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July|August 2002
Dog Docket By Dashka Slater
Zero L By Ayo Griffin
Almost Homeless By Jonathan L. Hafetz
Bad Fences By Sari Bashi
Misquoting Madison By Michael Doyle
Blessing Sham Shelters By Sheldon D. Pollack

Almost Homeless

By Jonathan L. Hafetz

The landlord's lawyer was trying to blame my client for a leak that had soaked a wall in the apartment she had rented for more than 35 years. He was wrong, but that's not what the case was about. The judge had to decide whether Laura, who is 58, "improvidently agreed" to move out of her rent-controlled apartment three months earlier, before she had talked with a lawyer. From the bench, the judge stared down at Laura (not her real name), who was bundled in a heavy sweater to stop chills from the flu. His answer was yes: Laura didn't live there anymore. She had been evicted.

Queens Housing Court, where Laura's case took place, occupies part of a modern, light-filled courthouse. Outside the clerk's office, where most people enter, a video monitor shows an overview of the court's physical layout and its operating procedures. Tenants can check boxes on preprinted forms instead of making a more formal argument. In Brooklyn, the city's largest borough, they also get sorted by color-coded tickets: yellow to fight a landlord who wants to evict you, white to fight a previous judgment against you. The idea is quick processing for those who don't have lawyers, as most don't.

Many cities, including New York, set up housing courts in the 1970s to streamline procedures for landlord-tenant disputes and help tenants enforce housing code standards. In practice, the courts don't protect tenants much because the landlords are the ones with the lawyers. Ninety-eight percent of New York City landlords go to court represented, compared with 12 percent of tenants, who have no right to counsel. Tenants without lawyers are more likely to agree to bad terms or lose at trial. Often, the result is homelessness.

In 1967, when she was 22, Laura moved into an apartment in a middle-class neighborhood in Rego Park, Queens, with her mother and her 2-year-old son. Her son eventually grew up and moved away. Eleven years ago, Laura lost her job as a medical secretary, and serious knee problems made it hard for her to find another one. Then her mother died. Until last year, Laura managed to pay for the apartment, which rent control helped keep at $436 a month. But Laura's savings finally ran out, and her landlord, eager for the chance to raise the rent, served her with eviction papers.

In preparing those papers, however, the landlord's lawyer made a key legal mistake. He said that Laura was a "licensee," which meant that she could stay in the apartment only with the permission of the tenant who had signed the lease—Laura's mother, who obviously couldn't give permission, since she was dead. In fact, Laura's relationship to her mother and her years in the apartment made her a tenant in her own right, which meant that she had a strong claim to the apartment—and a solid defense against the eviction action.

Laura had no way of knowing any of this without a lawyer to explain it to her. Scared and convinced she had no other choice, Laura signed what a lawyer for her landlord asked her to sign. She agreed to leave her rent-controlled apartment—a valuable commodity in a city where affordable housing is scarce. (New York lost more than half of its low-rent apartments, or 500,000 units, in the 1990s.) In exchange, the landlord promised to forgive $3,600 that Laura owed in back rent and allowed her two months to move out. Laura spoke to several lawyers from the firm representing her landlord before her eviction. She remembers the lawyer who persuaded her to sign as the friendliest.

Laura's experience is a common one. Most of the action in housing court takes place in the hallways outside the courtrooms. Landlords' lawyers rush around tabulating sums on pocket calculators like salesmen trying to prove that their price is fair by showing that their math is accurate. By the time they go before a judge, tenants often have agreed to the landlord's terms even though they might have done better at trial—by showing that the landlord misstated the rent they owed, didn't serve them correctly with the eviction papers, or didn't make necessary repairs and so wasn't entitled to the full rent.

Before approving these "one attorney" hallway agreements, many housing court judges briefly ask tenants whether they understood what they agreed to when they made the deal. But with over 300,000 housing court cases filed each year in New York City—each judge averages 7,000 cases a year—there's not much time or inclination for probing beneath the surface. In Laura's case, the judge never asked the handful of questions it would have taken to learn that she had a winning defense against her landlord's eviction action. (The New York State Assembly recently passed a bill to make judges fully explain agreements to lawyerless tenants, but the legislation will likely face strong opposition in the state senate.)

As easy as it is for tenants to sign away their rights, it's hard to undo the damage. I met Laura the day she was evicted from her apartment, at a Manhattan drop-in center where I give legal help to elderly homeless people. She was tired and hungry. She didn't want to rehash the eviction or dig through her belongings to look for court papers. But after talking to Laura for a few minutes, I thought we had a chance to get her back into her apartment if we acted quickly.

First, I tried a legal argument. I asked the judge to undo the agreement because Laura wouldn't have signed it if she'd understood what her rights were. That tactic went nowhere. The message of the judge's denial was clear: It was enough that Laura had an opportunity to find a lawyer; if judges had to ensure that tenants really understood their rights, the whole system would break down.

Laura's only chance was to appeal immediately, a long shot when a tenant has already been evicted. Even though technically it didn't matter, Laura would have to show she could pay all the back rent she owed—which had mounted to $5,900—if she was to have any chance of success. Why scrap the eviction if Laura was going to wind up back in court?

New York City's welfare administration can give emergency "rent arrears" grants to prevent evictions. There are no fixed standards governing the grants, just a rough calculation based on monthly rent, back rent, the tenant's future ability to pay, and the circumstances of the eviction. Applying is like making an advertising pitch. The city views the awards as a gamble and looks for reasons not to give them.

Laura had already gone to her local welfare center and been turned down. Her caseworker assumed that since Laura's apartment was not in her name, she had no right to it. When I called, I argued that Laura was a long-time older tenant whom one boost could prevent from becoming homeless. The welfare department agreed to pay the $5,900 in back rent—a good deal for the city compared with the cost of an extended stay in a homeless shelter. With that promise, and with an offer from a local charity to try to help with future rent, I won from an appeals court another chance to present Laura's case to the housing court. There, the judge gave her the apartment back.

I couldn't solve all of Laura's problems, though. After evicting her, the landlord started renovations in hopes of raising the rent for the next tenant. With the work unfinished, Laura was still fighting to get back home at press time. And as her case dragged on, she told me that, in any event, living alone in her Queens apartment had become lonely. She needed some things a lawyer couldn't provide.

Jonathan L. Hafetz is a staff attorney for The Partnership for the Homeless in New York City.

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