People’s court or eviction mill? At Housing Brass Tacks, Jenny Laurie of the venerable tenant advocacy organization Housing Court Answers explained how disputes between tenants and landlords wind their way through housing court, the inequities that often stop justice from being served, and recent efforts to rebalance the scales.
“Housing court is a product of the New York City housing environment,” Jenny Laurie said. Over 65 percent of the city’s housing is renter-occupied, and more than half of tenants are rent-burdened (paying more than 30 percent of their income for rent). That makes conflict between landlords and tenants nearly inevitable. But thanks to decades of advocacy, tenants and landlords are operating on a more even playing field when it comes to conflict resolution.
The civil rights movement prompted cities to create dedicated housing courts. Boston went first, establishing its housing court in 1971. Initially, landlords could be prosecuted for violations in criminal court. But criminal court cases marked a huge investment of time and money. In Boston in 1971, Laurie said, only 700 criminal cases were brought against landlords by the city, and only for high-level offenses like forcing tenants to go months without heat or hot water. Only 20 fines were issued, and on appeal, every fine was reversed. Tenants had little recourse. Meanwhile, civil courts were overloaded with landlords suing tenants for unpaid rent. To some reformers, housing court was the solution to a needless inefficiency; for others, it would render landlords accountable and empower tenants.
Facing protests against slumlord abuse, lawmakers in New York established Housing Court in 1972 as part of a series of reforms intended to increase tenant protections.
Landlord v. Tenant: Now “Today, it’s a different kind of place,” said Laurie. New York City’s housing courts are the largest in the nation, with 50 judges in 50 “parts.” Brooklyn and the Bronx have the largest housing courts, with Bronx Housing Court spread over two separate courthouses. The courts hear between 200,000 and 300,000 filings per year, but both filing rates and eviction rates in New York are relatively low — one percent and ten percent, respectively — compared to other cities where tenants have fewer legal protections, Laurie said. (Since the establishment of the Housing Maintenance Code (HMC) and the Office of Code Enforcement (OCE) in 1967, landlords are legally obligated to provide certain services and maintenance in their apartments. New York City’s rent stabilization law also provides significant protections.) Still, some advocates claim that housing court has been turned, essentially, into an “eviction mill.” In 2016, tenants seeking repairs filed just under 10,000 cases, and the city only filed 3,400 cases against landlords for habitual neglect. The vast majority of cases today are filed by landlords seeking to evict their tenants. Over 200,000 nonpayment cases were filed at last count, as well as 31,000 “holdover cases,” in which a landlord tries to turn a tenant out of the unit in order to reclaim it for personal use or to rent to someone else — or to list on Airbnb. The majority of holdover cases are filed in Queens and Staten Island, where one- and two-family houses abound.
If housing court’s intent is to serve housing justice, in reality it can be a demoralizing and embarrassing experience. Invariably crowded, dirty, and loud, the courthouses afford no space for private conferences, said Laurie, and allow landlords (and their lawyers) to intimidate or harangue tenants in public view. But against this chaotic backdrop, cases in housing court progress in a predictable fashion.
First, a landlord files a petition with the court, and serves the named tenant with a copy. The petition lays out what the landlord claims the tenant has done wrong — in a nonpayment case, for instance, the petition details the amount of money owed per month over how many months and additional fees. The tenant then has five days to come to court, answer the petition, and offer some defense against the accusation. In a nonpayment case, defenses could include that the respondent is not the current tenant, that the amount owed has been inaccurately calculated, or that the tenant withheld rent because the landlord has failed to provide repairs and services. The case is calendared (slated for a hearing) just one week later, when both tenant and landlord must return to court to appear before the judge. The vast majority of cases are settled by agreement at that time, in those same loud, crowded courthouse hallways. Tenants may acknowledge that rent is owed, but request an extension for future payment, or landlords may agree to perform a repair in exchange for rent owed. The judge must then review the agreement. In most cases, tenants agree to three things: a money judgment (a court order certifying how much the tenant owes), a possessory judgment (a court order certifying the landlord’s right to evict the tenant), and a warrant of eviction (a written order from a judge directing a city marshal to evict the tenant). All three establish the grounds for physical eviction of the tenant if they fail to meet the terms of the agreement. In those cases, a marshal will come to the apartment, hustle everyone out of the unit, and change the locks on the door as they stand outside. It is a sudden, traumatic process; roughly 20,000 to 30,000 households have been evicted each year over the last five years.
A Lifetime of Consequences If the terms of the agreement are met, then the possessory judgment disappears and the warrant of eviction is voided. But even if the tenant is never evicted, the money judgment issued at the settlement goes on their credit report, and can impact their ability to find housing in the future. In fact, any person who is party to a case in housing court, no matter the outcome, may have trouble in the future. Tenant screening companies, often subsidiaries of the three major credit bureaus, collect the names of people involved in housing court cases from the public registry in the courthouse, and enter the names and case index numbers into a large database. Landlords pay those companies to run the names of prospective tenants against the database, and may refuse to rent to anyone who has ever had a case brought against them — whether the case had merit or not. As of yet, there is no legal prohibition against discrimination of this sort. However, some developers of affordable housing who receive city or federal funding must ask applicants to explain their case history and cannot reject them outright. Landlords’ faults may also follow them: The Public Advocate publishes an annual list of the city’s worst landlords, and other sites maintain self-reported lists. HPD maintains a public, searchable database of buildings with Housing Code violations. But since many landlords own their buildings through limited liability corporations, wrongdoing can be hard to track. The machinery for denying tenants housing is undoubtedly more robust than that for denying landlords tenants.
