The Limits of Good Law: A Study of Housing Court Outcomes

Abstract

The enactment of the warranty of habitability in the early 1970s was hailed as a revolution in tenants’ rights. Reversing centuries of legal precedent, the doctrine established that a tenant’s obligation to pay rent is contingent upon the landlord’s obligation to maintain the premises in good repair. Today, nearly fifty years later, scholars and advocates frequently observe that the law has not lived up to the potential originally envisioned. Yet these observations have been based on weak empirical evidence. This Article presents the results of the first rigorous empirical study on the effectiveness of the warranty of habitability. Based on statistical analysis of over 1,200 eviction case files and unit-level data matching of these files to Housing Code enforcement records, the study finds that the overwhelming majority of tenants with meritorious warranty of habitability claims do not benefit from the law at all.

The Article makes two significant contributions to the literature on the warranty of habitability. First, it establishes that an operationalization gap exists in the law. While prior studies have observed that the warranty appears to be less effective than originally envisioned, all suffered from methodological limitations. These studies were either based on small, non-representative samples, or measured the use of the warranty against the entire population of tenants facing nonpayment of rent eviction. No study has been able to rigorously assess the use of the warranty of habitability in cases where it should be used: those in which the tenant has a meritorious claim. This study does so.

Second, the Article upends the leading theories for why the warranty of habitability is ineffective. These theories posit that tenants are unable to benefit from the warranty of habitability because they lack access to legal representation and/or because strict requirements exist for assertion of the claim. The findings of this study show that neither theory withstands empirical scrutiny. Specifically, the data reveal that although legal representation significantly affects a tenant’s likelihood of benefiting from the warranty of habitability, still most represented tenants with meritorious claims do not benefit from the law at all. The findings also demonstrate that the strict procedural requirements cannot explain the law’s ineffectiveness – even where the requirements are absent, the law is rarely used.

Keywords: access to justice, empirical legal studies, housing law