A moment of truth for the Housing Court

By Esme Caramello
Via Massachusetts Lawyers Weekly

The Housing Court was created in 1971 to bring specialized expertise and resources to the complex legal, social and economic problems that intersect in housing cases.

With not only expert judges but also a team of “housing specialists” who could investigate and resolve disputes outside the courtroom, the court could provide timely and nuanced relief to tenants seeking protection from dangerous housing conditions, landlords pursuing evictions, and cities trying to enforce health and building codes.

Seeing the Housing Court’s potential to offer not only subject-matter expertise but a supportive dispute-resolution framework in which litigants could access services and funds to stabilize sustainable tenancies and secure necessary income and lease compliance for landlords, late Supreme Judicial Court Chief Justice Ralph Gants campaigned to extend the jurisdiction of the Housing Court statewide and won legislative approval in 2017.

But while fighting to expand the court and its resources, Gants — who was also co-chair of the Massachusetts Access to Justice Commission — came to see that the court faced a fundamental structural imbalance that threatened its ability to provide equal justice in eviction cases.

“[S]ummary process cases are complex, fast-moving, and generally litigated by landlords who are represented by attorneys and tenants who are not,” Gants wrote for a unanimous SJC in Adjartey v. Central Division of the Housing Court, 481 Mass. 830, 834 (2019).

Successfully navigating an eviction case is therefore a “formidable challenge” for most tenants, a challenge compounded by “the stress of a potential eviction.” Id. at 837.

Nine out of 10 tenants who face eviction do so alone, without a lawyer. Because 86 percent of landlords have lawyers, most of these unrepresented tenants are not just lawyer-less, they are up against a lawyer in an adversarial system.

The lawyer has the upper hand. The lawyer knows what documents to file and by what deadlines. The lawyer knows what will happen in the case and when and can make informed strategic decisions.

The lawyer knows how to talk to the judge, how to weave the facts into a story that produces a favorable legal outcome. The lawyer knows which facts are not relevant and knows not to distract or irritate a busy judge by dwelling on them.

The lawyer speaks excellent English, can make an argument orally or in writing. The lawyer has access to a computer, printer, scanner and working telephone. The lawyer has consistent access to the internet and experience using it to interact with court personnel and judges.

The lawyer knows what a “hearing” looks like, what “discovery” is, what a “motion” is, how to examine a witness. The lawyer has an educated sense of whether a proposed settlement is a good one or a bad one, given the alternatives.

The nine out of 10 tenants who face eviction without a lawyer generally have few if any of these critical assets. And as the court highlighted in Adjartey, they are trying to use exceptionally complicated laws on uniquely tight deadlines. The result is a dramatic imbalance of power and access to justice.

It is self-evident that this lopsided system will not, in the aggregate, produce just outcomes. Recent studies have confirmed and illuminated the impact.

In nearly a quarter of eviction cases, the Trial Court Department of Research and Planning, or DRAP, recently found tenants lose their housing by default, without any merits determination. “Housing Court Summary Process: Fee-Shifting, Dispositions, and Other Practices” (May 2021).

Shortly before the pandemic, Americorps volunteers found and interviewed tenants who defaulted and determined that most defaults were unintentional, with confusion about the need to appear by far the most common explanation. The next most cited reason for defaulting was a disability or medical issue. MLRI et al., “The Default Project” (November 2022).

Most tenants who default are unable to turn things around. The DRAP data show that 93 percent of initial defaults turn into final judgments of default. They also reveal that with help from counsel at any stage of a proceeding, tenants end up with default judgments less than 5 percent of the time. Losing your housing because you could not personally navigate a court process is a common but avoidable occurrence in eviction cases.

The DRAP data also illustrate how infrequently the claims and defenses of pro se tenants are actually asserted or litigated. DRAP found that unrepresented tenants filed answers in fewer than 17 percent of cases. By contrast, tenants with lawyers at any stage of a case filed answers 73 percent of the time.

The Legislature has passed a wide range of tenant protections aimed at promoting public health, eliminating discrimination, and preventing avoidable displacement. But due to the impossibility of navigating eviction law and procedure as a pro se tenant, these rights are rarely adjudicated in the Housing Court, or anywhere else for that matter. They exist on the books but infrequently in the courtroom.

Instead, most eviction cases settle. Settlements are not inherently bad. But summary process settlements are negotiated amid vast differentials in bargaining power based not on the respective merits of the parties’ claims but on their relative poverty.

In the typical summary process settlement, a landlord’s lawyer negotiates with an unrepresented tenant and cuts a deal that the court turns into an order — in some divisions without any judicial review or colloquy.

