Excerpted From: Andrew Scherer, The Case Against Summary Eviction Proceedings: Process as Racism and Oppression, 53 Seton Hall Law Review 1 (2022) (362 Footnotes) (Full Document)


AndrewSchererThere is a series of books that was popular in the 1990s called Magic Eye. The books contain illustrations that appear at first to be abstract two-dimensional geometric designs. But when you take the time to look at the illustrations carefully and you squint your eyes just so, discernable three-dimensional images--of animals, faces, objects--emerge out of those abstract designs. As with the “magic eye” images, sometimes when we look at something, we do not see what it really is, or what is really happening. It just is what it is, has been what it is as long as anyone can remember, and has survived that way without challenge, without question, without analysis.

Summary eviction proceedings are like that. Also known in many jurisdictions as “forcible entry and detainer” proceedings,” and in others as “unlawful detainer proceedings,” “special process proceedings,” “summary proceedings,” or “special proceedings,” these truncated, expedited processes by which most evictions are litigated in the United States have, since their adoption, been the way they are. They have been part of the jurisprudential landscape since the earliest days of the republic. Evictions have been handled in summary fashion for over 200 years to give landlords a quick remedy. In effect, summary evictions proceedings provide landlords a speedy method, with fewer procedural tools for tenants to prepare or defend than are available in other civil proceedings. Summary eviction proceedings enable landlords, when they claim nonpayment of rent, expiration of the lease, or other cause, to obtain an expedited judgment to remove tenants from their homes. They are “summary” in the dictionary sense that they are “done without delay or formality: quickly executed.” The underlying premise for that expedited approach is that the landlord's interest in recovering possession so far outweighs the tenant's interest in staying in their home that it warrants exempting landlords from the pace, procedural requirements, and norms of ordinary civil litigation.

The demographic and legal context for tenancies has evolved enormously with industrialization and urbanization over the two centuries since the adoption of summary eviction proceedings. A confluence of anti-Black, racist public policies and private action related to housing and other areas, including employment, education, transportation and health care, has racialized the status of the tenant tenants are disproportionately Black and other people of color. Tenants who have eviction cases filed against them are disproportionately Black, and tenants who are physically evicted from their homes are disproportionately Black. The stakes for tenants in eviction proceedings, of course, could not be higher. Given the paucity of available affordable housing in most places in the United States, when tenants face eviction, they not only risk losing their homes, they risk the very ability to have a home. They face the dire consequences of eviction that can affect every facet of life: leaving them unhoused, fracturing the integrity of their families, crushing their livelihoods, damaging their mental and physical health and their safety, depriving them of their place in community and, ultimately, tearing apart the fabric of their communities. Summary eviction proceedings are structurally racist, and the vastly disproportionate rates of eviction and eviction's dire consequences on Black people have only been exacerbated and brought into stark relief by the COVID-19 pandemic.

The word “evict” derives from the Latin word evincere, which means to “conquer” or “overcome completely.” By design, summary eviction proceedings reinforce a power relationship that maintains the landlord--or “lord of the land”--in a superior position and the tenant in an inferior position in court. White male property owners--the only people permitted to vote or hold office at the time--originally devised summary eviction proceedings to serve their own purposes, to provide themselves the wherewithal to conquer, to vanquish--to evict--their tenants. Summary proceedings, in both original and current race-based practice, reflect the power relationship between landlords and tenants. The summary eviction process is a relic of a long bygone era, crafted in the early days of the republic when landlord-tenant relations were, in most respects, a vestige of medieval feudal land tenure norms.

Tenancies, for the most part, are no longer rural or land-based. A tenant is far more likely to live in an urban apartment than on an acreage of land. With the growth of cities in the two centuries or more since the advent of summary proceedings, landlord-tenant law has become vastly more complex. The landlord-tenant relationship is increasingly governed by common law, statutes, and regulations that have substantially and permanently altered the rights and responsibilities of both parties. These changes include housing, building, and zoning codes; the evolution of the lease from a conveyance to a contract; a host of local, state, and federal housing and benefit programs; the doctrines of warranty of habitability and constructive and retaliatory eviction; anti-discrimination legislation at the federal, state, and local levels; good-cause eviction requirements; and rent and eviction regulations.

The statutory jargon speaks of the landlord “recovering possession,” but in the contemporary urban world, landlords mostly never had, nor did they seek, possession in the literal sense. They generally never occupied the space, nor did they ever seek to occupy it. In seeking eviction, landlords seek to assert control over a housing unit where the tenant and the tenant's family make their home--a thing of value to both parties. But the value to each of those parties is of a very different sort--a place to live on the one hand, and a commodity, a source of profit, on the other. And landlords seek to recover the tenant's home using a legal process devised by their property-owning forebearers that denies sufficient time and procedural protections to provide for fairness and assure a just result. They do so in a forum, an “eviction court,” that thus becomes a “site of social struggle,” addressing “tensions between divergent societal values.” The imbalance, mostly race-based, in these eviction courts is palpable--proceedings are sped through at warp speed; landlords are mostly represented by counsel while tenants are not; the spaces are cramped, filthy, and crowded; and the judges, magistrates, or other decision-makers are expected to handle an overwhelming volume of cases.

