How Eviction Courts Stack The Deck Against Tenants

Introduction

In early 2021, Raymond (a former client whose name I’ve changed to preserve attorney-client privilege) was surprised to receive a letter from his landlord demanding that he immediately vacate his home of several years in Tuscaloosa County, Alabama. Elderly and disabled, Raymond regularly paid his rent on time and rarely interacted with the management company. During the pandemic, he stayed indoors and kept to himself to avoid exposure to the coronavirus, and like many he lost his primary source of income. To make ends meet, Raymond cut costs wherever he could, spending less on groceries and taking his medications less frequently in order to stretch out his prescriptions. So when the management company charged Raymond extra for property improvements, Raymond’s already-stretched-too-thin income was pushed past its breaking point. 

When Raymond received the letter from the landlord, he thought he was evicted and needed to immediately vacate his home. But eviction is typically a five-stage process that involves a hearing in eviction court. Eviction courts exist to protect tenants from being unlawfully kicked out of their homes. Like all courts, they are supposed to apply the law fairly and equally, and to level the playing field between the wealthy and those without money, the privileged and the most vulnerable. But throughout the eviction process, the odds are stacked against tenants trying to assert their rights. In practice, eviction courts are not the great equalizer, but rather part of the machine driving a national eviction crisis.

Here’s how the eviction process works against tenants at every stage. 

Stage One: A Chance to Remedy 

The first stage requires landlords to give tenants notice, like the letter that Raymond received. If the landlord wants to evict because the tenant is behind on rent or has violated the lease in some other way, then the tenant has a specified time period to fix the problem. How long depends on local law. In Chicago, for example, tenants have five days to pay unpaid rent, while in Tuscaloosa, Alabama tenants have seven days to fix a lease violation. 

Landlords are also legally required to provide an opportunity to redress the cause for eviction, which involves paying back rent or addressing other violations. But not all landlords do so and often do not face consequences for violating the law. The Lawyers’ Committee for Better Housing (LCBH) in Chicago tells the story of “Michael,” one of their clients who received a notice to terminate his occupancy after another tenant in his senior living facility made false allegations against him to management. Michael made multiple calls to the landlord in an effort to resolve the issue, but those calls went unanswered. He was eventually summoned to appear in court. Because landlords need only to show that they provided a termination notice to initiate the eviction process in court, there was no protection for Michael when his landlord failed to respond to his outreach. 

Stage Two: Serving Notice and Summons to Appear in Court

If the issue is not resolved by the specified time, then the landlord will file what’s called an “unlawful detainer action” against the tenant in eviction court, formally asking the court to force the tenant to leave the property. Before that happens, courts must provide tenants with the chance to be heard before a judge or jury, and local laws specify how notice of the hearing, or summons to appear, must be provided—for example, in person versus posted on the door, which member of the household has to receive the notice, and what the notice must contain. Typically, this notice must include a description of the issue driving the eviction and the date of the hearing. 

Many tenants do not actually receive notice and can’t defend themselves against eviction proceedings they don’t know about. This was the case for Joseph Gelletich, who in 2019 was evicted from his home of nearly 30 years in Washington, D.C. Gelletich was not aware he was being evicted, never received a summons to appear in court, missed his hearing, and, as a result, automatically lost his case. He became homeless for a year.

Gelletich’s case is not uncommon. A recent investigation by DCist found that two notorious process servers routinely failed to provide tenants notice of eviction proceedings and then falsified records, leading to thousands of unlawful evictions. They delivered notice in person in fewer than 1 percent of cases, compared to other process servers in the city, who managed to find tenants at home 40 percent of the time. Process servers submit sworn affidavits confirming that notice was in fact provided, but a review of their affidavits over a two-month period found discrepancies—such as signature mismatch, incorrect personal information, and geographic impossibility, among others—in over 600 cases. 

These flaws likely would have resulted in dismissal of the case had judges scrutinized the affidavits thoroughly enough to detect them. “In practice, Superior Court judges who hear eviction cases nearly always take process servers at their word,” the investigation found. When judges fail to question affidavits or ensure that notices comply with procedural requirements, tenants are at risk of being evicted in cases they do not even know exist. 

