eviction

SC Supreme Court approves nonlawyer representation in eviction defense program

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The S.C. State Conference of the NAACP, the S.C. Advocate Program (“Housing Program”) and three prospective nonlawyer volunteers for the Housing Program petitioned our Supreme Court seeking authorization to allow nonlawyer volunteers to provide free, limited assistance to tenants facing eviction in magistrate courts.*

The petition sought a declaratory judgment in the Court’s original jurisdiction that their proposed activities will not constitute the unauthorized practice of law. Dirt lawyers will recognize the Court’s struggle with the UPL issue because it took 18 pages to reach an affirmative answer. More than three pages were devoted to the history of the UPL issue in South Carolina. Many of us can recite that history from memory.

The petitioners argued that the unmet legal needs of tenants facing eviction is an emergency situation justifying immediate action and that 99% of defendants in eviction cases are not represented by lawyers in the proceedings.

Tenants involved in the program will be advised that the volunteers are nonlawyers. The volunteers are required to limit the information they provide to tenants, and they may only:

  • Confirm that the tenant has a pending eviction;
  • Advise the tenant that they should request a hearing and, based on the text of the eviction notice and checking relevant court records, explain how and when to do so; and
  • Provide the tenant with narrow additional advice about the hearing by flagging common defenses, primarily pertaining to notice, that the tenant might be able to raise.

The volunteers will be instructed to avoid conflicts of interest, abide by confidentiality rules, and refrain from revealing any information about the tenant’s situation except to Housing Program staff. The volunteers must refer tenants to legal service providers when issues are beyond the scope of the program, such as when the tenant has a counterclaim, if the tenant does not have a written lease, if the tenant receives a housing voucher or lives in public housing, or when the tenant seeks information in excess of that permitted under the program.

The petition recited that lawyers have reviewed the program and will work closely with the volunteers, evaluating and assisting them.

The petitioners agreed to share data and information about the successes and failures of the program with the Court to allow the Court to weigh the efficacy of the program to determine whether sufficient safeguards are in place to protect the public.

The Court found that the program appears to provide for sufficient training, safeguards, and lawyer supervision so that the volunteers working within the strict limits set forth in the program’s training manual will not engage in the unauthorized practice of law.

The Court approved the program on a provisional, pilot basis for a term of three years, unless extended or terminated by the Court. Petitioners are required to submit annual reports including the date and metrics discussed in the order as well as a written summary of the activities of the program.

*Appellate Case No. 2023-0016089 (February 8, 2024)

Housing Authority must exercise discretion in eviction

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Real estate cases can be sad, and this is one of those. City of Charleston Housing Authority v. Brown* Involved the eviction of a mother from a public housing apartment because her son committed a crime.

The facts, according to the Court, are not in dispute. Katrina Brown renewed her lease with CHA in 2015. Brown’s minor son and daughter were listed as residents and members of her household. Early in 2016, Brown’s son, who was 17 at the time, was arrested a mile away from his home carrying a gun. Two weeks later, CHA sent an official 30-day notice of eviction to Brown. The notice informed Brown that her eviction was based on the lease’s prohibition against violent criminal behavior.

At the magistrate’s hearing, a Charleston detective testified that Brown’s son confessed to an attempted armed robbery that occurred two days before his arrest and approximately one mile from the housing complex. Brown testified that her son was being held in jail, and if he was able to make bond, he would live with his grandmother.

The magistrate found that evictions based on criminal activity provisions of housing lease agreements must be determined on a case-by-case basis and denied the application for eviction based on the testimony as well as factors from federal law.  On appeal, the circuit court remanded the case for factual findings and analysis regarding whether Brown’s eviction was warranted under 42 U.S.C. §1437(1)(6), the federal statute governing public housing leases, which is colloquially known as the “One-Strike Rule.”

The “One-Strike Rule” requires federally-funded public housing authorities and private landlords renting their properties to tenants receiving federal housing assistance to include a provision in all leases stating that drug-related criminal activity, as well as criminal activity that threatens other tenants or nearby residents, are grounds for eviction, regardless of the tenant’s personal knowledge of the criminal activity. The strict-liability, no-fault rule was premised on the idea that public housing tenants are entitled to homes that are “decent, safe, and free from illegal drugs.

In May of 2017, the magistrate issued an order evicting Brown, finding her son’s actions created good cause for eviction. At an appeal hearing before the circuit court, Brown argued that non-drug related criminal activity can only be grounds for eviction if the activity constitutes a present threat to the residents of the public housing facility and occurred in the immediate vicinity of the facility. She also argued that CHA was required to demonstrate that they used discretion in evaluating the circumstances and alternatives to eviction of an innocent tenant before evicting the entire household. She asserted that CHA made no showing that it exercised discretion.

The circuit court affirmed Brown’s eviction. The Court of Appeals found that Brown’s son’s actions created good cause for the eviction. The Court cited a 2007 Massachusetts case that set out the policy reason for the “One-Strike Rule”: Tenants of public housing developments represent some of the most needy and vulnerable segments of our population, including low-income families, children, the elderly, and the handicapped. It should not be their fate, to the extent manifestly possible, to live in fear of their neighbors.

The Court further held that the threat need not be “ongoing” to justify eviction. Then the Court turned to an interesting aspect of federal law, holding the “One-Strike Rule” does not automatically require eviction. Rather, the housing authority must demonstrate that it exercises discretion in the decision to evict. The record must reflect that the housing authority knew it could refrain from invoking the “One-Strike Rule” under the circumstances.

The case was remanded to the magistrate for a hearing to determine whether CHA exercised discretion in deciding to pursue the eviction of Brown’s entire household for the criminal actions of her son.

I’m sure you understand what I mean about this case being sad. It is sad for the mother to be evicted for the actions of her son, and it is sad for the other residents of the facility to be subjected to such criminal activity. This is a difficult situation, and I’m encouraged to know that discretion must be exercised.

*South Carolina Court of Appeals Opinion No. 5941 (August 24, 2022)