Introduction 662 I. The Practice of Tenant Blacklisting 666 II. In Their Own Words: Tenants' Stories 673 A. Yanira Cortes 674 B. Ada Lopez 678 C. Maurice Smith 679 D. Lori Dibble 681 E. Ebony Watson 682 F. Roger Ross 684 G. Elaine Piccione 686 III. The Experience of Tenant Blacklisting: Common Themes 688 IV. Towards Meaningful Federal and State Reform 690 V. Finding More Comprehensive Solutions 693 Conclusion 697 "Until the lions have their own historians, the history of the hunt will always glorify the hunter." (1) (Nigerian proverb)
Every day across the United States vast numbers of residential tenants face the specter of eviction. (2) In New Jersey, where it is estimated that thirty-seven percent of residents are among the ranks of the working poor, (3) one in six tenants faced eviction in the year ending June 30, 2016. (4) The majority of those tenants remain voiceless, without legal counsel or the opportunity to be meaningfully heard in housing court. (5)
A tenant faced with the prospect of eviction and without the effective assistance of counsel is at a particular disadvantage. (6) Without the requisite expertise needed to navigate the intricacies of housing court, she is apt to find herself lost, confused and summarily dispossessed. (7) The aims of fairness and justice are frustrated when, with the peril of eviction hanging in the balance, approximately ninety percent of landlords have legal counsel while ninety percent of tenants do not. (8) There are catastrophic personal and societal consequences of housing displacement and homelessness. (9) To add offense to the injury of eviction, tenants named in an eviction proceeding, no matter the outcome or the context, find themselves placed on damning registries collected and maintained by "tenant reporting services." (10) Tenants whose names appear on these so-called "blacklists" are often denied future renting opportunities, (11) stigmatized, (12) and excluded from the promise of fair housing. (13) At a time of continued rollbacks and dramatic cuts to housing voucher programs, (14) even as the need for subsidized housing continues to exceed supply (15) and waiting lists for affordable units often extend for years, (16) a candidate named on a dreaded blacklist is apt to suffer swift rejection of her housing application and relegation to "the back of the line." (17) In congested housing markets with wait times of three years or longer for subsidized rentals, (18) that tenant can find herself on a path to homelessness. (19)
That tenant blacklisting has been allowed to persist is emblematic of how powerless many tenants--and particularly public housing tenants--have become. The devastating consequences of eviction are compounded when its victims are rendered pariahs, shut out of future renting opportunities because their names appear on a list that functions as a modern-day scarlet letter. Blacklisting compounds the harms imposed by dwindling stocks of affordable rental units, leaving vast segments of the population without the assurance of a safe and enduring place to call home. (20)
Tenant blacklisting is but one manifestation of the many breakdowns in a system that was intended to assure the provision of safe and affordable rental housing for the poor. Its hardships are imposed against a backdrop of scarcity and need. Since 1995, the median cost of rent has risen between 70% and 100%, and yet the median income, particularly for the working poor, has remained largely stagnant. (21) Today, the majority of low-income renters spend more than 50% of their income on rent, with many spending in excess of 70%. (22) A recent study found that a full one-third of Americans struggle to get by on a daily basis. (23) Nationwide, two-thirds of renting families living below the poverty line receive no housing assistance. (24) Notwithstanding those stark realities, rollbacks to government housing vouchers continue (25) and the chasm between those of little or no means and those of vast wealth widens. (26)
Tenant blacklisting compounds the harms suffered by the poor. As part of comprehensive federal and state efforts to realize the promise of safe and affordable housing, the practice must end. This Article aims to strengthen that resolve by telling the stories of some of the practice's victims. Those stories, and countless others still untold, make plain that the problems associated with vindicating the statutory and judge-made rights to safe and inhabitable housing (27) cannot be solved until aggrieved tenants are assured that they will not be stigmatized and denied future renting opportunities should they assert those rights. (28)
Part I describes the practice of tenant blacklisting and its devastating consequences on renters' abilities to secure future housing. Part II recounts a number of stories of tenants who became ensnared in the tenant blacklisting epidemic. Part III assesses the common threads that run through these stories, highlighting the gravity of the tenant blacklisting problem. Part IV discusses both federal and state reform efforts to curb the deleterious effects of the practice of tenant blacklisting. Part V proposes a meaningful step towards a solution: an unequivocal right to counsel for those in housing court.
