Fast, Cheap, and Easy

My home state of Indiana has one of the nation’s highest eviction rates.² Evictions here are caused by our affordable housing crisis, of course. But other states with far fewer evictions have a housing crisis, too. We evict more often in our state because our lawmakers and courts choose to make evictions remarkably fast (as quickly as five days after a case is filed), cheap (as little as $104 for a landlord to file a case), and easy (most tenants don’t have lawyers, most judges here say unsafe conditions are not an excuse for nonpayment, and our state has neither rent control blocking big rate hikes nor a good-cause requirement for a landlord refusing to renew a lease).³ Indiana has fewer legal protections for tenants than many other states, but nearly all states make eviction filing a snap, as Desmond and colleagues found in their study of court records from dozens of jurisdictions across the country.

The beneficiaries of the government eviction mill are corporate landlords.⁴ As we mentioned in chapter 1, these mega-companies file for eviction much more quickly than the vanishing breed of mom-and-pop landlords—nearly 90 percent of our local eviction filings come from corporations.⁵

We know that the pay-and-stay deal can be very expensive for tenants like Lisa. For landlords, though, it works great. In fact, many eviction court filings are not intended to result in eviction at all. Instead, the landlords are taking advantage of the fast-cheap-easy system to shake down their tenants for rent and fees. As reported in the journal Social Forces, Desmond et al.’s data showed that almost half the cases they reviewed were “serial filings,” multiple evictions filed on the same household.⁶

Sure enough, the attorney for Lisa’s landlord happily agreed to allow her to pay and stay. He says that a strong majority of the cases he files end up this way. He also admits to one of the tactics he and other landlord attorneys use when competing for the lucrative business provided by corporate landlords: they promise to file eviction cases as quickly as possible. The sooner the case is filed, the sooner the extra fees start accruing, and the sooner the tenants feel the court-provided pressure to pay up.⁷

This scheme is fully legal. But after Desmond et al. reviewed records and interviewed dozens of property managers, attorneys, and court officials, they concluded that our courts are being exploited:

In these interactions between owners and tenants, civil courts are not neutral arbiters. We found market actors to be responsive to lax regulation and more than willing to use the courts to collect rent and fees. Courts with low barriers to eviction are frequently contracted by property owners to manage and discipline tenants. In this way, those courts act more like an extension of the residential rental business than an impartial arbitrator between landlords and tenants.⁸

Courts acting as “an extension of the residential rental business” and helping “manage and discipline tenants” does not mesh well with what our students learn in other classes about the constitutional guarantees of due process of law. Desmond et al. estimated that an eviction filing added an average of $180 in fines and fees to the typical renter household. They say that number is likely conservative, and I agree. It is quite a bit lower than the costs we see late-paying tenants shouldering, with typical attorney’s fees alone totaling $300 and more.

While Desmond et al. relied mostly on a mega-data review, housing researchers Philip Garboden and Eva Rosen published an analysis based on interviews with 120-plus randomly selected landlords and property managers in Baltimore, Dallas, and Cleveland. Their results, reported in the journal City and Community, lined up with Desmond et al.’s:

The process of repeated (“serial”) filing for eviction and charging late fees, even on tenants who are expected to eventually pay their rent, is used by some landlords as an additional revenue source… . Far from a trivial fee, larger landlords and property managers use these fees as a secondary source of income, encouraging them to file for eviction on tenants whom they fully expect to pay their rent and remain in a unit. This strategy was described by a number of respondents.⁹

When it came to describing the role our government plays in this process, Garboden and Rosen were even blunter than Desmond et al.:

Filing costs a modest fee, and initiates a legal process that leverages the power of the state both symbolically and physically to encourage the tenant to pay her late rent… . The transformation of an economic transaction from rent to debt is as much a moral shift as an economic one, legitimizing more direct state intervention in the process than other forms of contract enforcement. This intervention is, of course, ultimately material—in its final stage, a law enforcement official will come to a tenant’s home and bodily remove her from the premises if the threat has not prompted her to find the money to pay.¹⁰

Law professor Kathryn Sabbeth, who like me works with law students to advocate for tenants facing eviction, has analyzed eviction courts’ role in the US housing system. Sabbeth points out that the work of removing people from their homes is often assigned to small claims courts. In small claims courts, filing fees are a fraction of the cost of other civil litigation, and tenants are expected to respond much more quickly than other civil litigants. This cheap and fast practice endures despite an eviction being what she rightly identifies as “fairly significant injunctive relief.” Sabbeth concluded that the fast/cheap/easy process for evicting tenants is an intentionally created tool to maximize landlords’ ability to control tenants and extract their wealth: “Short timeframes that rush cases to judgment make the courts less like fora for application of the rule of law and more like asset collection devices or means for forcible removal.”¹¹

