Q3 Report - Issue Spotlight: Eviction Diversion

Landlords benefit from the pressure-cooker nature of eviction court. A notice, filing, initial appearance and trial could all happen in the span of a month, and a tenant is on defense – and at risk of losing their housing – at every step of the process.

To further empower tenants and improve housing stability in Dane County, the Eviction Diversion and Defense Partnership expanded its “Diversion” pillar in the last year, which provides distressed tenants and communities with free legal representation before they are court-involved. 68 cases have been referred to EDDP partner attorneys since September 2022. Eviction diversion legal representation supplements the work of TRC’s housing counseling services. Housing counselors provide information about rental rights and responsibilities, but when the situation is one where the tenant’s housing stability is significantly at risk and other extenuating circumstances are present, TRC refers the matter to an EDDP Legal Partner.

Community Justice Inc attorney Carousel Bayrd, one of the partners who takes diversion referrals, calls the additional funding provided for diversion cases a “game changer.” Having more time pre-eviction with a client leads to a stronger defense that is less risky and less scary for tenants, she said.

Eviction diversion affords tenants and attorneys the time and ability to address serious housing issues like unsafe living conditions, unlawful notices, and harmful landlord practices before these issues result in an eviction filing. Stopping an eviction filing also prevents the immediate and long-lasting harms that an eviction filing can have on a household, such as the impact an eviction record can have on finding new, safe housing in the future.

Addressing housing concerns earlier on also allows parties to confront a broader range of issues, explore a greater variety of solutions, and establish better relationships between landlords and tenants, all while saving court resources. Diversion is about “how can you live harmoniously in this place? How can your home be a place of safety and of joy and peace?” UW Attorney Sophie Crispin says.

EDDP partner attorneys at LAW and UW recently represented tenants at The Meadowlands, a subsidized apartment complex in Madison, after tenants complained about a host of harmful practices including 5-day, 14, day, and criminal eviction notices issued seemingly at random and for unlawful reasons; unsafe living conditions; and discrimination. Tenants that were issued unlawful notices, such as ones not complying with the CARES Act or VAWA, received representation and have avoided eviction filings, says LAW Attorney Heidi Wegleitner.

Attorneys at LAW and UW also advocated for tenants with the City of Madison and elected officials, which has led to the introduction of social services for tenants and a more supportive approach from the city. By representing a group of tenants with the same landlord, EDDP is able to effect larger scale change. EDDP partners advocated for tenants to have a hand in the decision-making at the property. “My biggest concern was they were going to scapegoat the tenants,” Wegleitner says.

Eviction diversion also allows tenants and attorneys to leverage a wider set of facts and tools. Only a limited range of details are legally relevant in court, says Crispin, which requires the defense to use a “chisel rather than a hammer.” A tenant may withhold rent because their apartment is unlivable, for instance, but if they don’t follow the legal rent abatement process their legitimate concern is often legally irrelevant – something that doesn’t feel like justice to a client, Crispin says. Attorneys can better assist tenants through the steps of rent abatement or other city and administrative bodies if these tenants are reached before they are in court, however.

This is especially true for tenants in subsidized apartments and those with disabilities, who often have additional protections that can be exercised. Section 8 voucher-holders have important grievance rights that can be invoked when facing termination, for example, and having an attorney to assist tenants at these hearings can be crucial to preserving the voucher, Wegleitner says.