Tenants Without Rights: Situating the Experiences of New Immigrants in the U.s. Low-income Housing Market

Georgetown Journal on Poverty Law and Policy

Volume XXVIII, Number 2, Winter 2021

Tenants Without Rights: Situating the Experiences

of New Immigrants in the U.S. Low-Income Housing

Market

Mekonnen Firew Ayano*

Immigrants who recently arrived in the United States generally are not

able to exclusively possess rental properties in the formal market because

they lack a steady source of income and credit history. Instead, they rent

shared bedrooms, basements, attics, garages, and illegally converted units

that violate housing codes and regulations. Their situations highlight the

disconnect between tenant rights law and the deleterious conditions of

informal residential tenancies. Tenant rights law confers a variety of

rights and remedies to a residential tenant if the renter has exclusive

possession of the premises. If the renter lacks exclusive possession, courts

typically characterize the occupancy as a license, treating the renter as a

transient occupant with contractual rights and remedies. Situating the

experiences of new immigrants within the low-income housing

affordability crisis, this Article proposes that courts should steer away

from considering tenant status and its associated rights and remedies as a

function of exclusive control of the premises. Instead, they should enforce

informal tenants’ legitimate interests, impose duties on those who rent out

substandard units, and award damages when the rent paid is

disproportionately high relative to the condition of the premises.

* Visiting Assistant Professor of Law, University of Missouri School of Law. I wish to thank

Helen Alvaré, Wossen Ayele, Steven Bender, Guyora Binder, Andrea Boyack, James Cooper, Mitchell

Crusto, Randy Diamond, Wilson Freyermuth, Derrick Howard, Lucy Jewel, Erika Lietzan, Paul Litton,

Isabel Medina, David Mitchell, María Pabón, Amy Schmitz, and James Wooten for valuable comments

and suggestions; the participants at the John Mercer Writing Workshop, Antonin Scalia Law School

Faculty Workshop, University of Missouri School of Law Faculty Workshop, SEALS Conference,

ClassCrits Junior Scholar Workshop, and the University at Buffalo School of Law presentation for their

thoughtful questions and comments; Cindy Shearrer and Natasha Martinez for their generous help

with library and research resources; and the editors at the Georgetown Journal on Poverty Law and

Policy for their excellent review and editing of this piece. Special thanks to Frank Bowman for reading

early drafts and providing detailed comments; Jane Bestor for thoroughly reviewing a prior draft;

Duncan Kennedy and Joe Singer for invaluable comments and suggestions; the University of Missouri

School of Law, through Dean Lyrissa Lidsky, for generous travel and summer research grants; and my

fellow East African immigrants, who cannot be named here, for providing an invaluable education in

the ways in which African immigrants navigate challenges of finding a place to live and the vicissitudes

of the rental housing in North American metropolises. © 2021, Mekonnen Firew Ayano.

159

160 The Georgetown Journal on Poverty Law & Policy [Vol. XXVIII

I. INTRODUCTION ............................................................................................... 160

II. TENANTS AND TENANT RIGHTS .................................................................... 164

A. Tenant Rights as a Special Legal Category .............................................. 165

III. INFORMAL HOUSING .................................................................................... 168

A. Housing Crisis as a Driver of Informality ................................................ 171

B. Housing Insecurity .................................................................................... 175

C. Eviction Record and Credit History Screening......................................... 176

IV. INFORMAL HOUSING AMONG IMMIGRANTS ................................................ 180

A. The Public Charge Rule and the Immigrant Sponsorship Program ......... 183

V. INFORMALITY AS THE ONLY ROUTE TO RENT A HOME ................................ 185

A. Specific Modes of Informality ................................................................... 187

B. The Precariousness of Informal Housing ................................................. 189

C. Claiming Rights in Informal Tenancies .................................................... 191

VI. REGULARIZING INFORMAL TENANCIES ....................................................... 194

A. The Problem of “Unintended Consequence”............................................ 197

VII. CONCLUSION ............................................................................................... 200

I. INTRODUCTION

Saman,1 an East African immigrant who came to the United States (U.S.)

about a decade ago through the Diversity Visa Program,2 lives with his three

children, spouse, and mother-in-law in a Virginia county, in the basement of a

single-family home. The basement has no kitchen or other facilities, but he has

creatively customized a kitchenette, a bathroom, and a workstation for his artwork.

Sebr,3 another East African immigrant, lives in the same house in a room next to

the homeowner's bedroom. They share a kitchen and a fridge. The homeowner

bought the house some years ago and relies partly on Saman's and Sebr’s rent for

his mortgage payment.4 Neither Saman nor Sebr have a written lease.5

1.

Interview with Saman Tashale, in Washington, D.C. (July 18, 2019) (on file with author).

[hereinafter Interview with Saman]. Names of interviewees are not real for privacy concerns.

2. The Diversity Visa Program is a random selection system that allows 50,000 immigrant visas

annually for individuals from countries with low immigration rates to apply for permanent residence in the

United States. For a discussion of the significance of this program for immigrants from African countries,

see Andowah A. New ton, Injecting Diversity into U.S. Immigration Policy and the Missing Discourse on

its Impact on African Immigrants to the United States, 38 CORNELL INT’L L.J. 1049 (2005).

3. Interview with Sebr Alemu, in Washington, D.C. (July 18, 2019) (on file with author). [hereinafter

Interview with Sebr].

4. Interview with Tam Badhadha, in Washington, D.C. (July 18, 2019) (on file with author).

[hereinafter Interview with Tam].