It does not have to be this way. In much of Europe and in South Africa, there are far more procedural and substantive safeguards built into the eviction process that serve to avert evictions, not the least of which is the obligation of the government to ensure alternative housing. And in the United States, the measures taken during the pandemic to stem the spread of COVID-19, including court closings, moratoria on evictions, emergency rental assistance programs, and a proliferation of court-ordered eviction diversion programs, showed that the eviction process is not sacrosanct. Moreover, the successful and growing movement to establish a right to counsel for tenants who face eviction is upending the conventional wisdom about summary eviction proceedings. The right to counsel for tenants who face eviction, without question, shifts the power relationship between landlords and tenants. It is often said to level the playing field, and it certainly makes the playing field more level in a most fundamental way. The presence of counsel as of right alters the expectations of the parties and the courts about the process itself. It brings eviction proceedings into the ambit of our adversarial system of justice in which both sides, in theory at least, have the legal resources to use the law to their advantage. But, to carry the analogy one step further, by privileging landlords and disadvantaging tenants with expedited and truncated summary proceedings for eviction, the game that is played on that playing field is still rigged. The right to counsel for tenants makes the playing field more level, but who designed that playing field and to what purpose?

The presence of counsel as of right also sheds light on the nature of the process itself and, like those “magic eye” images in the 1990s, helps make the eviction process and its faults visible in ways that are obscured by the fundamental imbalance created when one side has counsel and the other does not. Indeed, the recalibration of the power relationship in the eviction process and the momentum brought about by the successful campaigns to win a right to counsel provide an ideal perch from which to understand the further changes that are needed to assure fairness and equity in eviction proceedings. This shift of power also fosters a knowledgeable power base that can help bring about those changes.

This Article argues that because of the many ways in which summary eviction proceedings privilege landlords and disadvantage tenants, their very structure is patently unfair. Moreover, because of the racialized nature of landlord-tenant relations, that unfairness--whether it any longer manifests intent or is simply a relic of a bygone era--is structurally racist. This Article explains why the time has come to abandon the use of summary proceedings for evictions and to handle the eviction process on par with other civil litigation in a manner commensurate with the importance of the subject matter, the dire consequences at stake for tenants, and the complexity of the law that applies.

Part I of this Article discusses the act of eviction and its causes and consequences. Eviction from one's home is one of the most wrenching, and violent results of civil litigation; “one of the harshest decrees known to the law.” It imposes devastating short- and long-term consequences for individuals, families, whole communities, and the social fabric. It follows that the process permitting it to go forward should provide more, not fewer, protections than exist for other forms of civil litigation. Part II discusses the racial demographics of a rental housing market informed by public policies and private discriminatory actions that have consistently denied Black people access to the generational wealth and other economic benefits of homeownership, relegated them to the status of tenants, and too-often forced them to live in inadequate, unaffordable housing. Part II also discusses the historic roots of the racial disproportionality of eviction proceedings and eviction of people of color, particularly Black renters. Part III discusses the origins, history, and nature of summary eviction proceedings; the use of process to achieve predetermined results; and why a summary approach to eviction litigation privileges landlords and severely disadvantages tenants. Part IV explains why a summary eviction process that apportions privileges and disadvantages along racial lines constitutes structural racism. Part IV also explains why the right to counsel, as monumental and transformative as it is in eviction proceedings, is not enough. And Part V argues for the dismantling of the summary approach to evictions and replacing it with a system intended to prevent evictions and achieve justice rather than a system that provides a shortcut to eviction.

[. . .]

The use of summary proceedings to evict is a glaring injustice. The truncated, expedited legal process used to evict represents the prioritizationo of profit and property interests over the fundamental human interest in a home. Summary eviction proceedings were conceived and first implemented in an era in which Black people, women, and tenants were barred, de jure, from the decision-making process. For more than two centuries, we have lived with the legacy of a decision made by an empowered minority that denied the rights of and completely disregarded the needs, concerns, and voices of the majority. A conspiracy of discriminatory public policies and private action has racialized that power imbalance and the summary eviction process, unfair since its inception, is also structurally racist.

Winning a right to counsel for tenants who face eviction in a growing number of jurisdictions has been an enormous achievement. It demonstrates that a major shift in the longstanding assumptions and expectations about the highly imbalanced system for eviction is truly possible. The right to counsel is a major step forward toward a more even-handed system of justice that shows that it is possible to achieve change and shift power; it shows that possibility can become reality, especially when the people most affected by an injustice, in this case tenants themselves, insist on that change and organize and agitate to make it happen. The right to counsel is a symbolic victory as well, because it imparts a greater sense of fairness, dignity, and respect to eviction proceedings. The right to counsel has been achieved because advocates, particularly tenant leaders, have thought big, developed a vision for reform, and refused to accept the idea that things cannot change, even where change seems insurmountable.

Achieving the right to counsel should inspire us to seek other victories, to continue to think big, to conceive of and fight for a world in which there are no evictions. The right to counsel gives us the wherewithal to upend the existing power imbalance and, at the least, achieve a legal process for landlord-tenant disputes that is fair and just.

There are many possible alternatives to summary eviction proceedings as we know them in the United States, Ultimately, however, a vision for the law and policies that govern landlord-tenant disputes is a political decision. And that decision can only be fair and equitable if the voices of those directly affected are part of the discussion. As Rasheedah Phillips of PolicyLink has so eloquently put it, “[i]f we have any hopes of fundamentally breaking away from patterns of the past and rupturing the inadequate present, the future can no longer be envisioned only by those with the privilege of time and space to imagine.”

The right to counsel is helping even the playing field. The time has come to change the rules of the game that is played on that field. Summary eviction proceedings must go.

Andrew Scherer is a Professor of Law and the Policy Director of the Wilf Impact Center for Public Interest Law at New York Law School. He is also the author of the treatise, Residential Landlord-Tenant Law in New York.