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How Civil Probation is Rewriting Eviction Law


Nicole Summers (@nicolesummers_) is an Associate Professor of Law at Georgetown University Law Center.

On an average day in Boston’s eviction court, the hallways are jam-packed. Landlords and tenants check in at the attendance roll call, at which point they are promptly sent “outside” to negotiate. For decades, researchers and advocates have documented the deep, fundamental unfairness of these hallway negotiations. Landlords are overwhelmingly represented by attorneys, whereas the vast majority — over 95% — of tenants are pro se. Landlords’ attorneys are typically repeat, savvy, and powerful players, and they arrive with pre-drafted settlement agreements. As observers have commented for years, landlords’ attorneys use a variety of unscrupulous tactics to pressure tenants into signing. And this pressure works. Among cases in which the tenant appears, virtually all settle.

While we have long known about this unfair system of mass settlement in eviction court, a big piece of the story has remained shrouded in secrecy: the terms of the settlements. What are landlords and tenants actually settling for? What’s written in these pre-drafted settlement agreements? The general sense is that the terms favor landlords, but we haven’t known exactly how or to what extent. To answer to this question, I collected a random sample of nearly 1,000 eviction cases filed over a five-year period in the Boston-area housing court, retrieved the case files from the courthouse, and hand-coded them across forty variables, capturing all sorts of background characteristics about each case, as well as the terms of the settlement.

As I lay out in a forthcoming article, I found that about two-thirds of all settlements – 65% – create a legal structure that I call civil probation. Under the terms of these settlements, the tenant is allowed to remain in their home, and ultimately have their tenancy reinstated, so long as they abide by certain conditions for a certain period of time. Conditions often include paying rental arrears, paying ongoing rent on time, or adhering to specific behavioral rules. If the tenant violates any of the conditions, however, they can be evicted through an expedited, alternative legal process, in which they have few procedural or substantive rights. This system of “civil probation” has been entirely overlooked in both the scholarly and the public debates around eviction.

I use the term “civil probation” because this system is, in essence, the civil analogue to probation in the criminal context. In the system of criminal probation, a person’s liberty is conditional on their compliance with certain terms; if they violate any of the terms, they face a charge known as a violation of probation, which is adjudicated through a process in which the defendant enjoys far fewer procedural and substantive rights than they do in the adjudication a standard criminal charge. For example, in a probation revocation hearing, the defendant does not have a right to a jury trial or to proof of the charge “beyond a reasonable doubt.” Yet despite these weaker protections, a violation of probation can result in incarceration.

The system of probation works similarly (though not identically). Take the following as an example: a family living in subsidized housing faces eviction for failing to pay one month’s rent (say, $800). They come to court and sign a settlement agreement with the landlord’s attorney. The settlement says that they can stay in their apartment provided they abide by the conditions laid out in the agreement. These conditions include the following: they have to repay the arrears at a rate of $100 per month for the next eight months; they have to pay their ongoing rent on time every month by the fifth of the month; and they have to comply with by all the terms of their lease. The agreement lasts for twenty months – the eight months during which they are paying off the arrears, plus another full year.

The following year, the landlord files a motion in court claiming that the family violated their lease by having an “unauthorized occupant” (i.e., a household member living with them who is not listed on the lease). Under normal circumstances, a host of procedural protections would kick in at this point: the landlord would be required to give a certain type and amount of notice, the tenant would have the right to take discovery on the landlord’s claim, and the tenant could demand a jury trial. If the tenant lost, they would also have the right to remain in their home until the appeal was decided. However, even though the family has paid off all the arrears and has a zero balance, because the family is still on civil probation, none of these protections apply. The motion is heard quickly, the family has no right to learn the evidentiary basis of the landlord’s claim before the hearing, and they cannot have the facts decided by a jury. The judge hears the motion, sides with the landlord, and the family is evicted. While the family retains the right to appeal the ruling, they will be forced out of their home before the appeals court rules.

As this example shows, civil probation effectively rewrites eviction law. It creates an alternative procedural (and substantive) regime under which tenants can be ordered out of their homes, subverting the rules established by statutory and constitutional law. My data revealed five core features of this system.

First, civil probation is driven by sophisticated landlords – it is disproportionately the outcome in cases brought by landlords that are publicly subsidized, corporate, and represented by counsel. It is not a system for which mom-and-pop landlords are responsible. Specifically, civil probation accounted for 78 percent of settlements in cases brought by corporate landlords, but only 19 percent of settlements in cases brought by individual owners.

Second, the conditions included in civil probation agreements are expansive. Much like in the example presented above, conditions routinely cover behaviors that are entirely unrelated to the original basis for eviction. Civil probation is not simply a system that gives tenants a chance to correct past wrongs – much to the contrary, and much like in criminal probation, the system results in expanded landlord control over a wide range of tenant conduct that was never previously at issue. 

Third, probationary periods are long. The data show that the median length of a civil probation agreement is 381 days. Among civil probation agreements that involve the repayment of rental arrears, 86 percent continue after the arrears have been satisfied. As in the example presented above, this means that even after the tenant has paid up and the landlord has been made whole, the tenant remains on civil probation and can be evicted for any violation.

Fourth, civil probation agreements are strictly and frequently enforced. In 1 out of every 3 civil probation agreements, the landlord files a motion seeking to evict the tenant for violation of a condition. Over a quarter of those motions are for conditions unrelated to the original basis for eviction, meaning that the expansiveness of the agreements is not merely an academic point. People routinely face eviction within this alternative system for conduct that has nothing to do with what brought them to court in the first place. And tenants are virtually doomed once such a motion is filed, regardless of the basis of the violation. The data show that judges allowed 96 percent of the motions they decided. In other words, landlords are practically guaranteed an eviction if the tenant breaches a probationary condition.

Fifth, the data show that the civil probation system underlies judicial eviction orders. During the study period, judges issued more than four times as many eviction orders for a tenant’s violation of civil probation as they issued based on the underlying merits of an eviction complaint. When it comes to eviction, the system of civil probation and its rules have in essence supplanted the formal statutory law and procedures that have been enacted by the legislature.

The consequences of civil probation for landlord-tenant law are enormous. Civil probation leads to the emergence of a shadow legal system that drives how the eviction legal system operates in practice. It also significantly expands landlord control over tenant conduct. By weaking procedural and substantive protections for tenants, civil probation strengthens landlords’ ability to enforce the tenancy rules through eviction. And finally, civil probation raises the possibility that the eviction legal system may be experiencing what criminal probation scholars refer to as “net-widening.” To the extent civil probation agreements are not acting as a substitute for actual eviction, but instead are being entered into in cases that would otherwise be dismissed, civil probation leads to more tenants and more tenancies being governed not by a lease but instead by a court order. Civil probation thus stands to expand the scope of regulation of the eviction legal system overall.

This post is adapted from “Civil Probation,” forthcoming in the Stanford Law Review.