Delaware to Allow Non-Lawyer Representation for Tenants in Eviction Cases

The Delaware Supreme Court adopted a new rule (Rule 57.1) that allows tenants to be represented for free by qualified tenant advocates who are trained and supervised by one of Delaware’s three legal aid agencies. By adopting the rule, Delaware has become the first state to allow non-lawyer representation for residential tenants in eviction proceedings. The new rule expands a previous rule that restricted such representation to landlords. As most landlords in Delaware are currently represented by non-attorneys, the change creates greater parity and gives tenants more options to contest evictions and remain stably housed. The new rule was adopted by the court on January 28 and takes effect on March 1, 2022.

A report prepared by the advisory firm Stout for the Delaware Community Legal Aid Society, Inc. found that landlords in Delaware were represented in 86% of eviction proceedings while tenants were only represented in 2% of proceedings. At the same time, the report found that 81% of unrepresented tenants had a “high likelihood of experiencing disruptive displacement through the eviction process.” The report noted that the cost to file an eviction in Delaware is only $45 and landlords can file evictions for any amount of rent owed. In consequence, evictions were filed in Delaware at an elevated rate even prior to the COVID-19 pandemic, with higher rates of eviction filings in ZIP codes with greater proportions of Black residents. Federal and state eviction moratoriums slowed the pace of evictions across the country, but a backlog of cases is now making its way through courts in states like Delaware, leaving tenants – especially those with the lowest incomes – at great risk of homelessness and displacement.

To support low-income tenants in need of legal assistance, legal aid agencies in Delaware led a coalition of housing advocates and partners from across the state to push for Rule 57.1. In July 2021, the Delaware Supreme Court established the “Committee to Examine Amendment of the Supreme Court Rules to Permit Non-Attorney Representation of Tenants in Residential Eviction Proceedings.” As a result of its examination, the committee recommended the adoption of the new rule.

“We are absolutely thrilled that the court has taken this critical step to help tenants in crisis access help,” said Rachel Stucker, executive director of Housing Alliance Delaware, an NLIHC state partner. “There are few things more destabilizing to a person or family than an eviction, and it is in the interest of all of us in the community to ensure that all families are provided with equal access to representation during the eviction process.”

Legal aid agencies indicate it will take months to hire and train qualified tenant advocates. Even with expanded representation, advocates say more must be done to protect tenants from evictions. Senate Bill 101, sponsored by Senator Bryan Townsend (D-Brookside), would provide such additional protections. The bill would guarantee the right to counsel in tenant/landlord actions for households with incomes that fall below 200% of the federal poverty line. The bill was introduced in 2021 but has since been tabled. Advocacy is needed to urge the legislature to pass the bill in this year’s legislative session.

“The rule change by the Delaware Supreme Court is a thoughtful response to an ongoing eviction crisis,” said Sarah Rhine, manager of the Housing Unit at Delaware Community Legal Aid Society, Inc. “It also creates a way to begin to address the justice gap faced by many Delaware households. However, sufficient funding is needed, and we anticipate that the passage of Senate Bill 101 will further ensure that legal services can meet the demand for representation.”

Rule 57.1 is one of the many tenant protections enacted in response to the COVID-19 pandemic and its devastating effects on low-income households. In 2021 alone, states and localities across the country passed or implemented more than 130 new laws or policies to protect tenants from eviction. The NLIHC Tenant Protections Database tracks new protections enacted since January 2021. If you know of a tenant protection passed after January 2021 that is not included in the database, please contact ERASE Project Coordinator Jade Vasquez at [email protected] or the ERASE team at [email protected].

For more information on Rule 57.1 and the campaign that led to its adoption, contact John Whitelaw, advocacy director at Community Legal Aid Society, Inc., at: [email protected]