I was recently fortunate enough to attend separate meetings with individuals that have a deep understanding of our region’s housing crisis. I came away from each realizing that my views on housing—while I thought reasonably considered—were, in fact, insufficiently developed. Of course, this is why you go to meetings with people you hold in high regard. There is more to housing and housing solutions than I have pondered. Let me share with you some of what I learned.
I first attended a gathering at which Great Barrington Selectboard Vice Chair Leigh Davis spoke. Since Ms. Davis has been professionally and politically focused on housing, it is unsurprising she had many thoughtful comments to share. After hearing Ms. Davis speak, I came away realizing that I had not fully appreciated the importance of housing to our community. I had considered housing merely in terms of four walls and a bed, missing that housing is fundamental to our wellbeing.
When it comes to housing, Ms. Davis can speak fast and furiously, the way a car guy can rattle on about Hemi engines. Although I tried, I couldn’t drink fast enough from the fire hydrant of housing points that were being made. Unable to commit to memory all that had been said, I later contacted Ms. Davis to ask if she could repeat, slowly, some of what she shared with the group. Ms. Davis kindly emailed the following points:
Housing is health care. Access to safe, quality, affordable housing is one of the key social determinants of health. Housing is key to our well-being. It’s the foundation for our mental and physical health. Numerous studies show that people who are safely housed feel more stable, make better decisions, and can set and achieve goals—it’s a key element in succeeding in life.
The housing crisis hurts every single one of us. It hurts our businesses that can’t find staff. It hurts our seniors, who can’t age in place. It hurts our healthcare providers and other essential service providers, who are now few and far between due to housing unavailability. It hurts our youth, who live in stress when their families are housing insecure. It disproportionally hurts people of color, people on low incomes, and people with disabilities. This is a way to say that the housing crisis is a crisis for our community.
Right. Housing is the foundation for a livable existence. And eviction from housing leads to another deeply troubling crisis, points made in a book recommended by Douglas Mishkin, with whom I met next. Mr. Mishkin recommended the Pulitzer Prize-winning book, “Evicted,” by Princeton Professor Matthew Desmond. The book details the economic, emotional, and social cost of evictions not only on evicted tenants and their children but also on their neighborhoods.
Mr. Mishkin is a former Washington, D.C. litigator who now lives here and is associated with Heisler, Feldman & Ordorica, P.C., a law firm that represents low-income tenants in Housing Court. We met to discuss my November 2023 column, “Landlords’ cold showers,” in which I argued that due to a strengthening of renters’ rights, there was a landlord-tenant eviction imbalance. I noted that holdover tenants occasionally remain in leased properties for years as their eviction proceedings haltingly work through Housing Court. My concern was that an unintended consequence of strengthening renters’ rights was a chilling effect on homeowners’ willingness to lease vacant properties. Mr. Mishkin urged me to consider another perspective based on several facts that I find compelling. What follows are points Mr. Mishkin made at our meeting and following concerning what he perceives as the landlord-tenant eviction imbalance that favors landlords, not tenants.
Fact: Landlords almost always win in Housing Court. A survey conducted several years ago by a committee of the Access to Justice Commission of the Massachusetts Supreme Judicial Court found that, reviewing seven years of decisions of several divisions of the Housing Court, landlords win 98 percent of the time.
Another fact: Massachusetts landlords typically have legal representation, and tenants do not. Massachusetts court data for 2022 reflects that 86 percent of landlords were represented by lawyers in court, while fewer than 12 percent of tenants had counsel.
And another fact: The outcome in court changes dramatically when a tenant has a lawyer, as reflected in a Boston Bar Association report regarding a pilot program in Quincy that provided tenants with lawyers. Tenants with lawyers were twice as likely to avoid eviction as unrepresented tenants and did five times better in the financial results of their lawsuits. Recent Massachusetts court data also shows that tenants without lawyers were evicted almost 40 percent more often than tenants with lawyers; were four times as likely to suffer a default judgment as tenants with lawyers; and were three times more likely not to assert counterclaims against landlords (for violations like lack of heat) as tenants with lawyers. Data from Connecticut and New York, which have adopted programs to provide lawyers to tenants facing eviction, show comparable results. And, Mr. Mishkin noted, the court statistics do not reflect the all-too-common phenomenon of tenants who, without knowing their rights, simply accede to landlord requests to leave their homes when they may have a right to stay. Those tenants lose 100 percent of the time.
In 2022, Housing Courts across the Commonwealth disposed of 21,174 “Summary Process” cases (cases in which landlords sought eviction). In a 2019 decision from the state’s highest court, Adjartey v. Central Division of the Housing Court Department, then-Chief Justice Gants describes how “the complexity and speed of summary process cases can present formidable challenges to individuals facing eviction, particularly where those individuals are not represented by an attorney … especially when that litigant is also facing the stress of a potential eviction.”
Mr. Mishkin brought to my attention two bills currently pending in the Massachusetts legislature (S. 864 and H. 1731) which would provide for legal representation for low-income tenants and low-income owner-occupant landlords in eviction cases. Mr. Mishkin believes—and I concur—that landlord-tenant cases should be decided based on the merits, not because a skilled, experienced landlord lawyer can out-argue an unrepresented tenant who likely is less educated, unsophisticated, and unfamiliar with court procedures and Massachusetts housing law. These bills are intended to level the playing field.
Mr. Mishkin and I agree that we suffer from an undersupply of housing. The reasons for the housing shortage are varied and complex, and I did not intend to suggest in my earlier column that the occasional outlier court decision is the culprit. In addition to investing in housing, the state should invest in Housing Court. By providing lawyers for low-income tenants, the decisions will be fairer, and resolutions more expeditious. No one should fear being wrongly evicted, and no one should fear leasing a vacant home. One way to invest in housing is to invest in Housing Court by passage of S. 864 and H. 1731.
