CAN WE DO BETTER THAN EVICTION? A Swift-Certain-Fair Approach to Nonpayment of Public Housing Rent

About a year ago I was in the Brookline District Court when I watched a family lose everything.  At least I think that’s what happened; I suppose there might have been a fairy godmother lurking in the wings, but I doubt it. (Why is there never a fairy godmother around when you really need one?)

Brookline is a high-income town adjacent to Boston, with great public transportation, hardly any crime and a public school system so good that the town has employees dedicated to ferreting out residency fraud.  Brookline has public housing, though, in which you will pay only a third of your after-tax income as rent, and given the advantages to living there, I would imagine that Brookline’s public housing tenants appreciate it.

Back to my day in court: the case was an eviction from public housing. Evictions in Massachusetts happen in a two-step process. First the landlord has to win the case, showing that the tenant violated the terms of the tenancy and he is entitled to have possession of the apartment returned to him. Then he has to ask for an execution on the judgment for possession: a piece of paper given to a constable who physically evicts the tenant. Since there’s not much to argue about in a non-payment case, most tenants opt for an agreement for judgment instead of a trial. The tenant promises to pay the rent each month while whittling down the arrearage, and when that’s accomplished, the eviction is dismissed. That’s what had happened in the case I watched. The tenant made an agreement months earlier, and he had not kept it.

This was the fourth time that the housing authority had come back to court on a motion for execution, so there had been five previous court appearances. The first time, the housing authority made the agreement with the tenant.  He didn’t keep it.  At the first motion hearing, the housing authority rewrote the agreement for a smaller payment toward the arrearage. The second time the authority agreed to give the family another chance. The third time, they asked for execution, but the judge quailed at putting this family on the street. She had issued a stern warning and denied the motion. And here we were for round four. The father of this family appeared and opposed the motion. He reminded the judge that he had five children, all school age. He was the sole wage earner; his wife was disabled and had a social security income. He didn’t have a clear answer for why the rent wasn’t paid– he had expenses.  If evicted, he said, they had nowhere to go. The judge struggled. From the gallery I could see the emotions crossing her face as she checked the file. Yes, this was the fourth time. No, this wasn’t a case of exorbitant rent; since it is a percentage of income, he could have paid it. The lawyer sitting next to me whispered that he hoped the judge would give him another chance, and just then the judge spoke. “I can’t give you another chance,” she said. “Last time you promised. How many last chances can we give you?” And it was over with a signature. The look on the tenant’s face was horrible to see. He was stunned. Speechless. He had not seen this coming. A court officer tapped his arm and gestured toward the door. Before it closed behind him, I heard his bewildered voice: “She’s putting me out?”

From my time as a public housing lawyer, I can tell you that the eviction process started long before it came to court. First there are written reminders that the rent is in arrears. Then there’s a meeting with the housing authority director. Then some more reminders.
Finally a notice to quit, subject to a grievance procedure. If the tenant loses the grievance, he can still “cure” the notice to quit by paying the rent or offering a payment plan. The complaint is filed in court only after all these chances to abide by the lease, each accompanied by a threat of eviction. Now add a hearing at which the agreement was reached and three previous appearances on the landlord’s request for execution, and you can begin to understand why this man was shocked. He’d been told at least six times that he’d be evicted if he didn’t pay the rent, and every time that threat turned out to be a bluff. Until finally – inevitably, but unpredictably – it wasn’t.

Everything written about the failure of probation for low-level offenders applies to these evictions from public housing. It’s an all-or-nothing game right from the beginning: either the tenant is indulged or made homeless. Nothing in between. Judges flinch. Hell, I used to flinch, and the housing authorities were my clients. I realized the system was completely nuts when one honest tenant told me why she didn’t have the rent. “If you don’t pay the cable bill they cut you off,” she said.  I tried. I told her that cable TV wouldn’t be much good without a roof over her head. She looked at me with pity, quite sure eviction was not on the horizon.

