RENT STRIKES AND TENANT POWER: SUPPORTING RENT STRIKES IN RESIDENTIAL LANDLORD TENANT LAW.

• Author: Gowing, Samantha

For more than a century, low-income tenants across cities in the United States have protested and organized together against unjust housing conditions. Yet landlords continue to evade accountability, leaving mold, pests, lead paint, unclean water, and innumerable other issues unaddressed. On top of habitability concerns, the past several decades of gentrification have displaced hundreds of thousands of Black and brown residents from their communities. To address these issues, legal reforms have focused on either housing-market regulation or individual rights devoid of effective enforcement mechanisms. These reforms fall short. Tenant power, not just tenant-focused housing reform, should be a concern of policymakers and legal scholars. This Note focuses specifically on rent strikes as an important organizing strategy that the law can and should better support. Legislation supporting rent strikes has the potential to offer tenants powerful tools as they organize for their communities and secure access to quality and affordable housing. This Note proposes a cluster of four legislative proposals that reflect tenants' ongoing organizing strategies and, if enacted, would enhance tenants' autonomy in their private bargaining with landlords.

TABLE OF CONTENTS INTRODUCTION I. CONTEXTUALIZING RENT STRIKES A. Rent Strikes and Racial Justice B. The Legal Landscape for Tenant Organizing C. Legality of Rent Withholding II. TOWARD TENANT POWER A. Individual Rights B. Housing-Market Regulation C. The Right to Strike D. Reframing Rent Strike Legislation Toward Tenant Power. III. ENVISIONING RENT STRIKE LEGISLATION A. Enhancing Procedural Protections in Eviction Court B. Controlling the Money C. Creating and Enforcing a Duty to Bargain in Good Faith.. D. Employing Rent Withholding as a Solidarity Right CONCLUSION INTRODUCTION

1. First of all, there is no housing crisis.

2. Housing is not in crisis.

3. Housing needs no trauma counselors.

4. Housing needs no lawyers. Housing needs no comrades or friends. Housing needs no representatives. Housing needs no organizers.

5. When we call this crisis a housing crisis, it benefits the people who design housing, who build housing, who profit from housing, not the people who live in it.

6. It encourages us to think in abstractions, in numbers, in interchangeable "units, " and not about people, or about power.

7. We don't have a housing crisis. We have a tenants' rights crisis.

   --Tracy Jeanne Rosenthal, 101 Notes on the LA Tenants Union (1)

   The Boyle Heights neighborhood in Los Angeles is a diverse neighborhood with a large Mexican population. Mariachi players still gather at the entryway to Boyle Heights, known as Mariachi Plaza, to play their music. Some of these mariachis are tenants of a building a few blocks from Mariachi Plaza. In 2016, they received a notice from their landlord that he was increasing their rent by 80 percent. (2) Neither the mariachis nor the other tenants in the building, many of whom had lived there for decades, could afford this steep rent hike. Suspecting their landlord increased rent to price them out, many of the tenants--including some who had not yet received a rent increase--decided to take action and collectively withhold their rent. (3) The strike went on for months. The tenants continuously asked the landlord to meet with them to negotiate. The landlord continuously refused. (4)

   Almost a year after the initial notice of rent increase, the landlord finally agreed to negotiate a deal. Under the agreement, the tenants would pay a portion of the withheld rent and a 14 percent rent increase; the landlord conceded to enter a forty-two-month lease with the tenants and cap yearly rent increases at 5 percent. (5) Additionally, the landlord agreed to allow the tenants to bargain collectively going forward. (6) The Boyle Heights rent strike was a huge success for the tenants, and it has allowed the mariachis to remain in their community with access to stable and affordable housing. But the tenants did not have a strong legal basis for withholding rent, and their success was only possible because of their organizing. They avoided eviction during the rent strike through strategies such as hosting media campaigns to elicit public pressure, picketing outside the landlord's house, and withholding rent in large enough numbers to make eviction inconvenient for the landlord. (7) The law, for the most part, was not on the tenants' side.

