If you read Parts I & II you know that I called for the creation of an Access To Justice Commission in Rhode Island. While not a panacea for ensuring that every unrepresented low-income resident is represented if summoned to court, its creation would be better than the patchwork lottery roll-the-dice system currently in place.
Economically distressed people have intense insecurities regarding numerous life issues that many of us either take for granted or ignore altogether. From what I’ve observed professionally and studied over the years, there is no greater insecurity than in keeping your home. To highlight this insecurity that is visited one way or another on the poor, I am focusing on the issue of evictions.
Semayne'sCase (1604) involved a creditor seeking to obtain a deceased debtor’s property in satisfaction of a debt. When the Sheriff attempted to serve a writ of attachment to secure the debtor’s property located in his residence, he was rebuffed by the debtor’s brother, a joint tenant of the dwelling. The creditor, Semayne, went to court to obtain an order enforcing the writ of attachment. He prevailed.
In reporting this case, Sir Edward Coke, the Attorney General of England, wrote regarding the rights of Englishmen, “the house of every one is to him as his castle and fortress, as well for his defence against injury and violence as for his repose.”
In our modern vernacular, “man’s home is his castle.”
Like pretty much everything, this comes with a few caveats. For example in the 17th century Sheriffs could break and enter to recover seisin over real estate; Sheriffs could break and enter on the king's business after a request for entry is refused; Sheriffs could enter when the door is open;
The householder's privilege did not extend to strangers or their goods. Roughly a 160 years later in Massachusetts, James Otis in Paxton v. Gray challenged the service of general writs of assistance that permitted the authorities to enter onto another’s property without specific cause. From Otis’s work on this case, the Fourth Amendment was born.
Clearly the above examples involve state actions. The Constitution, federal and state statutes, and a panoply of rules at all levels require that the authorities can only enter a person’s property only upon a showing of probable cause or the existence of an exigent circumstance.
In relation to the state, a man’s home is truly his castle. But for a tenant residing in another’s property, the protections are not quite as robust. The rental of the property generally involves a spoken agreement or a written contract. The rental can be for storage, a business, or a residence. An agreement or contract can be as simple or as complicated as the parties wish to make it. While some rentals are secured by a simple handshake signifying assent to the terms of the rental, written contracts specifying all the terms and responsibilities of the respective parties are generally favored.
Whether rented storage or business space, or a rental of a residence, all have some things in common: a specified rental payment, a date when the rent is due, a duty of the renter to not cause any damage to property, a duty of the owner to ensure that the property maintains and continues to maintain its habitable condition, the duration of the rental period, and a process to inform the other party of changes to be made that affect the agreement/contract (e.g., notice of move out, increase in rent).
In essence, whether an informal agreement or a written contract, there has to be an offer, acceptance, and some form of consideration (e.g., cash for keys to the property) and an understanding by the parties of the terms, rights, and obligations involved in this transaction. In short, a meeting of the minds and some performance cementing the deal.
My focus is on a residential leasehold. Each jurisdiction has statutes detailing the obligations of the parties and the process of terminating the lease because one of the parties is in breach of the rental agreement. It is the breach of one of the parties I really want to focus on. And to that end, I want to focus on an alleged breach of contract between a landlord and low-income tenant.
After the holidays, looking for some light reading, I happened upon a paper published by the Federal Reserve Bank in Philadelphia (FRB - P) entitled Eviction and Poverty In American Cities. For those who think I read only A People's History of the United States by Howard Zinn or Das Kapital by Karl Marx, I think we can all agree that the Federal Reserve Bank is not a lefty think tank.
Before getting into the findings of the FRB - P working paper, let me say that I do not believe that each low-income tenant is a Saint or that every landlord is a sinner. To the contrary, some tenants are abusive deadbeats, and some landlords genuinely care that their property is maintained to code and work with their tenants.
With that said, the FRB-P is concerned not only with the number of evictions, but also focuses on the consequences of these evictions. The paper concentrates on new data sets based on housing court records from Cook County (Chicago) Illinois and New York City. From there they are able to link that data with already existing broad data sets to derive the paper’s findings and conclusions. The data documents evicted tenants’ trajectories over several years before and after their evictions.
The paper’s authors, for all you math fans, use an instrumental variable (IV) research design “that relies on the random assignment of cases to judges who systematically vary in their tendency to evict.” In other words, they’re not trying to cook the data in order to prove a preexisting conclusion.
