Housing

Sharing Insights To Protect Low-income Taxpayers, Tenants, and Victims of Predatory For-Profit Schools

Attorneys at the Legal Services Center represent thousands of low-income clients every year to protect their rights. Our attorneys also bring their expertise and passion to bear through publications that raise awareness of critical issues and promote our client community’s legal rights. Recent publications from LSC staff members have covered topics ranging from protections for low-income taxpayers, people victimized by predatory for-profit schools, and tenants facing economic exploitation.

This summer, Victoria Roytenberg of LSC’s Project on Predatory Student Lending published “How Trustees Can Make Sure Former Students of Predatory For-Profit Schools Are Served by the Bankruptcy Process”in the American Bankruptcy Trustee Journal (Summer 2019 issue, Vol. 35, Issue 03). In this article, Roytenberg describes five ways bankruptcy trustees can work effectively with counsel for students to help what is the largest and most important group of creditors in the for-profit schools scandal.

Toby Merrill, Eileen Connor and Josh Rovenger, all of the Project on Predatory Student Lending, were among the co-authors of an article on the Harvard Law Review blog entitled “For-Profit Schools’ Predatory Practices and Students of Color: A Mission to Enroll Rather than Educate.” In it they highlight the particularly pernicious ways in which for-profit schools have targeted racial minorities, those who are the first generation in their family to go to college, and other low-income individuals — and how the federal Department of Education has abetted them in this effort. Read the blog here.

Keith Fogg of LSC’s Federal Tax Clinic, has been a longtime editor of Effectively Representing Your Client before the IRS, the desktop bible for advocates representing low-income taxpayers before the IRS. Together with two co-authors, he also writes the widely followed blog Procedurally Taxing that regularly considers developments in regulations and case law that affect tax procedures and tax administration. You can read the blog at https://procedurallytaxing.com/

And LSC’s housing specialists Julia Devanthery and Maureen McDonagh have written chapters for the manual Legal Tactics: Private Housing, an easy-to-understand, comprehensive handbook on Massachusetts tenants’ rights for lay audiences, edited by Annette R. Duke of the Massachusetts Law Reform Institute. This manual, available free and online, focuses on private rental housing and answers questions on everything from security deposits and last month’s rent to rent and utilities, repairs, evictions, housing discrimination, lead poisoning, mobile homes, and tenants in foreclosed properties. You can find the manual here.

Legal Services Center Housing Clinic wins precedent setting case for domestic violence survivors facing eviction

Ruling has implications for domestic violence survivors nationwide

Survivors of domestic violence in Massachusetts and nationwide facing eviction have won a major victory in the Supreme Judicial Court of Massachusetts (SJC)* with a new ruling that the federal Violence Against Women Act (VAWA) protects tenants in federally subsidized housing from being evicted when the cause of eviction is tied to their domestic abuse. The court ruled that a domestic abuse survivor is protected even if he or she reveals the abuse late in the eviction process or after defaulting on an agreed upon payment plan, and that it doesn’t matter when or how the survivor alerts the court and the landlord that she is the subject of abuse.

The new precedent reduces the risk that domestic violence will lead to eviction and homelessness, a decision that has vital implications for survivors of domestic violence who are facing eviction in Massachusetts and across the nation.

The decision marks the end of a multi-year effort by a low-income Boston tenant to stay in her home. The client in this case, Y.A., is a mother of two who had been in an abusive relationship and had been trying to stave off eviction since 2014, when she first received an eviction notice for nonpayment of rent. Her abuser subjected her to physical and emotional abuse and stole the income she earned from her job.

At a hearing in the Eastern Housing Court in January 2018, where she was facing immediate eviction, Y.A. explained that domestic violence caused her to fall behind on her payment plan. Nevertheless, the judge granted the Housing Authority’s motion to forcibly remove Y.A. from her home. In doing so the judge ignored a key provision of VAWA, the landmark 1994 law, which includes protection for tenants and applicants of federally funded subsidized housing from denial of housing or eviction from housing “on the basis that the applicant or tenant is or has been the victim of domestic violence.”

The WilmerHale Legal Services Center of Harvard Law School (LSC) began representing Y.A. after she lost her case in Housing Court and helped her appeal the decision. The SJC took up the appeal of its own accord, and the case received national attention, with 14 advocacy groups filing amicus briefs in support of the survivor. Oral argument was held on January 7, 2019.