Like Sabbeth, Garboden and Rosen point out that the smooth path to action and collection that our courts provide to landlords is a luxury not enjoyed by other creditors. Landlords know it. The researchers found that landlords were aware of their privilege, so they eagerly used the court system to jump the line in front of tenants’ other obligations like utilities, food, health care, etc.: “The landlords in our sample are nearly unanimous in their assessments of the power of this [court case] tool to prompt a tenant to pay back rent. They recognize that poor tenants generally have a number of competing financial demands… . But landlords feel they need the threat of eviction in order for their debt to achieve prominence over their tenant’s other expenses.”¹²

Yet even when the landlords’ only purpose of filing for eviction is to collect rent, that does not mean the harm to the tenant goes away when the case does. As we discussed in the introduction, the moment their landlords filed the eviction claim in court, tenants are branded with the dreaded “Scarlet E.”¹³ Even before tenants know a case has been filed against them, a publicly available court record has been created showing they have an eviction filing.¹⁴

A tenant’s next prospective landlord is likely to check court records or get a screening company’s report that references the court record. For many landlords, that information leads to an automatic rejection of the tenant application—no matter the outcome of the case.¹⁵

So our client Sarah and her two children wasted hundreds of dollars in rental application fees only to be turned down each time because of a past eviction filing. Then they were forced into an extended-stay motel that accepts “bad credit” tenants in return for far-higher costs and no lease protections.¹⁶ After Charles and Autumn were evicted, they paid a whopping $2,500 a month for a hotel room where they and their five children stretched out onto every available bed and floor space to sleep. They also paid another $200 each month for a storage unit to hold the family’s belongings.

Pumping the Brakes

Landlords taking advantage of a court system designed for their benefit is not exactly shocking news. For them, the decision to exploit the judicial system is a no-brainer. But it raises a question for the rest of us: Should our government be providing landlords with a VIP path to court orders and police enforcement that other court parties cannot access?

No, says our law school clinic student Steve Nisi in an article published in the journal of the Indiana State Bar Association.¹⁷ (Adam Mueller, executive director of the wonderful Indiana Justice Project, and I are listed as coauthors, but Steve did the majority of the work making this excellent argument.) Steve makes the same point law professor Kathryn Sabbeth does: the cliché that the wheels of justice move slowly is usually quite true—except when it comes to evictions. Our courts provide no such fast track to collecting and enforcing other forms of debt: “Imagine a homeowner who got down on their luck and failed to make a mortgage payment,” Steve writes. “It would be absurd if the bank came to court ten days after the missed payment, seeking immediate possession of the home. But landlords can.”¹⁸

Beyond this unparalleled speed, the typical court order requiring tenants to leave their home—with the police power of the state at the ready to enforce the order—is an extraordinary benefit to landlords. It is a judicial outcome that other creditors can almost never obtain, especially without years of litigation. That outcome is so rare because of a basic presumption of the law that has been in place for generations: courts are supposed to strongly favor awarding only money damages instead of what is called equitable relief—a judge ordering parties to do a specific act.

Not so with evictions. “Indiana law is clear that an ascertainable economic loss in the form of damages is an adequate remedy at law that rarely warrants equitable relief,” Steve writes. “Yet evictions of tenants from their homes for contract breaches are the opposite of rare, being ordered by the thousands each year across the state.”¹⁹

The Indiana Justice Project focuses on the harm evictions causes to mothers, pregnant women, and young children. So Steve worked with Adam to lay out the data showing that these tenants are disproportionately subjected to evictions. Moms and children are also likely to experience serious physical and psychological harm when they are displaced. I can reveal here a bit of the back-scenes conversation as this article was being written: the working title called for courts hearing eviction cases to “Slow the F— Down!”

Slower, More Expensive, More Difficult

The article’s title changed, but its theme did not. Desmond et al. agreed, concluding their analysis of millions of serial eviction filings by highlighting two policy options: we could slow down the eviction process, or we could increase filing fees.

We should do both. And we should make court eviction orders more difficult for landlord to obtain, too. Here is how that can happen:

Not So Fast

As Steve Nisi points out, the warp-speed pace of evictions is a huge anomaly in our civil justice system. Two years ago, our clinic, along with the Notre Dame Clinical Law Center and the Indiana Justice Project, published a report calling for court rules to make an eviction filing in response to late rent a last resort, not the first step we now allow it to be.²⁰ We outlined a path to do that, including requiring that landlords and tenants engage in mediation before an eviction case can be filed.

This “press pause” rule would have lots of precedent. For example, our local county courts require mandatory mediation for parties who seek civil jury trials, post-divorce-decree litigation, or two hours or more of court time for contested family law hearings.²¹ In home foreclosure actions in our state, settlement conferences are mandatory.²² The court rule we called for would require landlords, before they could file for eviction, to show that they have complied with pre-filing steps, likely with exceptions if the landlord can demonstrate the property has been abandoned or actively harmed.

This kind of a rule would stop the current practice of some landlords rushing to court for a “gotcha” case filing within days of a tenant being late on rent. The delay we request would be short, but it could make a big difference: anyone working with struggling tenants can tell you that a little additional time is often precious. Even an extra week or two before an eviction case is filed could be the time needed for another paycheck or a tax refund to arrive, or a relative or social service agency to come through with the rent owed. Any one of these developments can prevent homelessness.

