Delaware takes major step towards tenant right to counsel

Senate Bill 1, enacted in 2023, provides an entitlement to counsel for Delaware tenants in evictions, terminations of housing subsidies, and proceedings to “remedy a violation of law related to landlord-tenant matters, such as retaliatory actions, habitability, illegal eviction, or violation of quiet use and enjoyment.”  However, the law contains several important exceptions where the tenant is not entitled to counsel, most significantly if the legal services provider “deems the tenant’s defense or appeal to lack merit.”  Because a merits-based determination of eligibility is inconsistent with the concept of tenants having a “right” to counsel, the law falls short at present of being a full right to counsel, although it is a significant advance in that direction.  The law also excludes tenants whose landlords own three or fewer units and are not represented by either an attorney or authorized agent, or any case where “other circumstances exist which make legal representation infeasible to render.“

The bill’s passage was covered by Delaware Online, Delaware Public Media, WDEL, WMDT, and WBOC.

The bill was backed up by a number of different studies:

• A Stout report found that “With an annual investment of approximately $3.4 million in a right to counsel, Delaware may save at least an estimated $9.4 million in costs related to disruptive displacement of tenants annually.”  It also reported that only 2% of Delaware tenants are represented, compared to 86% of landlords and that “represented tenants are 4 times more likely to avoid disruptive displacement than unrepresented tenants.”
• A study by the University of Delaware School of Public Policy and Administration found that 21% of adults in homeless shelters had an eviction within a 2-year period prior to shelter use, with higher numbers for those who had children, were Black, and/or were female.
• A 2020 study found that “During 2019, over $2.5 million in income, health, or housing benefits resulted from preventing evictions in Delaware.”