June 17, 2024

A look inside a Mass. ‘poverty court,’ where no one has the right to an attorney

BY Greta JochemMassLive

SPRINGFIELD — It’s 9 a.m. on a Thursday. Every row of benches in the Western Housing Court in Springfield is full of people. In the back of the courtroom, about 20 people stand against the wall, including a man holding a toddler.

Welcome to a typical Thursday in housing court.

“Please listen up and focus,” Judge Robert G. Fields tells the room, before explaining what’s ahead. “Housing law is complicated,” he says. He encourages anyone who needs help to visit the court’s resource room, which offers free legal advice on Thursdays.

A clerk reads through the names on each case, taking attendance, listing options and asking what the parties want to do. Hands go up in the gallery and people call out. Some people aren’t there and the clerk declares defaults — meaning the court can file a judgment against them.

Before going into court, attorney Gordon Shaw, director of client access at Community Legal Aid, walks by a bulletin board in the hallway, which displays a 22-page docket for the day. Under “attorney,” more than 100 people are listed as “pro se,” meaning they do not have a lawyer.

“This is the problem in a nutshell,” Shaw said.

Mostly it’s tenants listed as pro se, but some landlords, too, are not represented. Unlike a criminal case, people do not have the right to an attorney in Massachusetts housing court, leaving those who can’t afford an attorney navigating — and often stumbling — through the complex system themselves.

Unrepresented tenants

In non-payment of rent eviction cases from 2023 to now, about 10% of landlords do not have an attorney, while 96% of tenants went unrepresented, according to Massachusetts Trial Court data. The Trial Court does not have similar statistics available on representation for both sides in all types of eviction cases, but said that last fiscal year, about 91% of all cases had at least one party without an attorney.

Pending legislation could change this. A bill, “An Act promoting access to counsel and housing stability in Massachusetts,” would create a program to give income-eligible people in eviction cases access to an attorney to represent them fully in their cases. That would include owner-occupants of one- to three-family homes.

Relative to other states, renters have many protections in the Bay State.

“Massachusetts does afford their tenants more rights, but you have to know how to properly assert them in the courtroom,” said Mark A. Martinez Jr., ahousing attorney at the Massachusetts Law Reform Institute, which backs the legislation. “I think housing court is one of the places where a lawyer really can make a difference.”

If the legislation passes, the program would still be subject to appropriation of funding.

For now, Community Legal Aid is trying to help as many tenants as it can, while a similar program from the Hampden County Bar Association does the same for landlords. On Thursdays, both programs operate in Springfield, setting up in a second-floor room in the court to handle a flood of people seeking legal help.

“There’s definitely an uptick (of cases) coming out of the Covid moratorium,” said Marjorie Dunlap, legal clinic director at the Hampden County Bar Association.

Statewide, eviction case filings have climbed higher than pre-pandemic levels, according to data published this year by the Massachusetts Housing Partnership. In a six-month period ending in February, the analysis found, Hampden County had the most eviction filings per capita, with Springfield hit hardest.

Waiting for help

After the initial 9 a.m. calling of cases on the docket, about a dozen people sit at a table in the resource room waiting for help with eviction cases from attorneys, volunteers and paralegals from Community Legal Aid. A group of landlords lines up on the other side of the room seeking legal help from Dunlap.

Once a week, the CLA program provides services in the other housing courts cases in Western Massachusetts — in Greenfield, Pittsfield and Hadley. Thursdays and Fridays, they are in the Springfield court.

They talk with clients who walk in, give them legal advice, help them prepare paperwork, and sometimes, when Shaw or an attorney can, they will go into the courtroom or sit at the mediation table.

But Shaw or a colleague can’t be in every hearing. “Sometimes there’s not much I can do for them other than prepare them for what’s coming,” said Shaw. He’s been doing this for nearly 20 years. The program is “woefully underfunded,” he said.

“We’re often in the position of making choices of who we can fully serve,” he said. Still, the program at the court is a way to maximize the Community Legal Aid’s resources, as housing issues are a top reason people turn to the nonprofit for help, he said.

Shaw triages cases. On the recent Thursday morning, a paralegal tells him there’s a woman facing a Monday move-out order. Shaw jumps on the case, and sits down with the renter to catch up on her situation.

The 27-year-old woman, who asks not to be named to protect her privacy, filed a motion to stop her move out from a property owned by Springfield Gardens. She owes about $15,000 in rent, and has $300 in her checking account, she tells Shaw. The case has been going on for close to a year.

Late last year, she left the one-bedroom apartment and went to a shelter for domestic violence victims, where she still lives, and she filed a protective order against her former partner, she tells Shaw.

She has three kids under the age of 5 and just started a new job as a certified nursing assistant. She keeps having to re-tell her story. “This is exhausting for me,” she says, adding that she’s pregnant. “I’m tired.”

The woman pulls up videos on her phone of cockroaches in her apartment. “I feel them crawling on me when I sleep,” she says. Springfield Gardens’ record includes a public outcry over poor conditions, a lawsuit from the city alleging the company didn’t get required inspections and Mayor Domenic J. Sarno last year threatening to put the properties in receivership.

But because a judgment was already issued in her case, it is too late to raise issues about the conditions, Shaw informs her.