Process servers get paid for each notice served, so taking more cases without actually serving notices results in higher compensation for less work. That practice also benefits landlords, who can quickly secure eviction judgments against tenants who don’t appear in court. 

Stage Three: The Eviction Hearing

The third stage of the eviction process is a hearing, either before a judge or a jury, where the landlord has to prove that the tenant no longer has the right to occupy the property. Technically, a tenant has the opportunity to argue their case and present relevant evidence to the court, but most tenants are pro se—they’re representing themselves without a lawyer—and they’re very unlikely to succeed. The disparity in representation is hugely consequential. Being represented by a lawyer greatly reduces tenants’ chances that a court will enter an eviction order. An LCBH study found that representation by an attorney decreased the chance of receiving an eviction order by 25 percent. 

LCBH attorneys for Michael—the Chicago tenant who was summoned to court despite multiple attempts to address his eviction—not only helped him stay in his home, they also sealed the proceedings so the record would not affect Michael’s ability to secure other rental housing in the future, and preserved his subsidy from the Chicago Housing Authority. “I could not have done it without the professionalism, compassion, and fortitude that LCBH and my attorney provided,” Michael said. 

And in Pennsylvania, the Neighborhood Legal Services Association tells the story of their client Barbara, who tried to advocate for herself and her ailing sister Margaret when they were evicted. Their new landlord changed the longstanding process to pay utilities without notifying the sisters, leaving them months behind in payments. The judge was unmoved, and entered an eviction order, leaving Barbara and Margaret on the hook for months of outstanding bills, accrued late penalties, and the landlord’s legal fees. The elderly sisters were facing homelessness in the midst of Margaret’s health crisis when a legal aid lawyer with Neighborhood Legal Services stepped in to help. An experienced eviction attorney who understood the system was able to recover some of the sisters’ funds, get late fees dismissed and court fees reduced, and extend their move-out date, giving them time to get resituated.

In other cases, judges simply deny lawyerless tenants an opportunity to participate in the hearing. When Gelletich objected to an eviction date that violated a previous court order, the judge silenced him, according to the court transcript published in DCist. After the judge ordered the eviction, Gelletich tried to speak for the first time, but the judge interrupted him, ultimately calling for security before Gelletich could make an argument. 

Tenants are also often penalized for trivial mistakes such as being a few minutes late to court, regardless of whether the reason is traffic, issues with childcare, or difficulty getting time off work. These tenants frequently have judgments entered against them for failure to appear.

COVID-19 has made this process even more difficult for tenants. When Sommai Peterson appeared at court for her eviction proceeding in St. Charles County, Missouri, she was not allowed to enter the courthouse. Peterson had tested positive for COVID-19 the month before and was still experiencing symptoms. Although a deputy informed the judge in her case that she was denied entry to court for public health reasons, the judge ruled against her for failure to appear and granted a default judgment for her landlord. The judgment was set aside only after a local news station inquired about the decision. 

Other courts have held remote hearings during the pandemic, but these present their own access to justice and due process issues. Technological barriers and difficulty navigating Zoom and other video formats have the potential to limit tenants’ ability to appear and their right to be heard. But whether in person or remote, without the support of counsel, tenants may not have the knowledge of potential defenses they can, and should, raise, or the ability to navigate the laws that could protect them from eviction. 

Very few places guarantee a tenant the right to a lawyer, despite an obvious need for one. A study of Chicago eviction court by LCBH found that 87 percent of landlords were represented in 2019 (up from 76 percent in 2010), while a mere 10 to 12 percent of tenants were represented by an attorney between 2010 to 2019. And before New York City passed a right to counsel ordinance in 2017, 95 percent of landlords were represented in eviction proceedings compared to just one percent of tenants. Since then, at least 41,000 households have received legal assistance in eviction proceedings, a 74 percent increase from before the law was implemented. Since obtaining the right to counsel, 86 percent of tenants have been able to stay in their homes. Last month, Seattle became only the eighth city in the country to provide a right to eviction counsel.

