Denver Councilmembers Propose Ordinance for Eviction Legal Defense

At a time when renters across the country are struggling to keep up with monthly payments, two Denver City Council members are pushing a proposed ordinance that would provide many renters in this city a right to a legal defense during eviction proceedings.

"We’ve got to find better ways to support our residents upstream so that they don’t end up in homelessness," says Councilwoman Amanda Sawyer, who is sponsoring the proposal with Councilwoman Candi CdeBaca.

The ordinance would guarantee the right to a legal defense against eviction for renters who make 80 percent of the area median income (AMI) or less. Sawyer and CdeBaca have already asked Denver Department of Finance staffers to earmark CARES Act and American Recovery Act funding for the program for 2021 through 2024, so that federal money would cover establishing the legal defense program and pay for it during its first few years of operation. The two council reps estimate that when it's up and running, the program will cost around $4 million annually to operate.

"Councilwoman Sawyer and I are bringing this eviction defense right to counsel ordinance to committee with a real sense of urgency: Housing is among our most basic needs as human beings. And ultimately, our aim with this legislation is to prevent displacement and to keep as many people housed as possible during the current housing crisis — which predated COVID and will only be exacerbated by the lifting of the eviction moratorium at the end of June," says CdeBaca.

The City of Denver has had an eviction legal defense fund pilot in place since mid-2018, but owing to lack of funding, the attorneys provided through that program have only been able to help a fraction of indigent individuals facing eviction.

And the possibility of eviction has become particularly pressing during the pandemic. Since Governor Jared Polis allowed the last eviction moratorium to expire, the state has had nothing in place beyond the federal moratorium instituted by the Centers for Disease Control and Prevention. That moratorium prevents eviction of tenants who can exhibit that they've experienced a COVID-related financial hardship, are trying but cannot afford to pay rent, and have exhausted other options for obtaining relief.

But many individuals facing evictions don't qualify under the CDC moratorium requirements and may go through eviction proceedings without legal counsel. A study of Denver eviction cases from 2001 to 2017 conducted by the Colorado Center on Law and Policy and the Colorado Coalition for the Homeless found that landlords lawyered up in 89 percent of the cases, while tenants had legal counsel less than 1 percent of the time.

"The few renters who are able to obtain legal assistance are much more likely to negotiate an outcome that allows them to remain housed, have more time to move or, at minimum, avoid an adverse judgment from being entered on their record," says Jack Regenbogen, a senior attorney with the Colorado Center on Law and Policy.

The clients served by Denver's pilot program in 2018 had largely positive results, Sawyer notes. While 70 percent of them still moved, they did not receive a judgment against them, and 28 percent wound up staying in their homes without a judgment; 2 percent did receive a judgment and had to leave their homes. A judgment can have major repercussions for an individual, making renting in the future difficult.

Sawyer characterizes the proposed legal defense ordinance as a win-win-win for tenants, landlords and the city, since a guaranteed legal defense can guarantee "better outcomes," she says. And the city saves money by investing up front and preventing people from falling into homelessness, where costs multiply.

Today, May 4, Sawyer and CdeBaca will present their proposal to the Denver City Council Safety, Housing, Education and Homelessness Committee, which would have to green-light the measure before it moves to the full council for approval.

Sawyer says that her colleagues on council are "generally supportive" of the ordinance. On May 3, Denver City Council unanimously approved a landlord-licensing proposal that would require some basic housing guarantees for renters, among other things.

But there will be opposition from the Colorado Apartment Association. “This ordinance desires to use federal emergency relief money to subsidize lawsuits instead of assist those with COVID-related financial hardships at a time when homeowners, rental housing providers and residents are all struggling to recover," the organization says in a statement. "This ordinance is taking away the very funding that could keep residents housed and rental housing providers afloat.”

The No Eviction Without Representation Denver campaign, which is pushing its own proposal for the November ballot, supports Sawyer and CdeBaca's attempts to establish a right to eviction legal defense, but the group says it has "serious concerns" about the ordinance language. The biggest issue for the NEWR Denver campaign is the ordinance's limitation of legal services to people who make 80 percent or less of the area median income. "NEWR opposes means testing for Right to Counsel because we know adding qualifiers to a public program means barriers to every person accessing the program," the campaign says, adding that this stipulation could be especially exclusionary for undocumented tenants. Additionally, the group says it's worried about the lack of a specific funding source for the program.

NEWR Denver's ballot measure would take care of that. Members of the Denver chapter of the Democratic Socialists of America are currently gathering signatures for a proposal to create a universal eviction legal defense fund that would place a $75 tax on every residential rental unit in the city, potentially generating up to $12 million in its first year. If the proponents submit 9,184 valid signatures to the Denver Elections Division by early July, voters will see the measure on the November 2021 ballot.

Sawyer opposes that initiative. "It doesn’t jibe with our city processes very well, and that’s the problem," she says, noting that it could interfere with the implementation of the eviction legal defense ordinance and the establishment of the licensing system just approved by council.

CdeBaca, on the other hand, supports the ballot initiative, which would give all Denver residents facing eviction access to a legal defense, regardless of income. But she points out that "the process of gathering signatures and getting the initiative before voters on the November ballot has a longer timeline. The bill we're bringing to committee was drafted with the purpose of getting it passed in council expeditiously."

This story has been updated to include statements from the Colorado Apartment Association and No Eviction Without Representation Denver.