As Georgetown Law Professor Nicole Summers illustrates in a forthcoming Stanford Law Review article analyzing a random sample of 1,000 Eastern Housing Court cases between 2013 and 2017, this system produces a near universal result in which the landlord secures the right to dispossess the tenant without a trial.

In 34 percent of the sample settlements, the tenants agreed to move out of their homes. In nearly all of the remaining cases, 65 percent, the tenants waived their right to trial, granted the landlord judgment for possession, and subjected themselves to a series of (usually extensive) behavioral terms that, if violated, would enable the landlord to seek a quick eviction upon motion. The landlord’s burden is thereby reduced to proving a violation of the agreement, and the tenant has no right to raise most defenses, seek discovery, or claim the jury trial to which they would otherwise be entitled. Unsurprisingly, when landlords bring such motions before a judge, they win a striking 92 percent of the time. Nicole Summers, “Civil Probation,” Stanford Law Review, forthcoming.

In a 2017 study of case outcome data available on the MassCourts.org public portal, I found consistent results. In the three divisions we studied, landlords won 98 percent of the judgments the Housing Court issued in no-fault and nonpayment cases. Report of the Access to Attorneys Committee, Massachusetts Access to Justice Commission (May 19, 2017).

The imbalance in summary process parties’ ability to have their day in court may not be a problem of the Housing Court’s making, but it is one the court both can, and must, minimize.

And given the size and impact of the disparities, and the immediate and long-term harms that eviction causes for both the people who lose their homes and the communities around them, the court must act with urgency and decisive, sweeping action.

Meaningful progress is within the Housing Court’s reach. There are blueprints. For example, in 2016, the commonwealth secured a Public Welfare Foundation grant to conduct a yearlong investigation of access to justice in the civil legal system. MA Justice for All Strategic Action Plan (Dec. 22, 2017).

The resulting 2017 Strategic Action Plan contains a 22-page discussion of solutions for the summary process context, many of which the Housing Court could adopt unilaterally or through advocacy with other leaders.

In fact, under the leadership of Chief Justice Gants and Housing Court Chief Justice Timothy Sullivan, several of the key recommendations in the plan were adopted on a temporary basis during the pandemic and remain in place.

These important innovations — like informing tenants of their rights and available housing stabilization resources at the outset of the eviction process, and holding “first tier events” at which housing specialists can connect pro se litigants with funding and services to help them resolve their disputes amicably and mitigate the harms of displacement — can and should be made permanent.

The court has also made progress in identifying ways to simplify the form documents that it sends to or expects from litigants so that unnecessary defaults are avoided and tenants can present their defenses.

A starter set of simpler forms was developed through a long and collaborative process by Dina Fein, a Housing Court judge and Trial Court special adviser on access to justice, but the proposal reached Chief Justice Carey just before the courts shut down in March 2020 and remains unaddressed.

Suffolk University Law School’s Legal Innovation and Technology Lab and others have developed technology that enables pro se litigants to answer plain-language questions and produce legally correct pleadings and motions. Barriers remain to getting these pleadings served and filed. A court focused on equal access to justice could pave the way.

There are also many partners ready and willing to help the court avoid unfair and unnecessary evictions. Government agencies and charities offer rental relief funds and housing stabilization services such as housekeeping and budgeting, and volunteer attorneys serve as “lawyers for the day” for litigants who appear in court without attorneys. Community organizations go door to door conducting outreach to affected residents and alerting them to available resources.

All of these programs work best when the court actively facilitates connections, and they have trouble working at all when court processes make connection difficult to accomplish in time.

While the court has many opportunities to help correct the imbalance between landlords and tenants in the court, the real progress we need will take concentrated effort and leadership.

The Housing Court is at an inflection point. Pandemic era rules that have facilitated resource connections and created greater opportunities for pro se parties to participate meaningfully in their cases are now set to expire. Housing Court Chief Justice Sullivan is retiring, and Trial Court Chief Justice Jeffrey Locke is searching for his successor. This moment is a critical one for the future of justice in the court.

The SJC in Adjartey called attention to a disturbing situation and hoped that change would swiftly follow. Then came the pandemic. We have made some progress, but it is insufficient, and it is unstable.

Chief Justice Locke and the Housing Court chief he appoints this spring must focus their energies on making real change happen. Poor people facing eviction have waited long enough. They deserve better, and we have the power — and the responsibility — to give it to them.

Esme Caramello is a clinical professor of law at Harvard Law School and the faculty director of the Harvard Legal Aid Bureau. She co-chairs the Access to Justice Commission’s Housing Committee. She has practiced in the Housing Court since 2002.