5. In such arrangements the rents are paid in cash and the agreements are oral. Obtaining a written

lease agreement would be costly for the homeowner and of little use to the renters, given their lack of

language proficiency and the cost of legal services. See Curtis J. Berger, Hard Leases Make Bad Law, 74

COLUM. L. REV. 791, 817–18 (1974).

N

o. 2] Tenants Without Rights 161

Such arrangements are hardly unique in the U.S. low-income housing market.

Studies show that a steadily increasing number of people are living in communal

arrangements—splitting apartments and sharing bedrooms—to cope with the lack

of affordable housing.6 Social inequality, stagnant wages, and rapidly increasing

rents have contributed to this situation.7 A household with two adults who work

full-time at minimum wage cannot rent a two-bedroom apartment in Washington,

DC.8 A full-time minimum-wage worker cannot afford a one-bedroom rental home

in most parts of the country.9 Immigrants rarely find housing anywhere in the

formal market, not only because they lack an adequate and steady income source,

but also because they cannot produce a recorded credit history and confront various

restrictive laws and practices connected to their immigrant status.10 Instead, they

rely on their family, acquaintances, and other social networks to rent shared

bedrooms, basements, attics, garages, and illegally converted units that usually are

insecure and fraught with a variety of health and safety hazards.11 For many, living

in such an arrangement lasts years and may never end for some immigrants.

6. See Mallika Mitra, Forget Splitting an Apartment. These Renters Are Sharing Bedrooms, CNBC

(July 12, 2019 9:29AM), https://www.cnbc.com/2019/07/11/forget-sharing-an-apartment-renters-are-

sharing-rooms-to-save-money.html; Kevin Simpson, Colorado’s “Doubled-up” Households Have Surged Since

the Recession. That Could Prolong the Housing Crunch, COLO. SUN (Oct. 2, 2019 5:05 AM),

https://coloradosun.com/2019/10/02/colorado-doubled-up-households/; Richard Fry, More Adults Now Share

Their Living Space, Driven in Part by Parents L iving with Their Adult Children, PEW RSCH. CTR. (Jan. 31, 2018),

https://www.pewresearch.org/fact-tank/2018/01/31/more-adults-now-share-their-living-space-driven-in-part-

by-parents-living-with-their-adult-children/; Laryssa Mykyta, Economic Downturns and the Failure to Launch:

The Living Arrangements of Young Adults in the U.S. 1995-2011 (U.S. Census Bureau, Working Paper No. 2012-

24, 2012), https://www.census.gov/content/dam/Census/library/working-papers/2012/demo/SEHSD-WP2012-

24.pdf; see also Hope Harvey, Experiences of Doubling-Up Among American Families with Children (2018)

(Ph.D. dissertation, Harvard University), http://nrs.harvard.ed u/urn-3:HUL.InstRepos:39947157 (showing

that prevalence of shared home arrangements varies along racial lines) (“While slightly less than 20 percent

of white adults over age 25 live in doubled-up households, 36 percent of Hispanic adults, 32 percent of

Asian adults, and 31 percent of black adults live in doubled-up households.”).

7. See Whitney Airgood-Obrycki et al., The Rent Eats First: Rental Housing Unaffordability in the

US, Joint Center for Housing Studies, HARVARD UNIV. 3–4 (2021),

https://www.jchs.harvard.edu/sites/default/files/research/files/harvard_jchs_rent_eats_first_airgood-

obrycki_hermann_wedeen_2021.pdf.

8. Laurie Ball Cooper & Ana Vohryzek, Rethinking Rapid Re-Housing: Toward Sustainable Housing

for Homeless Populations, 19 U. PA. J.L. & SOC. CHANGE 307, 308 (2016).

9. Alicia Adamczyk, Minimum Wage Workers Cannot Afford Rent in Any U.S. State, CNBC (July 14,

2020, 12:16 PM), https://www.cnbc.com/2020/07/14/minimum-wage-workers-cannot-afford-rent-in-any-us-

state.html. While the national average fair market rent for a one-bedroom home in most parts of the US is

$1,017 per month and $1,246 for a two-bedroom home, a family of four with poverty-level income in the

country cannot afford monthly rent of more than $655. NAT’L LOW INCOME HOUS. COAL., OUT OF REACH

2020 2 (2020), https://reports.nlihc.org/sites/default/files/oor/OOR_2020.pdf [hereinafter OUT OF REACH 2020].

10. See Daniel Edwardo Guzmán, There Be No Shelter Here: Anti-Immigrant Housing Ordinances &

Comprehensive Reform, 20 CORNELL J.L. & PUB. POL'Y 399, 414–22 (2012); STEVEN BENDER, TIERRA Y

LIBERTAD: LAND, LIBERTY, AND LATINO HOUSING 73–93 (2010); Charu A. Chandrasekhar, Can New

Americans Achieve the American Dream? Promoting Homeownership in Immigrant Communities, 39

HARV. C.R.-C.L. L. REV. 169, 182–91 (2004) (discussing mortgage lending discrimination faced by

immigrants and variations among immigrants in the U.S. based on citizenship status, length of residence,

and country of origin).

11. Jill S. Litt et al., Housing Environments and Child Health Conditions Among Recent Mexican

Immigrant Families: A Population-Based Study, 12 J. IMMIGRANT & MINORITY HEALTH 617, 617 (2010);

Michael H. Schill et al., The Housing Conditions of Immigrants in New York City, 9 J. HOUS. RESEARCH

201, 226 (1998).