   The driving question of this Note is: What would it look like if the law were on the tenants' side? What sort of broad-based, community-driven change might the law help to flourish if it better supported tenants' organizing strategies? Tenants have organized together and used strategies such as rent strikes for over a century. (8) Yet the most common landlord-tenant legal reforms have focused on enhancing individual rights--such as the push for a right to counsel in eviction proceedings--and regulatory policies like rent control laws. (9) Both approaches are important, but their effect will be limited so long as they do not build power for tenants themselves. When tenants lack political power, these reforms often force tenants to rely on lawyers to assert their rights in court and empower policymakers to select reforms on the tenants' behalf. (10) Moreover, these solutions have proven to be woefully inadequate at addressing the overwhelming problems low-income tenants face, especially in gentrifying cities across the country. (11)

   This Note argues that a third approach--enhancing tenants' organizing and collective bargaining power--is crucial to reforming low-income tenants' access to quality and affordable housing. Legal systems alone will not give rise to justice. Rather, change is most likely to happen when people come together to disrupt the political status quo: in social movements, in protests, and in other forms of collective action. (12) Collective action both enhances and goes beyond individual rights and housing-market regulation. It enforces individual rights, allows tenants to gain influence in the political process, and promotes long-term movement building and community-driven change. (13) At the heart of sustained collective action are powerful mass-membership organizations. Mass-membership organizations promote large-scale, coordinated efforts among working-class people and are a strong force in countering political inequality in the United States. (14) Labor unions are a notable form of mass-membership organizations, but tenants also organize through building-specific tenants associations as well as city-wide tenants unions. (15)

   Legal scholars are increasingly concerned with how the law can support the growth of mass-membership organizations. For instance, Professors Kate Andrias and Benjamin I. Sachs have explored how the law can facilitate the conditions necessary for poor and working-class organizations to flourish. Some of these proposals include providing avenues for obtaining resources and funding to organize, freedom from retaliation, and the meaningful opportunity to bargain collectively. (16) Others have drawn comparisons between labor unions and social movements, (17) as well as between labor law and other sectors where mass-membership organizations are prevalent. (18) Christopher Bangs has even proposed potential statutory frameworks that would support tenant organizing, including laws to protect individual tenants' right to organize without retaliation and tenants unions' right to self-fund. (19)

   This Note adds to this developing literature by focusing on how legal reforms can enhance an important element of tenants' collective bargaining power: the rent strike. (20) Rent strikes take place when tenants decide to collectively stop paying rent. Such strikes are only one tool in the larger bargaining strategy. Because they are risky for tenants and expose tenants to a heightened threat of eviction, rent strikes typically follow extensive attempts to bargain with the landlord and otherwise protest the issues the tenants are facing.

   Rent strikes are often frowned upon for being too radical and for going around, rather than through, the legal system. (21) However, strikes not only enhance tenants' collective bargaining rights but also enable them to resist oppression. The current landlord-tenant structure plays a key role in systemic oppression and cycles of wealth disparities in the United States. In other areas of the law--namely, labor law--legal reformers have supported collective bargaining power as a means of disrupting systemic oppression. The National Labor Relations Act's key ambition was to address the imbalance of bargaining power between employers and employees. (22) When workers strike, they gain bargaining power by withholding something of value from their employer--their labor--without being fired. (23) Policymakers and lawyers advocating for policy change today should similarly aim to ensure tenants have the power to withhold the value they provide to landlords--their rent--without an unchecked risk of eviction.

   This Note recommends a cluster of four legal reforms that can support rent strikes. In doing so, it seeks to follow a movement law methodology, which calls for grounding legal scholarship "in solidarity, accountability, and engagement with grassroots organizing and left social movements." (24) The purpose of this Note is not to challenge modes of tenant organizing, nor is it to lay out what makes for an effective bargaining strategy. (25) Rather, this Note is motivated by a strategy tenants are already using--rent strikes--and an interest in how the law can better support that strategy. (26) Part I provides a brief history of the role rent strikes have played in movements for racial justice, as well as background on the legality of tenant organizing and rent withholding. Part II explores the shortcomings of the major landlord-tenant reforms, arguing that rent-strike legislation would...