The tenants in the paper’s linked housing courts differed substantially from randomly chosen tenants who lived in the same neighborhoods. These tenants had lower incomes, lower employment, less access to credit, and more debt in collections. In other words, these tenants suffer from multiple insecurities. Add to that the fact that this found that the evicted tenants were predominantly low-income and minority households. The non-payment of rent was the most frequent grounds to an eviction action.
Finally, the FRB-P working paper notes that there are two million eviction cases filed each year. This number is derived from a data set compiled by the Princeton Eviction Lab that estimates that two million cases were filed each year since 2002. The paper notes that this may be a conservative estimate noting that an alternative data point obtained from the 2017 American Housing Survey showed that about 800,000 renter households were threatened with an eviction notice during a three month period, which annualized comes to 3.2 million evictions a year. Most filings alleged non-payment of rent.
As an aside, do not lose sight of the fact that many of these households contain families. So as we look at millions of evictions, bear in mind we're not talking about a couple of million individuals, but individuals and their families.
The authors note that approximately one-half of all eviction filings go to hearing. Based on the data, approximately 3% of tenants in Cook County and 1% of tenants in New York City were represented by an attorney. [Note: The New York percentage of represented tenants can be expected to change over the coming years due the enactment of the New York City’s Right-to-Counsel law that provides each tenant facing eviction with an attorney. That said, as of October 2022 only 10% of tenants facing eviction were represented by an attorney.] Contrast that with 75% of landlords in Cook County and 95-99% in New York being represented by counsel.
As the paper's authors note, the United States is an outlier in the number of residential evictions. Our rate of evictions in 1.5% higher than the next highest country (Canada) and 3.8% higher than the next ten countries for which data is available.
The vast preponderance of eviction cases that do not go to hearing result in repayment of back rent plans while continuing to remain current on each month’s rent, thus permitting the tenant to continue to reside in his rental. An agreement will be filed with the housing court, the breach of which will be grounds to remove the tenant from the property. The remainder of agreements involve the setting of a move out date.
Whether a seeming straightforward eviction proceeding, or a repayment agreement, or an agreed upon moveout date, the unrepresented tenant - especially the tenants in the cohorts studied here - is rarely if ever the equal to defend herself in a proceeding or negotiations with a seasoned attorney representing the landlord.
In my book, I referenced various legal defenses to an eviction action and invite you to consult with those. But these defenses are more successful if raised by an attorney. In any event, the unrepresented tenant will in all probability get clobbered at hearing, or become so desperate that he will agree to anything - no matter how onerous that might be - in order to go home and still have a roof over his head.
And in my experience, these agreements entered in to by an unrepresented tenant only forestalls the inevitable.
This brings me to the effects that an eviction has on the tenant. Within one/two year(s) of the eviction, they are:
* homelessness (I'll briefly address this in the conclusion)
* increases in residential mobility (spike of 28% over the non-eviction mean)
* increases the probability of staying in emergency shelters (more than 300% of the non-eviction mean)
* both residential mobility and homelessness persist into the second post-eviction year.
* lower earnings in the year after eviction by $323/quarter (or more than 300% the non-eviction mean)
* year two post-eviction, the loss of earnings is greater causing a reduction of $613/quarter
* while the effects of evictions on the labor market are modest, an eviction causing a 1.5 % reduction in the fraction of quarters employed in year one post-eviction, and 1.8% reduction in year two are not statistically significant - however, the impact of these labor market effects fall more heavily one female and black tenants
* eviction causes a reduction in available credit due to the increase in debt, thus lower credit scores
* eviction increases the number of hospital visits in post-eviction year one by 29% and increases mental health related conditions for the post-eviction first year by 133%.
Conclusion
The economic costs to the evicted tenant are staggering; the social costs for the rest of us is staggering as well. By just reading the daily news, we can see that there is an increased interest in opening more shelters to respond to the increase of homelessness in part caused by evicted tenants and their families.
We know that legal representation can prevent evictions and save money in the process. For example, the 2010 Annual Report of the New York State Access to Justice Commission indicated that by placing one attorney in each of 57 courtrooms in the state, the state saved over $100,000,000 in expected shelter expenses.
Legal representation matters. Imagine the extended cost savings from the prevention of lowered incomes, less available credit, and increased hospital visits. Moreover, if we factor into this discussion the impact of stable housing's contribution to stable and safer communities, that's a win-win for all.
When I argue for an Access To Justice Commission in Rhode Island, or better the establishment of the legal right to counsel in civil matters, I'm not letting my liberal freak flag fly. Rather, there are calculable benefits to the individual tenants and to the society as a whole to ensure that, with the assistance of counsel, great harms are prevented.
Or as Benjamin Franklin counseled, we can "do well by doing good."
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