Pump the Brakes on Our Government Eviction Machine

I wrote a shorter version of this article that was originally published June 17th by The Hill:

“Do you want to pay and stay?”

As you read this, a variation of this question is being asked in eviction courts all across the country. It may be repeated even more often in informal conversations between landlords and tenants in the days leading up to a court hearing. The scenario is this: the tenant was unable to pay their rent on time, and the landlord responded by filing an eviction case in court, sometimes as soon as the day after the rent was due.

Yet the landlord is happy to let the tenant “stay” if they “pay”--although the payment owed is no longer just the rent. It now includes court filing fees, late fees, and often attorney’s fees, adding hundreds of dollars on to the rent amount the tenant was already struggling to come up with.

For tenants, this is a rough deal. But it’s a deal they often take, since the alternative is a court order and police action that uproots their family from their home. There is no national data on the pay-and-stay phenomenon, but my experience with tenants, property managers, and landlord attorneys suggests that nearly half of all eviction filings end up this way. That guess is bolstered by a couple of recent studies of eviction filings, including an analysis of eight million court records by a team that included the legendary Matthew Desmond, sociologist and Pulitzer-Prize-winning author of Evicted.  

These studies, and the scenes we witness in court each week, all point to a serious problem: our government runs a cheap but ruthlessly efficient collection and repossession machine for the benefit of landlords, particularly corporate landlords. But with that problem comes an opportunity: we the people run this machine, and we can decide to pump the brakes.

Fast, Cheap, and Easy

My home state of Indiana has one of the nation's highest eviction rates. That is in large part because our lawmakers and courts choose to make evictions remarkably fast (as quickly as ten 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 non-payment, and our state has neither rent control blocking big rate hikes nor a good-cause requirement for a landlord refusing to renew a lease.) Indiana is worse for tenants than many other states, but nearly all states make eviction filing a snap, as Desmond et al found in their study of court records from dozens of jurisdictions across the country.

The beneficiaries of the government eviction mill are the ever-expanding institutional aka corporate landlords that are asserting their dominance in communities across the country. These mega-companies file for eviction much more quickly than the vanishing breed of mom-and-pop landlords. For example, Indianapolis Star analysis of the 2021 eviction filings in our community showed that 88% of the cases were initiated by corporate landlords.

I mentioned that the pay-and-stay deal is a bad one for tenants. 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. As reported in the journal Social Forces, Desmond et al.’s data showed that almost half of the cases were “serial filings,” multiple evictions filed on the same household. The researchers also interviewed dozens of property managers, attorneys, and court officials, and came to the clear conclusion 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.

Courts acting as “an extension of the residential rental business” is not exactly the textbook definition of due process, is it? Desmond et al. estimated that each 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 $500.

Housing researchers Philip Garboden and Eva Rosen published a similar 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.

When it came to describing the role our government plays in this process, Garboden and Rosen were even more blunt 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—but it is symbolic as well. An eviction filing serves to align the financial position of the landlord with a larger apparatus of civil justice, which deprives the tenant of any recourse short of payment.   

As Garboden and Rosen point out, this fast/cheap/easy path that our courts provide to landlords is not enjoyed by other creditors. The researchers found that landlords were well aware of their privilege, so they eagerly used the court system to jump the line in front of tenants’ other obligations like utilities, food, healthcare, etc.:

The landlords in our sample are nearly unanimous in their assessments of the power of this 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.

Pumping the Brakes

Landlords taking advantage of a court system designed for their benefit is not exactly shocking news. 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 others don’t have access to?

No, says our law school clinic student Steve Nisi in an article published in the June 2023 issue of Res Gestae, the journal of the Indiana State Bar Association. (Adam Mueller, executive director of the wonderful Indiana Justice Project, and I are listed as co-authors, but Steve did the lion’s share of work making this excellent argument.) As Steve points out, the cliché that the wheels of justice move slowly is usually quite true. Except for evictions, our courts provide no such fast track to collecting and enforcing other forms of debt: “Imagine a homeowner that 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.”

Beyond this unparalleled speed, the typical court order requiring a tenant 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 the law has been settled for generations: courts are supposed to strongly favor awarding only money damages instead of what is called equitable relief—the 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.”

The Indiana Justice Project focuses on the harm evictions causes to mothers, pregnant moms, and young children. So Steve worked with Adam to lay out the data showing that these tenants are disproportionately subjected to evictions and are also very likely to experience serious physical and psychological harm when they are displaced. I can reveal here that the working title for this particular article called for courts hearing eviction cases to “Slow the F— Down!”

Slower, More Expensive, More Difficult

Desmond et al. conclude their startling analysis of millions of serial eviction filings by lifting up two possible policy solutions: 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:

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, 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. 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. Settlement conferences are mandatory in our state’s foreclosure actions. The court rule we called for would require landlords to show as part of a court eviction filing 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 put an end to the current phenomenon of landlords rushing to court for a “gotcha” filing within days of a tenant being late on rent. It would 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 which can prevent homelessness.

Not-So-Cheap.  Desmond et al. and Garboden and Rosen all agree that an obvious and tangible barrier to serial eviction filing is simply to increase the costs. They are right. The landlords Garboden and Rosen interviewed made it clear that they were motivated by the inexpensive cost to, as they write, “leverage the police power of the state.” Recent analysis by Eviction Lab researchers showed that higher filing fees lead to lower eviction rates, even in poor states like Alabama. If our government is going to operate a for-hire collection and enforcement apparatus, let’s at least make it less of a bargain.

Not-So-Easy.  Steve Nisi says that the default remedy for a landlord who is owed rent money should be a court order that compels the tenant to pay what is owed. That is hardly a radical idea, since it would be 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?  

In addition, our communities should protect tenants by requiring a landlord to show good cause for refusing to renew their leases, and we should limit rent spikes via rent control rules. We should adopt “clean hands” requirements to block landlords with housing code violations from evicting tenants, and allow tenants to demonstrate that poor housing conditions are a defense to non-payment of rent. Since we control the eviction machine, we can even decide to shut it down on occasion of health, economic, or weather emergencies, as we proved to great effect with the Centers for Disease Control’s Covid-triggered eviction moratorium that prevented 1.5 million evictions.

To enforce these additional legal protections for tenants, we need to fix the fact that 90% of tenants go to eviction court without an attorney, while landlords virtually always have a lawyer. 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 a single instance was a tenant represented by counsel. When the very roof over a family’s head is at stake, we need to follow the lead of the communities who have ensured that tenants have a lawyer by their side.

Those lawyers, along with new rules slowing down the process and making evictions the exception rather than the norm, would represent a much-needed commitment to the due process of law. Which means they would go a long way toward pumping the brakes on our runaway government eviction machine.