THE PRACTICE OF TENANT BLACKLISTING
Landlords routinely conduct background checks on applicants for rental housing (29) and set a particularly high bar when vetting candidates for government-subsidized rentals. (30) That harsher lens of review is attributable in part to flawed perceptions of the poor as wrongdoers (31) and in part to lessors' interest in assuring a steady stream of rent income from compliant tenants and, in the case of subsidized housing, from the government. (32) Most essentially, because the demand for affordable housing so vastly exceeds supply, (33) landlords who are in the business of leasing subsidized dwellings to the poor have dramatically superior bargaining power. (34) The tilted playing field leads to inequities that run as common threads from the tenant vetting process, (35) to the mechanics of eviction, (36) to the blacklisting of tenants who, for whatever reason and at any point in the entirety of their rental histories, find themselves named in a landlord-tenant court proceeding. (37)
In exchange for a fee remitted by the prospective tenant when she applies for a rental, the landlord will request a report about that candidate from any one of a number of private, for-profit "tenant screening services." (38) Court systems across the country inadvertently feed the practice as tenant screening agencies readily access public records of landlord-tenant court filings to generate their reports. (39) Using information retrieved from housing court data banks, the service will create a report that indicates whether the applicant was ever named in a landlord-tenant proceeding and, if so, the type of case and the amount of rent or damages sought by the landlord. (40) The reporting system has three major flaws: (1) it provides no context and no mention of the given matters' surrounding circumstances, including case dispositions; (2) the prospective tenant is afforded no notice; and (3) there is no appeal process or assured opportunity for the adversely affected tenant to explain how and why she came to appear on the list. (41)
The report that is issued notes all instances in which that tenant was ever listed as either a plaintiff or defendant in a housing court action. (42) The report reveals nothing about the given circumstances, not even indicating whether the tenant prevailed in the matter--whether the case cited was dismissed, resolved in the tenant's favor, brought by the tenant, or brought by the landlord in error. (43) In addition, there is no statute of limitations built into the system of data collection, and reporting stale claims can readily form the basis for an adverse report about a given tenant. (44)
There is no uniform duty to provide the rental applicant with a copy of the report that she paid for as part of her rental application fee. (45) In many instances, the tenant is unaware even that her name appears on the dreaded list. (46) The registries, privately compiled and administered, are without the due process guarantees of notice and an opportunity to be heard for those impacted. (47)
In most cases, the negatively affected tenant is given no opportunity to clear her name or add context to the report that destroyed her application. She cannot, for example, explain that she in fact prevailed in the listed matter, (48) had a lawful basis for withholding rent, (49) missed a rent payment due to illness, (50) or had an action brought against her in error. (51) Invariably, mistakes are made in reporting. (52) Still, it can take months and even years of dogged persistence on the part of the prejudiced tenant to correct the record, (53) assuming of course that she even becomes aware of the basis for the problem, for instance, by a prospective landlord informing her that her prior eviction history prevented her from receiving a rental unit.
A rental applicant's presence on that list of past landlord-tenant court proceedings will all but assure denial of her rental application. (54) In the words of an industry insider who runs a tenant screening service in New York, "[i]t is the policy of 99 percent [of landlords] to flat out reject anybody with a landlord-tenant record, no matter what the reason is and no matter what the outcome is, because if their dispute has escalated to going to court, an owner will view them as a pain." (55) Instead, that applicant, a presumed troublemaker, will have her housing application summarily denied in favor of the next candidate in line. (56)
For the past several years this Author and her colleagues, Abbott Gorin and David Guzik, have studied the experiences of low-income residential tenants facing eviction in Essex County, New Jersey. (57) Essex County has...