Nebraska enacts right to counsel for certain public housing tenants

Nebraska becomes 23rd jurisdiction with eviction RTC law

In 2024, Nebraska enacted LB 840, which provides a right to counsel to unrepresented public housing residents for administrative terminations and related evictions.  The right applies in cities of the “metropolitan class.”  Neb. Rev. Stat. § 71-15,139(5)(a).  These are defined as cities that “have attained a population of four hundred thousand inhabitants or more as determined by the most recent federal decennial census or the most recent revised certified count by the United States Bureau of the Census…” Neb. Rev. Stat. § 14-101.  As of 2024, the city in Nebraska to fit this definition is Omaha.

The law provides that:

(b) If the resident requests a hearing by the housing agency to contest the termination, counsel shall be appointed for the resident prior to such hearing unless the resident is already represented by counsel. The housing agency shall file an application with the county court or district court of the county in which the premises is located. The court shall appoint counsel to represent the resident in the hearing and in any related action for recovery of possession of the premises.

(c) If the resident does not request a hearing by the housing agency to contest the termination and the housing agency files an action for recovery of possession of the premises, the court shall appoint counsel for the resident unless the resident is already represented by counsel.

(d) The resident may waive court-appointed counsel or retain the resident’s own counsel. The cost of any court-appointed counsel shall be paid by the housing agency.

(e) Counsel appointed pursuant to this section shall apply to the court before which the proceedings were had for fees for services performed.

(f) In the case of a hearing to contest a termination for which there are no related court proceedings, counsel shall apply to the county court or district court of the county in which the premises is located.

(g) The court, upon hearing the application, shall fix reasonable fees.  The housing agency shall allow the account, bill, or claim presented by any attorney for such services in the amount determined by the court. No such account, bill, or claim shall be allowed by the housing agency until the amount has been determined by the court.

(h) A housing agency shall not assess a fee against any resident for legal services provided under this subsection or otherwise attempt to recoup such costs from such resident.

Neb. Rev. Stat. § 71-15,139(5).

Background on the new law

A 2022 study by the University of Nebraska College of Law of evictions in Lancaster County found a high level of lawlessness where tenants lacked counsel and that that a tenant representation project had stunning results (a summary of the study is also available).  The study examined 3,000 court hearings occurring in eviction actions filed between December 2019 and October 2021.  Key findings:

• Only 6.8% of the cases filed during the study period were “compliant with all statutorily mandated requirements for bringing an eviction action in Nebraska.”  Yet at the same time, “Non-compliant eviction actions were allowed to proceed in nearly every instance, and most often (60.8%) resulted in the tenant being displaced from their home.”  This included over 400 defaults with defective notice.

• Prior to the Tenant Assistance Project, only 2.2% of tenants had counsel, but after TAP, over 95% of tenants who appeared in court were represented.
• Only 2.3% of represented tenants were ordered immediately evicted, compared to 55.3% of unrepresented tenants.
• Where tenants were ordered evicted, representation dropped sheriff involvement from 41.9% to 32.1%, and increased time to move from .5 days to 7 days.

• During TAP’s operation, the rate of tenant appearances rose from 18.3% to 43.1%.

The data release was covered in part by KTMV (CBS 3) and The Reader.

Then, in 2023, a series of stories by Flatwater Press found that evictions by the Omaha Housing Authority “hit a six-year high in 2023”, causing OHA to pause its evictions entirely.  LB 840 was in part a response to this development.