A Common-Law Remedy for the Eviction Epidemic.

• Author: Miller, Brian M.

TABLE OF CONTENTS ABSTRACT 795 TABLE OF CONTENTS 796 I. INTRODUCTION 797 II. THE HISTORICAL CONVERSATION 803 A. Why Eviction? 804 B. Pressure on Pure Property Rights 806 1. The Contract Revolution 807 2. The Modern Right-to-Housing Movement 810 III. THE REMEDY AND ITS THEORETICAL SUPPORT 816 A. The Landlord's Relationship to the Rental Properties 817 B. The Landlord's Reasonable Expectations 820 C. The Tenant's Interests 823 D. The Public's Interests 826 E. The Balancing Act 827 F. Economic Incentives 830 IV. COMMON LAW JUSTIFICATION 833 A. Supporting Principles from Contract Law 834 1. Applying the Traditional Approach to Contract Remedies 834 2. Applying Common-Law Counterweights to Contract Terms 837 3. The Contract Approach Summarized 845 B. Supporting Principles from Property Law 846 V. CONCLUSION 854 I. INTRODUCTION

The eviction crisis in this country is well-documented. Hundreds of thousands of people are evicted every year, and low-income individuals, racial minorities, and women are disproportionately affected. (1) An eviction may result from a number of things, such as criminal activity by a tenant or tenant's guest, a failure by a tenant to pay rent, or a simple desire by a landlord to move on to another tenant. (2) Usually a landlord's decision to evict a tenant is entirely lawful. Standard contracts for rental housing expressly allow a landlord to evict a tenant under certain circumstances, (3) and state statutes authorize landlords to file "summary ejectment" actions to quickly remove tenants who violate lease provisions. (4) The thesis of this article is that courts should nonetheless consider a monetary remedy instead of eviction in special cases: when eviction would likely result in homelessness, the landlord owns an abundance of rental units, and the landlord cannot show it will make productive use of the unit in the immediate future.

Legal as eviction may often be, it presents a significant hardship to many tenants--especially tenants who are evicted because of rent arrears. (5) When a person or family is forced to move before the end of the original lease term, they must find alternative housing quickly. That is easier said than done. Vacant rental properties may abound, but they may not be practically available to low-income families searching for housing in a pinch. For one, a family who has just been evicted for rent arrears likely does not have much cash on hand for a deposit and first month's rent. Moreover, past evictions typically show up on a permanent record, and many landlords refuse to rent to people with past evictions because of the risk of subsequent default. (6)

Public housing is rarely helpful. If government-funded rental housing ever was abundant and easily accessible, it is no longer. (7) Federal funds have been siphoned off from public housing projects, preventing the construction of new projects to keep up with demand and suppressing the maintenance of existing facilities that are dissolving into disrepair. (8) And, public housing projects that do still operate are often fully occupied with long waiting lists, (9) which may be reserved for people without a history of evictions. (10) The picture is similar for nonprofit-run housing and shelters, which are often packed full and limited to people with "clean" records. (11)

An eviction is therefore often more serious than simply forcing a tenant to move. Such a court decision may practically be a judgment mandating homelessness. And the harsh consequence of abrupt homelessness radiates through all facets of life. (12) Homeless children may miss school, causing them to fall behind and perhaps never graduate. (13) A father or mother who continues to work may be unable to secure a safe place for children during working hours, (14) exposing the children to various dangers like criminal activity or disease. (15) Indeed, a person who has been evicted may be unable to keep a job at all because she lacks the means to get to work or lacks the time to work because she is in search of new housing. (16) On top of it all, psychological research reveals that eviction is a traumatic experience. (17) "Involuntary housing loss," as it has been called, (18) is linked to persistent depressive symptoms. (19) Such symptoms can hamper a person's diligence to pursue change in a variety of areas of life--relational, economic, or otherwise. (20)

All in all, the picture is bleak. Tenants who struggle to stay afloat are cast out into a situation that further inhibits their ability to secure income and stability. (21) It's a vicious cycle. For these reasons and others, the foremost sociologist in the field, Matthew Desmond, explains that "[e]viction isn't just a condition of poverty; it's a cause of poverty." (22)