Not So Cheap

Desmond et al. and Garboden and Rosen all agree on an obvious and tangible barrier to serial eviction filing: increase the fees the court charges to file these cases. They are right. Another study showed that higher fees resulted in both fewer eviction filings and fewer eviction orders, even in low-income states like Alabama.²³ Sure enough, the landlords Garboden and Rosen interviewed made it clear that inexpensive filing fees motivated them to, as Garboden and Rosen write, “leverage the police power of the state.” If our governments are going to operate a for-hire collection and enforcement apparatus, we can at least make it less of a bargain. We should also block landlords from passing on the cost of those filing fees to their tenants.²⁴

Not So Easy

Steve Nisi says that the default remedy for a landlord seeking rent money should be a court order that compels tenants to pay what they owe, not a judge’s mandate forcing them out of their home. That is hardly a radical idea, since orders to pay are the result in almost every other contract case—and landlord-tenant disputes are contract cases. Why should we use our courts and police to routinely displace families from their homes?

Similarly, why should we let landlords use the power of government without accounting for themselves to that same government through a landlord registry? Our clients, like tenants across the country, often struggle to discover which corporation is the owner of the building where they live. Those landlords are particularly hard to find when pressing maintenance needs come up. Most US cities and states do not have a robust landlord registration system, which would be enormously valuable in tracking down and sanctioning bad housing actors.²⁵

In addition, our communities should protect tenants by requiring a landlord to show good cause—sometimes known as “just cause”—for refusing to renew their leases.²⁶ In our state and most others, landlords can simply displace tenants when their lease has expired, without having to state any reason at all. That unchecked landlord power not only disrupts tenants’ sense of continuity and security; it operates as a powerful deterrent when tenants consider reporting bad housing conditions.

One client of ours, Jeffrey, came to court with a dilemma that many clients have presented. Jeffrey showed us photos of two-feet-deep standing water in his rental home basement, a broken door, and exposed electrical outlets, all of which his landlord refused to repair. But Jeffrey is on a month-to-month lease that his landlord can at any time choose to stop renewing, so Jeffrey has never complained to the local health department about the conditions. “I know he [the landlord] will just put me out if I file a complaint, and I can’t afford to just up and move to another place,” Jeffrey says. Research on the positive impact of good-cause protections in California, which is among six states that require a reason for the landlord to evict or not renew leases, shows that those laws would protect Jeffrey’s stability and safety.²⁷

Do you remember the dilemma faced in chapter 1 by our client Jessica and other mobile home owners, who can be evicted from the lot their home sits on even when it is impractical or impossible for them to move their home? States like Oregon and Delaware recognize the unique vulnerability of mobile home lot renters like Jessica. Those states require lot owners to renew leases unless there is good cause not to do so, like nonpayment of rent or breaking reasonable rules.²⁸ Investors who own parks know the significance of these protections, which is why park ownership groups openly advise prospective landlords to avoid “tenant-friendly” states.²⁹

As we will discuss in chapter 7, we should also limit rent spikes via rent control rules. We should adopt “clean hands” requirements to block landlords with housing code violations from evicting tenants. And we should allow tenants to demonstrate that poor housing conditions are a defense to nonpayment of rent.³⁰ Eviction case filings should be sealed from public view, blocking the damages caused by the “Scarlet E.” California and Colorado automatically do just that when eviction cases are filed.³¹

Tenants, including mobile home lot tenants, should have the right of first refusal to buy the property if it is for sale. Remember from chapter 1 about the favorable loan support the federal government provides to corporate purchasers of multifamily homes through government-sponsored entities Fannie Mae and Freddie Mac? That government support should be readily available to tenant cooperatives that want to buy their housing or the land it sits on.³²

Since we control the eviction machine, we can even decide to shut it down during times of health, economic, or weather emergencies. We exercised this power to great effect with the Centers for Disease Control’s COVID-triggered eviction moratorium, which prevented more than 1.5 million evictions, saving families and communities untold disease spread and suffering.³³

All these legal protections for tenants are needed, but without enforcement they will only be paper tigers. So we also need to fix the fact that 90 percent of tenants go to eviction court without an attorney, while landlords virtually always have a lawyer.³⁴ When our state’s supreme court chief justice visited a local small claims court to observe its eviction docket, she watched 275 cases: in not one instance was a tenant represented by counsel. “They all faced the judge and opposing lawyer alone,” Chief Justice Loretta Rush said afterward. “That is not the model of a legal system where the poor, disadvantaged, and vulnerable are protected.”³⁵ We need to follow the lead of the communities that have ensured that tenants have a lawyer by their side when the very roof over the family’s head is at stake.³⁶

Tenant advocates often package these protections together and label them as a Tenants’ Bill of Rights.³⁷ That phrasing is on target, since these changes would ensure that the due process of law finally applies to tenants as well as landlords. And that would go a long way toward pumping the brakes on our runaway government eviction machine.