I’d like to try something different. Swift-Certain-Fair probation (HOPE, Sobriety 24/7) works because we jail the probationer briefly the very first time he violates, instead of spinning it out seemingly forever and then incarcerating him for a long time.  Instead of relying on fines and late fees, why couldn’t we avoid making a family homeless by making them a little bit homeless for a little while? If the Brookline dad had found himself and his family locked out of their apartment for a few hours, it would have been a shock. Being locked out for a whole night would have been a truly awful experience. They probably would have had to stay with friends or relatives, maybe parceling out the kids. I wouldn’t lock tenants out for more than a night, and I wouldn’t do it the minute a rent payment was late, either.  I’d do it as a consequence of violating the agreement for judgment, instead of going back to court. And – most important – I wouldn’t do it as a surprise. The tenant should absolutely know that if the rent isn’t paid by Tuesday at 5 the unit will be locked until Tuesday at 10; the next time he should know that if he doesn’t pay by Thursday at 5 it will be locked for the next 24 hours. Every time. No argument.

When I’ve floated this idea, people react with horror because it’s so mean.  Well, yes. I don’t have any children, and I could stay in a hotel, but the thought of being locked out of my house for a night is appalling. I think lockouts are a good idea precisely because homelessness is so awful. If spending one night locked out of your apartment seems unendurable, imagine what it feels like to see the eviction truck pulling up. In case you’ve never seen one, an actual eviction is brutal. And all the evidence we have suggests that a temporary lockout option would lead to fewer evictions. If the choice is between paying the rent and paying the cable bill, let’s have the tenants choose paying the rent.

Author: Lowry Heussler

Lowry Heussler is a lawyer from Cambridge, Massachusetts. Having participated in the RBC as a guest-blogger, she made it official in 2012. Her most important contribution to the field of public policy to date was her 1994 instruction to Mark Kleiman, "Read Ann Landers every day. You need to learn about real people." Her essay on the 2009 arrest of Henry Louis Gates went viral and brought about one of her proudest moments, being described as "just another twit along the lines of Sharpton, Jackson, Gates, etc." (Small Dead Animals Blog). Currently serving as General Counsel to BOTEC Analysis Corp., she has been a public housing lawyer, a prosecutor for the Board of Registration in Medicine, a large-firm associate and a small-firm partner. She serves as a board member for NEADS, Dogs for Deaf and Disabled Americans, a charity that trains service dogs to increase independence for people with disabilities.

15 thoughts on “CAN WE DO BETTER THAN EVICTION? A Swift-Certain-Fair Approach to Nonpayment of Public Housing Rent”

  1. Prepared for residents trading off nights in each other’s apartments? It’s the obvious response.

    1. You really are determined to think the worst of the poor. They are all deadbeats and will help each other out! Yuck.

      1. James, SOME of them are deadbeats. You think deadbeats are incapable of cooperating?

        You propose a mechanism, you can't just ignore possible faults in it because they're predicated on some people being bad.

  2. You know, 3 months ago I would have disagreed with you vehemently. In those 3 months, I have learned first-hand how the "put it off, put it off, nuclear option" doesn't work, with my teenager, who is now in rehab. (To be fair, she has medical issues as well, and this has been going on much longer than 3 months. But that's when >I< learned the lesson.) But now? I'd go with this, and I say that as someone who was (briefly) homeless once. And who works with homeless people. Short, definite boundaries work.

  3. I HAVE seen actual evictions, several times actually while I was a student in Boston, and it's a horrible horrible thing. Piles of clothing, bedding, entire rooms of furniture thrown into the street and gutter. Broken everything. The pile usually ends up being there for weeks, since the evicted residents don't have the funds to haul it away and usually have to abandon the neighborhood as they are shuttled to relatives or far-off shelters. The trash collection won't pick it up? So it rots, festers, molds, and is picked over by scavengers, and saddens the heart of the entire neighborhood, even people who did not know the evictees. It kills the spirit of the community. I like the idea proposed here, which is similar to Mark Kleiman's ideas for parole violators and short 12-24 hr detentions for violations, as opposed to putting off punishment until multiple violations occurs.

