten off to a rocky start, according to a December 2024 report by St. Louis Public Radio. The program was initially budgeted $285,000 from federal American Rescue Plan Act funds in 2023 by the city’s Board of Aldermen, who set a target of 1,125 cases for the first year with additional support of $1 million coming from the city’s general revenue. However, the program has so far allocated $685,000 for legal services through a contract with the Legal Services of Eastern Missouri, which plans to take on only 520 cases in its first two years.

There were 6,402 eviction cases filed in St. Louis in 2023, the report states.

Rental crisis
Jenson’s draft amendment offers a detailed rationale for the proposed right to counsel program, including some key data points:

• The Joint Center for Housing Studies at Harvard University reported in 2022 that 60% of all residents of the Springfield metropolitan statistical area are renters, and 48% of these are considered cost burdened, meaning they spend 30%-50% of their income on housing, and 22% are severely cost burdened, spending more than half of their income on housing.

• The 2023 City of Springfield Housing Study identified a deficit of 8,960 affordable and available rental units for households making 30% or less of area median income.

• 2018 data from Eviction Lab at Princeton University showed 2,400 evictions filed in Springfield each year, resulting in 1.8 families being evicted each day.

• The 31st Judicial Circuit’s 2024 data show 70% of property owners had legal representation in eviction cases, compared with only 10% of tenants.

• Data in a study by financial analysis firm Stout, which reports on right to counsel efforts, shows that for every dollar invested in tenant legal representation, jurisdictions save $3 in downstream interventions, like homeless shelters, public school interventions and law enforcement responses.

On Feb. 22, the housing advocacy organization Springfield Tenants Unite held a town hall meeting to promote a tenants’ right to counsel program. The event included a panel featuring representatives of agencies that serve people with housing needs, among them Emily Fessler of the Ozarks Alliance to End Homelessness and Vee Sanchez of Empower Missouri. People who had experienced eviction also offered their stories.

Paula Greene, senior attorney with the nonprofit Legal Services of Southern Missouri, said that regrettably, her organization has to turn away hundreds of people who apply for its services because of insufficient capacity to handle the need.

“Trying a case is hard,” she said. “There is a reason why every first-year law student in this country takes an entire class on the rules of civil procedures. … Don’t even get me started on the rules of evidence.”

Greene said it is unreasonable to expect lay people without that base of knowledge, and often without the same resources to attain it, to handle cases on their own.

Landlords who operate LLCs – and that’s most of them – are required by law to be represented by an attorney, she said.

“I have sat in court waiting for my case to be called, and I have watched people struggle to get their evidence in front of the judge – people who, from what I can glean, have meritorious defenses, but because they don’t know how to frame the question or their documents weren’t properly presented to the court, the judge had no choice but to disallow that evidence,” Greene said. “That meant their whole story didn’t even get to be told with a lawyer by their side.”

Having an attorney can make all the difference, Greene said.

“When a tenant has an attorney, it doesn’t give an unfair advantage to the tenant; what it does is it actually levels the playing field,” she said.

One-sided
Creson told SBJ that not all landlords are wealthy conglomerates. Sometimes they’re ordinary people who supplement their retirement accounts by renting out properties. Not all operate as LLCs, she said, although she recommends it.

With that said, margins are thin, even for those landlords with numerous properties.

“I do have a concern that this bill is a little one-sided,” Creson said, noting taxpayer money would be used to help tenants who do not have attorneys but doing nothing for landlords who lack representation.

Creson said she supports the work performed by Greene and her colleagues at Legal Services of Southern Missouri, especially when a tenant really needs an attorney, such as with an uninhabitability claim.

But, Creson said, the ordinance as drafted is providing everyone with a right to an attorney as if an eviction case were a criminal proceeding. In a criminal case, the burden of proof is beyond a reasonable doubt, she said, because life and liberty can be at stake.

With eviction proceedings, there is a much lower burden. Landlords merely have to demonstrate that rent is owed to prevail.

“I’m not sure it’s a good use of resources when there’s not a genuine dispute about rent being owed,” she said.

No timeline has been established for the City Council committee review of the measure.

Once reviewed and amended by the committee, the proposal will likely be introduced before council in the form of an ordinance with a regular procedure of a reading and public hearing and a subsequent vote.