(Under)Enforcement of Poor Tenants' Rights

Abstract

Millions of tenants in the United States reside in substandard housing conditions ranging from toxic mold to the absence of heat, running water, or electricity. These conditions constitute blatant violations of law. The failure to maintain housing in habitable condition can violate the warranty of habitability, common law torts, and, in some cases, consumer protection and anti-discrimination statutes. Well-settled doctrine allows for tenants’ private rights of action and government enforcement. Yet the laws remain under-enforced.

This Article demonstrates that the reason for the under-enforcement is that the tenants are poor. While the right to safe housing extends to all tenants, poor people are the most likely to get stuck in substandard conditions, and the enforcement of their rights is undermined precisely because of their social position. The Article reveals significant limitations in current approaches to the enforcement of poor people’s rights. The private legal market devalues poor tenants’ cases due to class, race, and gender biases in the governing doctrine. Public actors also fall short: they dis-invest in the agencies charged with enforcing housing standards, and, when agency lawyers do initiate enforcement, tenants do not control the litigation.

The Article envisions a new approach to enforcement of housing standards. It identifies specific ways to expand enforcement by market actors, government agencies, and non-profits. Given the relative strengths of the public and private sectors, a combination of the following approaches is likely to be most effective: (1) strengthening support for private enforcement through legislative reform that enhances fee-shifting and aggregation of claims; (2) increasing agency funds and shifting agency culture to promote zealous government enforcement; and (3) appointing counsel for tenants who wish to bring cases or intervene in suits brought by government actors.

Keywords: enforcement, poverty law, inequality, access to justice, legal profession, housing

JEL Classification: I14, I18, I30, I31, R21, R31