A new article in Socius, “Power in the Court: Legal Argumentation and the Hierarchy of Credibility in Eviction Hearings,” explores how courts defer to landlords and their attorneys in eviction court cases for nonpayment of rent. Landlords tend to be more familiar with eviction processes and laws than tenants, which often gives landlords the upper hand in “formal” (court-based) eviction proceedings. The new paper finds that in addition to this power imbalance, courts tend to behave in ways prejudicial to landlords, including by prioritizing landlords’ scheduling preferences over the preferences of tenants, conducting insufficient reviews of landlord claims, and bifurcating claims about the existence of rental arrears from disagreements about the amount of rent owed, forcing tenants to dispute rental debts only after eviction judgments have already been made.
The authors draw on 11 interviews conducted in 2023 with court officials and legal practitioners working in Virginia courts with high rates of eviction. Interviewees included legal aid providers who represent tenants, court navigators assisting tenants, and one judge. The findings are further informed by observations of Virginia eviction court hearings between 2021 and 2023.
The article reveals how scheduling deference awarded to landlords and their attorneys disadvantages tenants in eviction cases. Legal aid providers described how, pursuant to Virginia state law, courts schedule eviction hearings on a day that is convenient to the landlord, without regard for the tenants in the case. This deference enables landlords, particularly those represented by “high-volume” attorneys who manage many eviction cases at once, to routinize eviction proceedings and secure last-minute continuances when they realize a particular case is more complicated. These last-minute changes can have serious implications for tenants, which can range from financial losses from missed work, transportation costs, and childcare costs to eviction resulting from confusion about the correct hearing date.
Beyond scheduling deference, the article describes how court management of eviction dockets makes it difficult for even well-prepared tenants to initiate a legal defense against eviction. Interviews revealed that most eviction hearings are resolved in less than a minute. One legal aid attorney shared that courts run through cases so quickly that some tenants have “barely enough time to get up to the table” before the next case is called. Another noted how self-represented (pro se) tenants do not have time to make a legal argument even when they secure legal information or advice to do so, remarking that “if you are a pro se tenant, you can try to make a legal argument, but nobody’s going to listen to you.”
The authors also found that tenants who disagree with the amount of rent or charges allegedly overdue in an eviction case are often unable to contest these claims. Legal aid attorneys observed that tenants often have misconceptions about whether an initial eviction proceeding will include a review of the amount of rent and other charges allegedly owed. Instead, judges typically solicit confirmation or denial of any debt owed and do not treat disagreements about the amount owed as contested cases warranting further trial. One legal aid attorney explained that judges often take admission of any rent due as sufficient to make a judgement regarding eviction and order possession returned to the landlord, while allowing the tenant to appear later to dispute the amount due. The authors explain that courts tend to consider this approach more efficient for managing their caseloads but emphasize that the strategy results in many tenants being formally evicted and removed from their homes without consideration of tenants’ rights and possible legal defenses against the eviction case. Similarly, the interviews revealed that courts often fail to review evidence related to landlords’ claims about the amount of money owed by tenants, even when the amount is properly contested by the tenant. Interviewees discussed how courts often trust that landlords and their attorneys are accurately reporting the amount of rent owed by tenants, without reviewing landlords’ rent ledgers. Even when courts do review rent ledgers to confirm the amount, interviewees emphasized that these ledgers can contain inaccurate or illegal charges, with one legal aid attorney sharing that 50% to 60% of landlord rent ledgers they had reviewed were “just wrong.” Legal aid attorneys suggested that ledgers may include rent amounts that are inconsistent with contracted rents, unlawful charges such as late fees that are higher than what is permitted by law, and attorneys’ fees included in the total amount overdue even when attorneys are neither contracted for in the lease nor ordered by the court.
The authors conclude that achieving a truly just eviction process requires that courts give tenants sufficient time and notice to prepare and deliver a legal defense to their eviction cases, review the evidence presented by landlords seeking eviction, and take seriously reports of pervasive and substantial errors in rental debt. The authors recognize that courts and legal aid providers alone may not have the capacity to tackle the large, unmet need for unbiased reviews of rental debt but observe that these entities can reform scheduling and docket management practices so that tenants can meaningfully participate in eviction hearings. Outside of the court room, the authors call for policymakers to consider ways to reduce errors in rental debt through policies that achieve greater access to legal representation and consumer protections for renters.
Read the full report at: https://bit.ly/4cluaWE