The legal processes used to evict – summary eviction proceedings – are fundamentally unfair to tenants. These proceedings were structured to privilege landlords and disadvantage tenants. And because of the racialized nature of landlord-tenant relations, these processes are not only unfair; they are structurally racist. It’s time to do away with them.
Known by many names across the country – summary proceedings, special proceedings, unlawful detainer proceedings – all states have enacted these exceptions for evictions to normal civil process. Summary proceedings disadvantage tenants because, compared to other civil matters, they have accelerated timelines, they limit permissible defenses, they limit adjournments, and they have fewer procedural protections such as discovery and motion practice than ordinary civil litigation. Their origin story tells it all.
They were first devised for eviction cases in the early 1800’s by state legislatures comprised exclusively of white male property owners who were the only people allowed to vote or hold office. These self-serving property owners adopted a simple procedure to get courts to issue eviction judgments and to make it harder for tenants to defend their homes. At the time, Black people were mostly enslaved; white men who did not own land and were tenants were denied the right to vote; and women could neither vote nor own property. Black people, tenants and women were all barred from the legislative process, and all denied any voice in the adoption of the rules that profoundly affect their lives and livelihoods to this day.
Despite the passage of two centuries, all states continue to use these summary eviction processes. Yet, over the course of those two centuries, a conspiracy of public policies and private actions – Jim Crow laws, redlining, exclusionary zoning and the like – has racialized landlord-tenant relations by perpetuating racial segregation, depriving Black people of homeownership opportunities, and relegating them to tenant status in communities with poorer housing conditions and higher rent burdens. The data is clear. Black people are not only more likely to be tenants, they are also more likely to be evicted and to suffer the devastating consequences of eviction – homelessness; disruption of family life; adverse effects on health, education, and employment; and the loss of place and community. Landlord-tenant law has also become far more complex over the past two centuries – housing codes and the warranty of habitability now protect tenants’ rights to livable housing conditions; publicly-funded rent subsidies for the elderly, disabled people and other low-income people have been created on the federal and state levels; and anti-discrimination laws protect tenants from evictions that are motivated by bias based on a growing range of categories.
Eviction is one of the most violent acts to result from a judgment of our civil courts: empowered by a court order, an armed official removes the tenant, the tenant’s family and all the family’s possessions from their home. Eviction has devastating short- and long-term consequences, yet the legal process to evict is one of the quickest and simplest of all legal procedures.
A growing number of jurisdictions are adopting the right to counsel for tenants who face eviction. This is, no doubt, an enormous leap forward that helps level the playing field greatly. But the process to evict people from their homes should be handled on par with other civil litigation.
Indeed, eviction should have more, not fewer, safeguards. A judgment of eviction, if permitted at all, should only be obtainable through a fair process that corresponds to the importance of a home to people’s lives, health, and well-being; the dire consequences at stake for tenants who are evicted; and the complexity of the law. The playing field may be getting more level, but the rules of the game are still rigged.
Andrew Scherer is a professor at New York Law School, policy director of the Wilf Impact Center for Public Interest Law, director of the Right to Counsel Project, and the co-director of the Housing Justice Leadership Institute.