SB 101 – Right to Counsel for Tenants in Evictions

Approximately 18,000 eviction cases are filed each year in the State of Delaware, and while 86% of landlords are represented by an attorney, agent, or business manager, only 2% of tenants have representation.

Senate Bill 101 aims to fix that by creating a right to counsel for tenants in evictions and other landlord-tenant actions. Giving tenants a right to counsel will drastically decrease evictions, leading to greater housing security, family stability, and community health.  It also represents progress in the greater movement to make housing a human right.

The bill would give the right to free legal counsel to people whose income is no more than twice the federal poverty guideline. Further, it would set a floor on the money owed that can result in eviction proceedings: No action may be filed where the amount of rent owed is one month’s rent or less than $500, whichever is greater.

The legislation would further create a residential eviction diversion program modeled after Delaware’s Residential Mortgage Foreclosure Mediation Program, which has helped more than 62% of participants stay in their homes since its creation in the wake of the Great Recession. Tenants in the mediation process also would be provided with a designated housing counselor, and most landlord-tenant disputes would have to pass through the diversion program before any formal legal action could be undertaken.  

The bill would allow tenants to stay in their homes if they pay all past-due rent – as well as any applicable court costs and fees – after a possession judgment has been awarded, but before an eviction takes place.  

Finally, it would create a “Right to Counsel Coordinator” position appointed by the attorney general. The coordinator would be able to contract with nonprofits offering legal representation to qualifying tenants facing eviction.

Senate Bill 101 Sponsors	Yes Votes	No Votes
Townsend, Pinkney, Gay, Lockman, S.McBride
Minor-Brown, K.Johnson, Lambert, Bentz, Longhurst, Morrison, Wilson-Anton
Current Status — Senate Finance 5/13/21

“Delaware and much of our nation has been facing an eviction crisis for decades, a costly and disparate reality for far too many vulnerable tenants that’s only been exacerbated by the COVID-19 pandemic,” said Sen. Bryan Townsend, the bill’s prime sponsor.  

“We have an opportunity now to rethink how the eviction process should work in Delaware and I believe we owe it to the 101,000 renters of this state to enact a fairer, more equitable system that will help families to stay in their homes when they face temporary financial instability,” he said. “This past year, we’ve all seen how circumstances beyond anyone’s control can have wide-reaching impacts on the lives of our neighbors. No one should be cast into the streets before being given every opportunity to uphold their end of a lease agreement and yet that’s what happens to more than 18,000 households every year.” 

A recent study of pre-pandemic eviction data by the University of Delaware’s Biden School of Public Policy found that 14 tenants in Delaware are evicted from their homes on an average day – a rate 2 percentage points higher than the national average. 

At $45 per case, eviction filings are relatively inexpensive and easy for Delaware landlords to file. Delaware law also does not set a minimum on the amount owed before landlords can take legal action, resulting in evictions over as little as $1. 

Black and Latinx families, who have been disproportionately impacted by the COVID-19 pandemic, also tend to be disproportionately targeted by evictions, largely because they tend to have a lower rate of homeownership than white families as a result of longstanding income and wealth inequities. Nationally, Black renters have evictions filed against them at a much higher rate than white renters. 

“98% of Delaware’s tenants who face eviction are left to navigate that hurdle without any legal representation or assistance, and Black women are more than twice as likely than white people to have an eviction filed against them, which highlights the deep disparities of eviction impacts in Black communities,” said Javonne Rich, policy advocate at the ACLU of Delaware. “The ACLU of Delaware supports SB 101 because implementing a statewide right to counsel for eviction defense would help address these disparities and ensure that low-income, Black, and Latinx families, who are disproportionately removed from their homes, would have a fair shot at housing stability and resources.” 

“Residents facing eviction often are people already in difficult situations. They’re working but struggling to make ends meet, so they definitely can’t afford a lawyer to help them, while most landlords have someone representing them,” said Rep. Melissa Minor-Brown, the lead House sponsor. “Getting evicted — especially when it’s avoidable — makes a bad situation worse. If these residents have access to legal representation, they stand a better chance of resolving these cases and staying in their homes, which is better for everyone involved. I hope this bill will level the playing field and help Delaware families avoid homelessness.” 

Studies have shown that tenants represented under similar right-to-counsel protections adopted by at least eight major cities throughout the country have resulted in tenants winning or settling their eviction proceedings in more than half of cases. Represented tenants are also twice as likely to remain in their homes as unrepresented tenants. Much of the nonprofits’ work is expected to focus on connecting tenants and landlords with rental assistance programs. 

“No family should be evicted without having access to counsel, said Daniel Atkins, executive director of the Delaware Community Legal Aid Society Inc. “Ensuring people facing eviction have legal help is not just humane, but it is also good public policy.  An independent advisory firm has found that for every dollar invested in eviction right to counsel, the State of Delaware will save $2.76 in costs that it otherwise would have spent on sheltering, rehousing, and otherwise dealing with the ramifications of evictions and homelessness.”