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Cardozo Law Review

Abstract

Stability in one’s home is essential to safety, security, and human dignity. The right to court process prior to eviction should be unassailable. Yet, for some of the most marginalized residential occupants, that right does not exist. Nearly every state has codified laws that prohibit landlords from taking the law into their own hands to evict a tenant without a court order. In most states, however, the prohibition of so-called “self-help evictions” hinges on whether an occupant is considered a “tenant” or a “licensee.” The law shelters residential occupants who establish a formal landlord-tenant relationship in the premises where they reside. It guarantees a right to court process and legal recourse if that right is violated. The same is not true for countless others who rely on temporary or other informal housing arrangements, like roommates, transitional housing, and other shared living situations. Empowered by racialized economic structures that privilege wealth and capital, the law has divested such lesser-status residential occupants of any right to due process. That means eviction for any reason—or no reason—without notice or a court order.

When one’s home is stripped away, the consequences are dire. Housing insecurity can trigger instability in every aspect of a person’s life—employment, physical and emotional health, family and personal relationships, and financial security, among a cascade of others. And because people who rely on informal housing are disproportionately low-wealth people of color, the lack of protection following an extrajudicial ouster can be particularly bleak. For some, that displacement is a pipeline to homelessness. Being relegated to the streets means disparate exposure to illness, substance use, and indiscriminate policing. Homeless shelters—notoriously crowded and unsafe—are a far cry from a baseline of secure, dignified housing that should be a fundamental guarantee to every human being in a civilized society. The exclusion of such broad swaths of residential occupants ignores the realities of housing in the modern urban economy. The law can and should prevent the needless human suffering that necessarily flows from a self-help eviction. To date, however, jurisdictions across the country continue to permit landlords to weaponize extrajudicial evictions as a tool to oust non-tenant residential occupants from their homes.

Keywords

Affordable Housing, Housing Law, Eviction

Disciplines

Housing Law | Law

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