Commentators have proposed various reforms to combat the eviction crisis. These range from substantive policy solutions like mandating the construction of additional affordable housing or statutory protections against eviction from public housing for the bad acts of guests outside of the tenant's control, (23) to procedural protections like the right to counsel for tenants in summary ejectment proceedings. (24) Substantial attention has been given to reforming or counteracting the "one strike rule" in Section 8 and public housing, (25) which allows entities receiving federal funds to evict tenants after only one incident of drug related activity on the premises. (26) Most of these proposed reforms would likely be helpful and are worth thorough consideration, but little attention has been given to substantive reform in the common law surrounding evictions. Perhaps that should come as no surprise. Valid rental contracts provide for eviction and state statutes allow it when leases are violated. (27) What is left for a court to do except affirm the property rights identified in the contract and blessed by the legislature?

In fact, courts could act to "reform" the law and combat the eviction crisis. In the past, courts, under their common-law discretion, have taken an active role in developing landlord-tenant law to conform to contemporary knowledge and needs. (28) The most visible example has been the oft-noted trend to evaluate residential landlord-tenant issues through a mix of property and contract law principles. (29) Famously, this revolution has birthed the implied warranty of habitability, which allows tenants to withhold rent if the landlord fails to maintain the residential premises in a sufficiently livable condition. (30) Courts recognized the unique challenges posed by housing insecurity in urban centers and responded in accord with renters' reasonable expectations--a hallmark approach of contract law. (31) Because the agrarian characteristics of rural Britain--which originally justified a property-focused approach to leases--had given way to new realities, a common-law "development" was justified. (32)

This article argues that the common-law "revolution" in landlord-tenant law is at least one hurdle short of completion, and that hurdle is the issue of rent arrears. The revolution has enhanced the substantive rights of tenants based on modern realities of rental housing, but it has not substantially swept through the remedies side of the analysis. (33) In other words, tenants today are better positioned to show that their landlord materially breached a lease agreement. But what is the right course of action when a tenant breaches?

The standard remedy is indeed eviction. (34) Landlords reasonably want to avoid housing someone on their property who cannot consistently pay rent, especially when a whole crowd of other potential renters who may be able to pay wait in line. Landlords thus include express provisions in lease contracts allowing them to evict a tenant who falls behind on rent payments. (35) And state legislatures have accommodated landlords by passing statutes expressly allowing civil actions in court to quickly remove such breaching tenants under the force of law. (36)

But it is time for the judicial branch to engage. Just as courts took an active role in coaxing landlord-tenant law to reflect changed circumstances and serve the interest of minimally acceptable housing for all paying tenants, so too they should embrace their common-law role of recognizing changed circumstances and serve the interest of housing stability for more low-income people. What would this look like? Primarily, in some special cases, it would look like choosing a remedy other than eviction, like damages, even when the lease terms allow for eviction. Some landlords own dozens or more rental units geographically distant from their own home, and they rent out most of these properties to strangers. (37) Although these properties are undoubtedly "real" property, (38) their value and relationship to the landlord is in some ways more like that of a collection of goods leased out for temporary use. It is thus worth considering how strong of a right to exclude should rest unwaveringly with the landlord. The landlord's primary interest is an expectation, however reasonable or unreasonable, of a continuous stream of rental income. That interest matters, but it should not be the only relevant consideration. A struggling family's interest in stable housing, the likelihood that the landlord could actually find a paying substitute tenant quickly, and the strain on government resources presented by combatting homelessness after the fact all matter too. (39)

Of course, in any given case these various considerations may shake out differently than in other cases. That case-by-case nuance is precisely why courts should have a greater role in exercising their remedial discretion. (40) As in other contract or property cases, courts often must exercise discretion to determine the most appropriate remedy, even when parties to a lawsuit ask for something different. (41) That sensible approach has not generally entered the picture in landlord-tenant disputes...