As they speak, other meetings between clients and Lawyer for a Day program staffers and volunteers are underway in the room. One person goes into a closet to take a phone call.

‘We don’t have time’

Shaw speaks with a social service provider on the woman’s phone, asking how much she qualified for from HomeBASE program, a state initiative that helps eligible families find housing.

“We don’t have time,” Shaw says into the phone. “Monday is her eviction.”

Shaw is told the woman can get $5,000 to put toward her arrears, and he thinks she should be able to get more, but he can’t do anything. He is also told that to get funds, the woman would have to be transferred to a different unit because of the domestic violence.

With the eviction notice on the table, Shaw tells the woman that if she is forced to move out, to make sure she takes important documents, like birth certificates, with her.

Before Judge Jonathan Kane, Shaw and the woman explain the situation, offering the $5,000.

“We’re not in a position to agree,” says Richard Herbert, Springfield Gardens’ attorney. He tells Kane the debt is large and the company hasn’t been paid rent by the tenant since last July. Transferring her to another unit is a problem.

Herbert declined to comment to The Republican.

The woman tells the judge she has to work Friday and doesn’t have time to move her items from the fourth-floor apartment and the conditions are poor. “The cockroaches are still out of control,” she says.

It may be true, Kane replies, but there’s not enough reason to cancel the move-out, especially if the landlord can’t shift her to another unit.

You have until Monday, Kane says.

It wasn’t a good outcome, Shaw says as he leaves the courtroom. The case was too far along in the process for intervention.

The ‘poverty court’

As in the woman’s case, the most common issue Shaw sees simple. People do not have enough money to pay their rent. “Housing court is a poverty court,” he said.

“Most people are very afraid,” he said. “They don’t understand the process.”

And that puts them behind from the start. For example, when a landlord serves a tenant with a complaint, the tenant must file an answer days before their first housing court event.

“Less than 5% of tenants follow that,” he said. “They don’t understand it.” Often, he and his Community Legal Aid colleagues help people file late answers to complaints, which needs a judge’s approval for late filing.

“Nobody knows what an ‘answer’ is,” said Rose Webster-Smith, director of Springfield No One Leaves, who has been volunteering Thursdays with Lawyer for a Day for years. The legal help makes a significant difference, she said, taking a break from printing out court dockets for CLA staff.

Shaw speaks with a tenant whose Springfield apartment had been purchased. The new owner filed a no-fault eviction.

The tenant looks confused when Shaw tells her about the missed due date for filing her response to the complaint. Together, the draft a formal response, including her allegations about poor conditions, and Shaw tells her to deliver the paperwork to the clerk’s office.

Investors are buying up properties and filing no-fault evictions to clear the buildings out, he tells her. If she has to leave, “it’s going to be tough to find something affordable,” he says. The woman sighs. He sees people facing no-fault evictions go months unable to find a new place they can afford, he says. “There’s not enough housing.”

The landlord line

Across the resource room, landlords who do not have their own legal help line up to speak with Dunlap, an attorney from the bar association’s program.

On Mondays, Dunlap’s program offers help via Zoom. On Thursdays, they set up shop in the Springfield court. Previously, Dunlap spent 25 years in private practice before joining the nonprofit bar association.

Dunlap speaks with about eight clients that day, helping with their cases. Many are landlords in owner-occupied two- or three-unit buildings. People often assume landlords can afford an attorney, but some cannot.

“Just because they own a property doesn’t mean they have liquidity,” she said. Without income from a rental unit, some landlords struggle, especially if they are living on Social Security or disability benefits.

After a default, landlords who don’t have counsel can be confused about what paperwork to file. One property owner in court on this Thursday asks the judge over and over what he needs to do next, after the court allows a motion he filed. Eventually, he is told to visit the clerk’s office.

Large landlords often have an attorney on retainer who regularly represents them in housing court, Dunlap said. “They are there all day every day,” she said. “That’s their practice.”

If there’s time, Dunlap can represent someone in court. But usually, she gives the person 15 to 20 minutes of legal advice. Landlords who need help but don’t have a case on the docket that day will also come for help. She tells them they can wait — but can’t guarantee she’ll find time to help. Often landlords ask her to come to the mediation table with them, but she can rarely work that in.

Like Shaw, sometimes the best she can do is explain the process.

She often encourages landlords hire a lawyer if at all possible. If a tenant in an eviction case finds a procedural error the landlord made, the process goes back to the beginning. “Housing court is like running on a gerbil wheel,” Dunlap said she tells clients. “You go around and around.”

She’s seen some landlords so worn out by the eviction process they decide to sell and no longer be a landlord.

Dunlap says she’s heard the claims that the state’s system is tenant-friendly. “I don’t think I’ve found that,” she said. It’s a challenging, often drawn-out process. “I think it can be difficult for both sides to maneuver it.”

With COVID-19 emergency funding gone and inflation rising, she sees a need for free legal services. “Everything has gone up but wages,” she said. “Making the rents now has become more and more difficult.”

Editor’s note: This story is part of an occasional series, “Faces of the Housing Crisis.” Are you experiencing housing issues or have a housing-related problem you want us to investigate? Email suggestions to nsampath@repub.com and gjochem@repub.com.