Since the beginning, housing court has been marked by an imbalance of power. “They say this is where the people can come to have their day in court, but if they come here without a lawyer, and most of them do, they might as well throw away the notion of justice because it just won’t happen,” one public attorney told City Limits in 1980. “It’s true to say that this is the people’s court because this is where they come to get screwed.“ Housing Court Answers (HCA) was founded in 1981 to correct the imbalance. At the time, over 90 percent of landlords had legal representation, while more than 80 percent of tenants had none. HCA has advocated for a fairer and more accessible housing court by pressing for more public funding for lawyers and for the translation of housing court documents and proceedings, both into foreign languages and into jargon-free plain speak for unrepresented tenants.
Advocates won a major victory in July 2016, when the City Council passed a bill guaranteeing legal representation in housing court for all tenants facing eviction whose incomes are less than 200 percent of the federal poverty level, and free legal advice for those who make more. Representation is being phased in by zip code: two per borough, per year, over five years. The new guarantee represents a real sea change: The de Blasio administration is slated to spend $100 million annually, up from $4-6 million dollars spent on civil legal services under the Bloomberg administration. Laurie attributed the Mayor’s enthusiasm to recent, heated conversation about gentrification, and the ballooning shelter population — in fact, mayoral messaging has framed the program as a homelessness-prevention initiative.
Shutting Down the Eviction Mill Increasing representation in housing court should stem the tide of eviction, the leading cause of homelessness. On the one hand, a lawyer can help a tenant who is behind on their rent negotiate a workable agreement and keep their home. And on the other, lawyers may be able to help tenants push back against baseless eviction petitions, a favorite tool of landlord harassment. Half of cases brought to housing court are never even calendared, and some number of these cases — it’s hard to know the exact number with certainty, but surveys estimate one-third to a half — represent landlords’ efforts to empty their units to attract higher-paying tenants. That’s 100,000 cases per year or more started by landlords simply “spraying petitions throughout their buildings,” as Laurie put it, to see which of their tenants can be spooked into moving out. Large private equity firms may buy up several buildings in low-income neighborhoods and file blanket petitions against thousands of tenants at a time. One notorious example of a “predatory equity” landlord, Vantage Properties, tried to evict 60 percent of its Washington Heights tenants within a six-month period. Often the most vulnerable tenants are immigrants, especially undocumented immigrants, who may think their status will be jeopardized by engaging with a city court. As Community Service Society analyst Victor Bach told the Village Voice in September, “If you sue ten tenants for nonsense, you can get four to relinquish their rights.”
In 2016, HPD received more than 300,000 emergency complaints — officially, Class C violations — for issues on the order of nonfunctioning heat and hot water or cascading leaks. But 90 percent of these weren’t pursued by the city, and only 3,400 amounted to cases brought in housing court. What happened? The city triages complaints based on urgency — from October to May, heat and hot water get priority — as well as the number of complaints they receive, time passed between complaints, and landlord acknowledgement of the issue. Typically, a city inspector will visit an apartment if the problem is unresolved within three days. Upon verification, the complaint turns into a violation. The landlord then has a stipulated amount of time to correct the issue and report the fix; should they fail to do so, a housing court judge may find the landlord in contempt. For the most part, complaints go uninvestigated because tenants stop calling — frequently the issue can be resolved without the city’s involvement, as the tenant uses the complaint for leverage, or they don’t know to pursue the case. But, of course, it’s not a purely rational or fair process. “Neighborhoods where there’s a lot of tenant organizing and attentive elected officials tend to get faster responses,” Laurie said. “Parts of the city that don’t complain as much get less attention.”
Dangerous Affordability There are other obstacles to fairness in a complaint-based process. A case study: Queens Housing Court has many fewer filings than the other majority tenant-occupied boroughs, a fact Laurie links to its status as the so-called “global borough.” For immigrants who don’t speak English as a first language, the complaint-reporting system can be inscrutable — even if they call to make a complaint, they may not know how to follow up. And for those who are undocumented, the prospect of involvement with a city agency, whether a visit from a city inspector or a day in housing court, inspires anxiety. Finally, Laurie says, Queens’ low filing rate may have to do with its high numbers of illegal basement and attic apartments or illegal apartment divisions, which are largely occupied by low-income, often undocumented immigrant families. Estimates put the number of illegal apartments anywhere from 100,000 to 400,000 city-wide. In these units, landlord and tenant are bound in a compact of functional illegality, trading potentially dangerous conditions for low rent and a blind eye to immigration status. If a city inspector were to witness the lack of egress in the course of checking out a leak or lack of heat, it could mean one less affordable apartment — and one more family on the street.