Making Tenant Rights Real with a “Civil Gideon”

Every year, thousands of tenants appear in housing court without legal representation. For people facing eviction, a single hearing can determine whether they keep their home or face homelessness. The experience of one Maryland tenant, Latashia Pettiford, illustrates how access to counsel can determine whether property rights exist only on paper or actually can be enforced in practice.

Latashia Pettiford rented a home in Baltimore from Next Generation Trust Services. Over time, the property’s condition deteriorated to the point of becoming uninhabitable. Ms. Pettiford repeatedly informed her landlord that her apartment had no working heat, faulty electrical wiring, mold, and a leaking ceiling. Despite receiving notice of these dangerous conditions, the landlord failed to make the necessary repairs.

As a consequence, Ms. Pettiford spent thousands of dollars paying for repairs herself, keeping her family warm without a functioning furnace, and replacing most of her family’s belongings after faulty electrical wiring caused a fire. When Ms. Pettiford withheld rent to compel the landlord to address these hazards, the management company responded by filing an eviction action against her for nonpayment of rent.

Ms. Pettiford obtained pro bono counsel from the Baltimore-based Public Justice Center and appeared in court to contest the eviction. She attempted to explain that she had withheld rent because of the dangerous living conditions. The judge, however, warned that she “will be out by midnight tonight if she wants to claim it’s uninhabitable.” Faced with the threat of immediate eviction, Ms. Pettiford abandoned her defense.

Ms. Pettiford appealed, and the Maryland appellate court ultimately held that the trial court had improperly prevented her from presenting her defense. According to the Public Justice Center, the appellate decision allowed Ms. Pettiford and her children to remain in their home. That housing stability enabled Ms. Pettiford to complete her bachelor’s degree in psychology and begin a master’s program, while her children were able to finish high school and attend college.

The property law doctrine at the center of Pettiford’s case was the implied warranty of habitability. One of the landmark decisions recognizing this doctrine is Hilder v. St. Peter, a 1984 case from the Vermont Supreme Court. In Hilder, a tenant rented an apartment with serious defects, including broken windows, inadequate plumbing, and unsafe electrical wiring. The Vermont court held that modern residential leases contain an implied warranty of habitability and reasoned that tenants may raise a landlord’s breach as a defense to nonpayment of rent.

As the Hilder court explained, landlords have a duty to ensure rental property is “safe, clean, and fit for human habitation.” Hilder marked a shift away from the traditional view of residential leases as mere conveyances of property toward the modern understanding that a lease is a contract between the landlord and tenant under which the landlord promises to provide and maintain habitable property in exchange for the tenant’s promise to pay rent.

“Fit for human habitation” means the property must be free from serious conditions or defects that pose a danger to the health, safety, or lives of the people living there. The court expounded: “Today’s tenant…seek[s] not merely walls and ceilings, but also adequate heat, light and ventilation, serviceable plumbing facilities, secure windows and doors, proper sanitation, and proper maintenance.”

Tenants may assert a landlord’s breach of the warranty of the habitability as a defense for nonpayment of rent. The tenant must show that: (1) the landlord had notice of the defect and failed to repair it within a reasonable period of time, and (2) the defect, affecting habitability, existed during the time for which rent was withheld.

Ms. Pettiford had a right to assert the landlord’s breach of the warranty of habitability as a defense to the eviction action for nonpayment of rent. Had the judge followed the law and allowed Ms. Pettiford to present evidence, she could have cited the dangerous conditions affecting the habitability of the home and threatening her health, such as the lack of heat, faulty electrical wiring, mold, and leaking ceiling. The landlord received notice when Ms. Pettiford repeatedly informed them of the dangerous conditions, and the defects existed at the time the rent was withheld, namely the five months from June through October 2018. Accordingly, the Maryland appellate court held that the trial court erred in precluding her from raising her defense.

After obtaining legal representation, pursuing an appeal, and a year of litigation, Ms. Pettiford was finally able to vindicate her rights and stay housed. Most tenants do not have access to comparable legal resources. In 2020, approximately 96 percent of landlords appeared in eviction proceedings represented by attorneys, compared with only about 1 percent of tenants. Recognizing this disparity, Maryland established the Access to Counsel in Evictions (ACE) program in 2021 to help low-income tenants facing eviction.

Five years later, ACE has transformed the lives of thousands of Maryland tenants. During its first reporting period, the program resolved 9,196 cases and provided assistance to approximately 21,000 Maryland residents, including 9,100 children. Among tenants seeking to remain in their homes, 88 percent were able to do so with ACE representation. More than one-third of tenants reported that they had no housing alternative if evicted.

Beyond improving outcomes in individual eviction cases, ACE is helping address persistent inequities in Maryland’s housing market and justice system. The program has reached communities most disproportionately affected by housing instability with approximately 86 percent of clients identifying as non-white and 72 percent identifying as women. ACE has also provided a significant return on investment in economic value for the state. Maryland estimated that every dollar invested in the program generated approximately $3.04 in fiscal and economic returns, producing a statewide impact of $46.7 million in a single year.

Maryland’s ACE program is part of a broader national movement to expand access to counsel in civil cases, commonly referred to as “Civil Gideon.” The movement builds on the Supreme Court landmark case Gideon v. Wainwright (1963) which recognized a constitutional right to counsel for indigent criminal defendants. Indigent civil defendants lack a comparable categorical right to counsel. Civil cases can have equally life-altering consequences by determining whether individuals lose their home, access to healthcare, custody of their children, and even personal liberty.

Since its founding in 2003, the National Coalition for a Civil Right to Counsel has worked with advocates across the country to expand access to justice in civil cases impacting basic human needs, such as housing, healthcare, and child custody. One of the movement’s most significant milestones came in 2006 when the American Bar Association unanimously adopted Resolution 112A urging federal, state, and territorial governments to provide counsel to low-income individuals in civil cases. The coalition also helped developed the ABA’s 2010 Model Access Act and Basic Principles, which continue to guide jurisdictions considering right-to-counsel legislation.

The movement for a Civil Gideon has continued to gain momentum. In 2021, Washington became the first state to establish a statewide right to counsel for low-income tenants facing eviction. Maryland became the second state to do so. Major metropolitan cities such as New York City, San Francisco, Philadelphia, Cleveland, Louisville, and Denver have adopted similar right-to-counsel programs. Like the ACE program in Maryland, these programs have averted the evictions of thousands of low-income tenants, decreased the rates of homelessness, and provided a significant return on investment.

Latashia Pettiford’s experience in Baltimore exemplifies the urgent need for a Civil Gideon in Maryland and across the United States. On paper, the law recognized Ms. Pettiford’s right to live in a habitable home and assert her landlord’s breach as a defense to an eviction action for nonpayment of rent. In practice, the tenant protections were not fully realized without legal representation. Only after obtaining legal counsel and successfully appealing an erroneous lower court decision was Ms. Pettiford able to vindicate her rights and stay housed. Most low-income tenants facing eviction are not as fortunate.

Maryland’s ACE program illustrates that access to counsel improves outcomes for individual tenants facing eviction. It also strengthens the integrity of the civil justice system by ensuring that housing courts resolve disputes based on the merits of the claims rather than a tenant’s ability to navigate the complexities of landlord-tenant law. Closing the civil justice gap is critical for ensuring that every person can protect their rights, meet their basic needs, and live with dignity.

Amanda Scott Daigle is a law student at the American University Washington College of Law with an interest in civil rights, legal aid, and public policy.

Image: Catboy69, Lawrence Tenants Members Advocate for Tenant Right to Counsel.