  4. I'll give you an interesting situation that does not involve public housing. I was a member of a condo association (16 units) in which one unit owner had not paid the monthly assessment for three years (2 others were in arrears, but for a shorter period). The CA could not evict him; it did place a lien on the property, but, as he had no intention of moving, that did little good. The HA changed the late fee from a flat amount per month to 5% of the unpaid balance per month (waived if the unit owner would enter into an agreement to pay off the arrears in a maximum of 20 months. The HA sued and got a judgment. He still didn't pay. Then I sold my unit and moved (3 years ago). Last I heard (1 year ago), that unit owner was still not paying. How would you deal with that?

  5. The principle can be extended. Exxon loses in court? Mr. Tillerson, hand over your wallet. It is one of the merits of the Anglo-Saxon criminal justice system that a convicted perp leaves the dock to go straight to jail. Appeals do not suspend prison sentences. In Spain and Italy, IIRC appeals are suspensive, and execution of sentence needs another court order, so convicts with clever lawyers can spin things out, and sometimes disappear. "To no man will we delay justice or right."

  6. Hi Lowry,

    My fear would be that the family is locked out and then someone is injured/robbed when they sleep on the street. I would be more inclined to allow the city to garnish a portion of wages earned, sort of like the nudge method of making people invest in retirement by taking a portion of their check out before it gets into their hands. The individual would thus not ever be in the situation of choosing between housing and cable television.

  7. I have the same concern about safety, and I have wondered about wage garnishment and required representative payees for public benefits. It would be a complete fix for the non-payment cases (until dad decides the garnishment is oppressive and changes jobs, anyway). On the other hand, wage garnishment teaches nothing except more helplessness. I would also hope that a brief daytime lockout might do the trick so an overnight would not be necessary.

    But I didn't mention in my original post that the second most common reason for eviction is bad behavior by a child. Moms typically refuse to respect a stay-away order obtained by the authority against a drug-addicted child (often an adult) and end up homeless with all the younger children. When I worked with them, I was stymied by the way that they simply could not say no to a child, even one who had beaten and stolen from family members (not to mention the neighbors). Is the term "ego dystonic" correct– they could live with themselves if the family ended up homeless as a result of indulging the older child, but not if they protected their housing by refusing him? I wonder whether a brief lockout might make help move that attitude a little.

  8. Sounds like a great idea to me, predicated on the assumption that the OP is correct and people really don’t believe they’ll be evicted. Since evictions do happen, I’d think they’d be aware of it being a real threat, but I don’t actually know.

    I’d consider starting the temporary eviction earlier and increase it in length over multiple incidences of failure to pay. One night, two nights, one week, and then they’re out permanently.

    There is an added cost – you have to make sure they don’t break back in. Maybe it’s worth the cost.

  9. This sounds like a good thing to try out, at least. It is a shame to see kids punished for parental stupidity.

    Also, if a neighbor did help… I count that as a win. Solidarity. It will *still* be inconvenient for everyone involved. Aren't we all supposed to be nudging each other and whatnot?

    I will also say, as a person who does not use a smartphone and does not get mobile email … I am not without sympathy for the poor soul who wants to watch cable. Much of our culture has moved onto cable and mobile. Many, many people are being left out. There are good and bad aspects of being left out of these things. But I still think it is not a good thing. Mind you, our culture is getting splintered at the same time and we don't even have red and blue common sources of fact based reporting. (Another bad thing.) Still, I think this is a problem. No I am not saying it is more important than rent. But we might ask ourselves, why does this stuff cost as much as it does, and why is it we never seem to get around to really subsidizing access? There is chitchat here and there, but nothing effective. Many many jobs now, you cannot apply without the internet. Do not talk to me about the libraries, they are jammed. (Not that I don't love libraries. I do.)

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