The SJC’s May 10, 2019 decision was unambiguous, declaring that: a survivor may raise a VAWA defense to eviction at any time during an eviction proceeding; there is no prescribed method or words needed to do so; there is no restraining order prerequisite to prove eligibility for the defense; domestic violence can be disclosed to the court without first disclosing to the landlord and still form the basis for a defense; the defense can be raised even in instances of chronic non-payment; covered housing providers have an affirmative duty to help survivors and not evict them for reasons directly related to domestic violence; and that judges, upon hearing evidence of domestic violence, are obligated to inquire further to fully evaluate the applicability of VAWA and write findings before issuing decisions.

“Housing is a basic human right, and stable housing is critical to stemming the cycle of the trauma faced by survivors of domestic violence,” said Congresswoman Ayanna Pressley, Representative of the Massachusetts 7th Congressional District. “This ruling is a victory not only for Y.A. and LSC, but for every survivor who has faced housing instability as a result of domestic violence. I’m eternally grateful to Y.A. for her bravery and to LSC for reaffirming protections for survivors.”

Before releasing its full opinion, the SJC issued a brief order reversing the Housing Court’s earlier decision. The order allowed LSC to negotiate a new agreement with the Housing Authority on behalf of Y.A. that will allow her to stay housed and avoid another hearing in Housing Court.

Y.A., who fought her eviction for years without legal representation before finding LSC, expressed her happiness at the decision after a long and difficult fight, saying, “I tried for so long to get help, and to explain my situation. When [the Housing Authority] told me I had to leave the apartment, I cried, night and day. It was wonderful to get help from LSC, and I’m so glad that my case will help others.”

The result represents the culmination of a determined, collaborative effort by LSC’s Housing Clinic, including lecturer and attorney Julia Devanthéry, clinical student Emily Mannheimer ’19, and numerous allies around the state who helped prepare the Clinic for oral argument. Massachusetts-based organizations contributing amicus briefs in the case include the Boston Area Rape Crisis Center, Casa Myrna, the Domestic Violence Institute of Northeastern University School of Law, Greater Boston Legal Services, the Foley Hoag Domestic Violence Prevention Project, Jane Doe Inc., the Massachusetts Law Reform Institute, the Volunteer Lawyers Project, and the Women’s Bar Foundation. In addition, national and out-of-state organizations including the ACLU of Massachusetts, the ACLU Women’s Rights Project, Community Legal Services of Philadelphia, Mid-Minnesota Legal Aid, the National Housing Law Project, the National Network to End Domestic Violence, and the Sargent Shriver National Center on Poverty Law filed amicus briefs with the court.

The SJC’s decision not only had a clear and immediate impact for Y.A. in this case, it also created an important precedent that will be useful to housing advocates in Massachusetts and across the country. Daniel Nagin, Faculty Director of the Legal Service Center, described the decision as “a powerful example of how LSC’s individual representation cases have the potential to make real change for entire communities.”

* Boston Housing Authority v. Y.A

Read the full SJC decision: https://www.mass.gov/files/documents/2019/05/10/12623.pdf

Students’ Legal Skills Help Prevent Homelessness

William* was feeling hopeless. Elderly, disabled, and receiving treatment for a recent kidney transplant, he was stunned when his landlord unexpectedly served him with a no-fault notice of eviction. With his health failing in the dead of a frigid Boston winter, he suddenly faced the alarming prospect of living on the streets.

Yet when it looked like all was lost, William experienced a spectacular reversal of fortune. He walked into Edward D. Brooke Courthouse in Boston and obtained free legal assistance from a student of the WilmerHale Legal Services Center of Harvard Law School (LSC), who was participating in the clinic’s ‘Attorney for the Day’ program.

Moments after William approached the Attorney for the Day booth that March day, LSC Housing Court student Nicolette Roger ‘19 went right to work; she reviewed the facts of his case and counseled him on how to advocate for himself in court.

A roll of the dice

It was not an easy task. According to Roger, his case “was a roll of the dice.” William was scheduled to be evicted from his home that same day; he had exceeded a deadline that a judge had given him to find new housing.

