Tenants' Rights, Procedural Wrongs: The Summary Eviction and the Need for Reform

Abstract

A summary proceeding for eviction exists in every state. Despite its different labels-summary process, summary dispossession, or forcible entry and detainer-a basic feature of ~he proceeding is its limited nature. Generally only a single issue is presented: Who is entitled to possession? The question is usually answered within six to ten days after the action is commenced. This Article suggests that this procedure fails to accommodate what scholars have called a "revolution" in the law oflandlords and residential tenants that significantly expanded tenants' rights by the adoption of such doctrines as warranties of habitability and retaliatory evictions.1 Instead, this Article suggests that the continued use of the summary proceeding, in which the determination of possession often ends the dispute, undermines many of the benefits the revolution hoped to accomplish. The nature of the proceeding not only places the tenant at a disadvantage as her relationship terminates, but also weakens her position from the time the relationship commences. Because the summary procedure for eviction enables the landlord to enforce the terms of the leasehold within a framework designed for speed ratherthan fairness, the relationship largely avoids judicial scrutiny.