All people, regardless of their circumstances or background, should have safe and stable housing — it’s a fundamental human right.
Yet, too often, Delawareans are faced with situations of eviction that threaten their homes, their families, and their well-being. Even more often, people facing eviction are left to navigate that legal hurdle by themselves, without official counsel or legal assistance in a system that’s designed to protect landlords, not the tenants who rely on them for a safe, secure place to live.
Delaware has an opportunity to level the playing field by securing the right to counsel for eviction defense statewide.
In Delaware, 86% of landlords have representation from attorneys or agents in court, but only 2% of tenants have representation.
This isn’t surprising, considering many tenants are facing eviction because of unforeseen circumstances or financial stress that prevents them from being able to afford their rent, let alone hire counsel to represent them in court. Others facing eviction lack the ability to go to court due to employment, child care, or transportation restrictions.
On top of this, tenants have few options for legal aid programs, and legal aid programs have always been underfunded. Any defenses that are available to a tenant are virtually impossible to prove without the aid of a lawyer.
About 33 percent of tenants feel so powerless to fight an eviction that they don't even show up for court, and instead, a default judgment is entered against them. This means they lose their housing even though there may be funding available to help with rent or they may have a valid defense against eviction.
This is why representation in eviction cases matters: When tenants are represented by counsel, they are twice as likely to remain housed.
Securing tenants’ right to counsel is a critical step Delaware legislators can take to stop evictions and keep people in their homes during the pandemic and beyond. Right to counsel measures ensure that tenants who are facing the complex process of an eviction proceeding are guaranteed legal representation — giving tenants a fair chance to access legal protections and stay in their homes.
Additionally, attorneys can help tenants apply for rental assistance, ensure that courts do not proceed with an eviction while such applications are pending, and address situations where landlords refuse to accept the rental assistance.
Providing a right to counsel allows people and families to keep their homes and communities, and in the time of a pandemic, promotes public health. That’s why, alongside our advocacy partners, we’re launching the Delaware Right to Counsel for Eviction Defense (DRCED) campaign to take steps toward resolving this racial justice, gender justice, and human rights issue.
Partners on This Effort Include
- Metropolitan Wilmington Urban League’s Building People Power Housing, Opportunity, Mobility, Equity, and Stability Campaign (H.O.M.E.S.)
- ACLU National
- ACLU of Delaware
- Community Legal Aid Society, Inc. (CLASI)
- Delaware Coalition Against Domestic Violence (DCADV)
- Delaware Volunteer Legal Services, Inc. (DVLS)
- Housing Alliance Delaware
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Our Campaign Goals
Through our efforts, we seek to:
- Pass legislation that would implement and fund statewide right to counsel for tenants at risk of eviction.
- Ensure tenants are aware of their right to counsel in eviction proceedings.
- Keep at-risk families and tenants remaining in their homes during the pandemic and beyond through safeguards like legal assistance with applying for rental assistance and delaying or preventing eviction when possible.
On May 4, 2021, Senator Bryan Townsend introduced a bill to implement a statewide right to counsel for tenants facing eviction. This timely legislation provides a statewide right to counsel for tenants facing eviction, and establishes protections that will help keep renters in their homes.
What the Right to Counsel Legislation Does
- Creates a right to legal counsel for evictions for covered individuals, subject to a 3 year phase-in period. This covers tenants whose household income is not greater than 200% of federal poverty guidelines.
- Places coordination of the program within the Delaware Attorney General’s Office, who will contract with appropriate legal services providers to provide representation in proceedings covered by the bill.
- Requires landlords to provide notice of the right to counsel at certain designated intervals of a tenancy and in eviction proceedings.
- Creates an Eviction Diversion Program designed to help resolve payment or other issues prior to a landlord filing for eviction. This program is modeled on the Residential Mortgage Foreclosure Mediation Program.
- An eviction diversion program that would require the parties to mediate before the eviction is filed would go a long way to helping resolve these disputes quickly, amicably, and fully, and would prevent unnecessary displacement, spare court resources, and help get landlords connected with the rental assistance program.
- Prohibits landlords from filing for eviction unless the tenant owes at least one month's rent or $500—whichever is greater—and prohibits landlords from continuing an eviction action if the tenant pays all rent due.
- In 2018, approximately 20 percent of eviction filings in Delaware were brought by landlords seeking $550 or less, and 10 percent were seeking $350 or less. The lowest non-zero claim amount where the docket data suggests that the tenant was evicted was $19.46. That is, a tenant had an eviction filed against them where the landlord was seeking less than $20, and the tenant was evicted. The average claim amount by landlords from 2017 to 2019 was approximately $1,900.
- Allows tenants to stay in their home if they pay all back rent, fees and costs prior to an eviction.
- Provides COVID-19 specific relief for certain tenants whose evictions were stayed "in the interests of justice" during the pandemic, per Governor Carney's Emergency Declaration.
Reports & Resources
Stout Report: The Economic Impact of an Eviction - Right to Counsel in Delaware
Along with community and public health benefits, providing a right to counsel promotes substantial cost savings in Delaware. For every dollar invested in a right to counsel for low-income tenants facing eviction in Delaware, this report conservatively estimates a cost savings to Delaware of at least $2.76.
Eviction and Legal Representation in Delaware - An Overview
According to this report from the University of Delaware, “the current legal eviction process puts tenants at substantial disadvantage.” Securing tenants’ right to counsel in evictions would benefit both tenants and landlords by facilitating negotiations and reducing the need for formal court hearings.
Right to Counsel: The Nationwide Movement to Fight the Eviction Crisis
Due to systemic power imbalances, low-income tenants almost always are forced to face the eviction process without legal representation. In major cities across the country, "tenant organizers, legislators, and attorneys are pushing for a right to appointed counsel for renters in eviction cases."
The Appeal: Voters Support a Right to Counsel for People Facing Eviction
A poll from Data for Progress found that a strong majority of voters want a fairer process in eviction cases.
The Appeal: How Tenants' Right to Counsel Can End Inequality in the Eviction System - and Save Lives
"Ensuring renters have representation in housing court would help close a “justice gap” and be a life-saving intervention for those at risk of losing their homes."