William had been struggling to manage the situation not only because of his extensive hospital stay after the transplant, but also due to the fact that, like 95 percent of low-income tenants who find themselves in Housing Court, he had no attorney to represent him.

He is precisely the type of Bostonian that Attorney for the Day aims to reach. Organized by the Boston Bar Association (BBA), the program draws attorneys from local legal services organizations as well as volunteers from the area’s leading firms.

The BBA advertises that these services are available at Boston Housing Court every Thursday morning, though many community members find out about the program by word of mouth or simply happen upon the sign and table on the day of their hearing.

The guidance that tenants receive can make a huge difference. Roger explains that for someone like William who has no familiarity with the legal system, “even just navigating the courthouse can be difficult,” much less winning a case as a pro se tenant.

While the Attorney for the Day program is a transformative learning opportunity for students, it is life-changing for clients like William, who receive last-minute, ‘game-day’ counsel.

“One of my favorite experiences at Harvard”

Tom Snyder ‘18, who was participating in Attorney for the Day with the LSC for the first time last spring before graduation, attests that it is an incredibly challenging and demanding experience, but also one so rewarding that “it’s been one of my favorite experiences at Harvard.”

The program is overseen by the Director of the Housing Law Clinic, Maureen McDonagh. Students’ responsibilities at Attorney for the Day typically begin with ensuring that clients are in the courtroom at the proper time to respond when the judge does roll call. This is crucial because if the client is not present, the judge will issue a default judgment – an outcome that will likely lead to eviction.

“You’re definitely thrown right in,” explains Tyra Walker ‘18.

While the student attorney is often needed inside the courtroom to help a client file a motion or address a judge, frequently the work takes place in the adjacent hallway or in the mediation room, where negotiations between tenant and the landlord’s attorney occur.

In these cases, students must quickly learn about the client’s situation, assess whether defenses or counterclaims exist, and, where appropriate, determine how to reach an agreement with the landlord.

Righting a power imbalance

The students’ presence is crucial because often, a striking power imbalance is at play. Over 95 percent of landlords enter the courtroom with an attorney, while only 5 percent of low-income renters have that same protection.

When tenants lack representation, it is typically the case that “the landlord’s attorneys have more negotiating power, and clients end up agreeing to terms they can’t adhere to,” according to Kelsey Annu-Essuman ‘19.

Clients like William could easily slip through the cracks without the help from students. There were 127 cases on trial that day, and just two judges and five mediators present.

For many HLS students, this high-stakes environment is the first in which they will be responsible for representing a client in a dispute with real-world consequences. The situation is distinctly challenging because they have just a fraction of the time that Housing Court students typically would to secure a favorable outcome for the client.

Last-minute intervention of the sort that Attorney for the Day provides can be a lifeline for a tenant in a tough situation and can play a vital role in preventing homelessness. Still, the majority of cases handled by Housing Clinic students involve full representation of low-income tenants in complex and ongoing litigation, rather than emergency advice.

Indeed, for the students, Attorney for the Day is a highly educative and memorable experience precisely because it is so different from the in-depth, long-term work that students normally do in the Clinic – instead, just an hour in the courthouse can save a client from homelessness.

“You don’t get a lot of these experiences in law school,” affirms Walker, a three-time veteran of Attorney for the Day.

Using legal training in high-stakes courtroom experience

During Attorney for the Day, students work toward the same outcomes as they do during the semester – preventing eviction, improving housing conditions, halting utilities shutdown — but in this case, they have the opportunity to effect change behind the scenes, and very quickly.

Roger seized this opportunity when she prepped William to stand in front of the judge and request an extension on his timeline to pursue alternatives.

She explained to him what was about to happen and provided William with talking points. He listened intently, and when the time came he explained to the judge that because of his kidney transplant and severe medical problems, he had not yet found a new place. Moreover, he explained, in his condition homelessness would equate to a certain health catastrophe. In setting forth all this, William – again, relying on the advice Roger had shared – successfully documented the efforts he had made to date to obtain housing.

The appeal was successful. The judge offered William a one-month stay of eviction, given that he provided ample evidence of his ongoing housing search.

Roger, McDonagh, and other members of the Housing Clinic team made sure to follow up and help William with the search. Shortly thereafter, he took the first steps through the doorway of his affordable new housing unit, with time to spare.

*Name and some identifying details have been changed to protect client confidentiality.