The Case Against Summary Eviction Proceedings: Process as Racism and Oppression

Andrew Scherer, New York Law School

Seton Hall Law Review, Vol. 53, Issue 1 (2022), pp. 1-84


This Article argues that because of the many ways in which summary eviction proceedings privilege landlords and disadvantage tenants, their very structure is patently unfair. Moreover, because of the racialized nature of landlord-tenant relations, the summary eviction process perpetuates a race-based power imbalance and is structurally racist. This Article explains why the time has come to dispense with the use of the shortcut summary eviction process. Summary eviction proceedings-truncated and expedited exceptions to normal civil process-were first devised for eviction cases in the late eighteenth and early nineteenth centuries by state legislatures comprised of white male property owners who were voted into office by other white male property owners to give themselves a simple judicial remedy to evict. Black people were mostly enslaved; white men who did not own land (i.e., tenants) were unable to vote; and women could neither vote nor own property. The speed and procedural constraints of summary eviction process advantage landlords and disadvantage tenants. Two centuries have passed and all states still use summary eviction processes. Over the course of those two centuries, a conspiracy of public policies and private actions has racialized landlord-tenant relations by perpetuating racial segregation, depriving Black people of homeownership opportunities, and relegating them to tenant status. Black people are not only more likely to be tenants, they are more likely to be evicted and to suffer the devastating consequences of eviction-homelessness; disruption of family life; adverse effects on health, education, and employment; and the loss of place and community. Physical eviction from one's home is one of the most violent acts resulting from a judgment of our civil courts. Eviction has devastating short- and longterm consequences, yet the legal process to secure an eviction judgment is one of the simplest. The process for litigation that aims to evict people from their homes should be handled on par with other civil litigation; it should have more, not fewer, safeguards. A judgment of eviction, if permitted at all, should only be obtainable through a fair process that corresponds to the importance of a home to people's lives, health, and well-being; the dire consequences at stake for tenants who are evicted; and the complexity of the law.