Stage Four: The Judgment

At the fourth stage, the court decides if the landlord has met all the legal requirements to force a tenant to vacate the property. If the court enters an eviction order, the tenant will usually have a few days from that date to vacate. 

A tenant may appeal an eviction order, which could extend the amount of time they can remain in their home, but the process is often opaque and inaccessible. Most tenants do not realize they can appeal and many cannot afford the process. In South Carolina, magistrate judges routinely exercise their discretion to require tenants to make rental payments—even if those payments are in dispute—before they can proceed in the appeals process. When a woman in Effingham, South Carolina attempted to appeal an eviction order concerning a pet deposit she didn’t think she should have to pay, a judge only gave her a few days’ notice to pay $1,050 to proceed with the appeal. Her case was dismissed a week later when she couldn’t come up with the funds. 

For tenants who fall behind on rent as a result of unemployment or medical bills, these fees set an impossibly high financial bar, essentially turning eviction courts into a pay-to-stay system where you must have money to pursue justice. While South Carolina is extreme in this practice, other states also impose appeal bonds, albeit in more forgiving forms. In Texas, for example, tenants can swear under oath they can’t afford a bond to avoid paying it; in North Carolina, low-income tenants don’t have to post bond, and when it is required for higher income tenants, judges can only include back rent if the amounts are undisputed. Even where bonds are not required, tenants may not be able to afford the representation they need to navigate the appeals process, or other filing fees necessary to bring an appeal. 

Stage Five: Removal

In the fifth and final stage, after a court enters an eviction order, a tenant must vacate. This inherently traumatic process can be made even more so by the involvement of law enforcement. While a landlord cannot physically remove a tenant’s belongings or take steps to prevent the tenant from accessing the home, like boarding up the door or changing the locks—though they sometimes try—a landlord can ask the sheriff’s office to carry out the eviction.  

Natalie, another former client whose name I’ve changed to preserve attorney-client privilege, was named in an eviction action and quickly hired me to represent her through the process. After the case was filed, but before a judgment was entered, Natalie’s landlord attempted a “self-help eviction,” changing the locks and trying to move her things to the sidewalk. Natalie immediately called the police to stop the landlord. Initially the police were hesitant to intervene, incorrectly interpreting the complaint as a proper basis for the landlord’s actions. It was only after Natalie called me, and I spoke directly to the responding officer, asserting Natalie’s rights and educating the officer about the illegality of self-help evictions, that the police stepped in. As a result, the landlord failed in his attempt to illegally displace Natalie, and the case ultimately settled. Even at this last stage of the eviction process, tenants face challenges defending themselves and protecting their rights, especially without representation. 

The Long-term Implications of Evictions

While being removed from one’s home is the end of the eviction process, it marks the beginning of a cascade of negative consequences. 

Unstable housing and eviction are linked to negative health outcomes in children, adverse birth outcomes, poor mental health, increased vulnerability to COVID-19, and other harmful health effects. And these effects can persist for years after the event itself.

Eviction records make it more difficult to find a new home. Because eviction records are publicly accessible in most places, any future landlord has access to the information, no matter the outcome of the case. Just being named in an eviction action can mark a tenant as high-risk and undesirable, making it difficult to find replacement housing that is safe, sanitary, and affordable. Evictions almost always result in “downward moves with respect to neighborhood quality,” pushing tenants into areas with higher poverty levels and fewer services. 

And evictions disproportionately affect minority tenants. Black women are more likely to be evicted than Black men or white tenants. Similarly, Latinx tenants are more likely than white tenants to experience discrimination during an eviction. 

Conclusion

Eviction courts are not sufficient by themselves to protect tenants against unlawful displacement. The stories and statistics around eviction proceedings demonstrate the imbalance of power between landlords and tenants, and the procedural inertia of an eviction case. There is no shortage of ways to address the country’s eviction crisis, from creating more affordable housing, to providing rental assistance, to increasing non-congregate housing for homeless populations. Looking at the outcomes of cases when tenants have the right to counsel compared to when they are left to defend themselves, establishing a right to counsel in eviction court is one of the most important and easiest ways to better keep tenants in their homes.