Residential landlords and tenants participate in contractual relationships in which the landlord provides habitable housing and tenants pay their rent on time. Although the success of these relationships is essential to the health of the community, tens of thousands end up in court each year. In 2002, 35,799 cases were filed in Chicago’s forcible entry and detainer courts, most being landlord and tenant disputes over nonpayment of rent. Eviction courts exist to protect tenants from wrongful evictions and potentially violent confrontations with their landlord. Such protection requires that landlords meet the burden of proving their case and tenants have the opportunity to respond and be treated humanely.
Due to ongoing concerns about respect for the dignity and rights of tenants in Chicago’s forcible entry and detainer courts, the Lawyers’ Committee for Better Housing (LCBH) decided to observe Chicago’s eviction courts. Chicago-Kent College of Law class of 2004 Honors Scholars conducted a study of Chicago’s eviction courts for LCBH in the fall of 2002. (Two previous studies were executed in 1976 and 1996.) During an 11 week period, the monitors observed 763 eviction cases at 26 morning calls.
The study revealed problematic trends in a number of areas including length of hearings, legal representation for and court attendance by tenants, adherence to procedure, opportunity to provide a defense, and outcome options.
Length of hearings. Hearings last an average of 1 minute and 44 seconds, a decrease of nearly 50% from the 3 minutes observed in 1996. The average length of hearings in which the tenant had legal representation has increased since 1996, but decreased in hearings where only the landlord had representation.
Legal representation. Of 763 cases observed, both parties were represented by legal counsel in only 33 instances (4% of the cases). Tenants were represented by counsel approximately 5% of the time when they were present at the hearing.
Court attendance. Only 56% of tenants facing eviction appear in court, either in person or through a representative This finding is troubling given that, tenants’ presence affects the length of stay they are granted (time given tenants before they must move out.) When the tenant is present in court, the average stay is 14.5 days; when the tenant is absent, the average stay is only 8.4 days.
Adherence to procedure. Several important court procedures were frequently omitted in the observed court proceedings. The parties were sworn to tell the truth in only 8% of cases and judges examined the eviction notice presented to the tenant in only 65% of cases.
Opportunity to provide a defense. While judges typically asked tenants whether they had paid the rent, judges only asked tenants if they had a defense in 27% of the cases. When the judge did ask for a defense, tenants presented a defense 55% of the time. If the judge didn’t ask for a defense, tenants presented a defense only 9% of the time.
Outcome options. In all cases, in which a defense was raised the tenant lost. Though a case should be dismissed for want of prosecution if the landlord-plaintiff is not present at first scheduled hearing, only 60% of cases were dismissed when the landlord did not appear, showing solicitude towards landlords.
Tenants were treated less considerately. Of the cases dismissed for want of prosecution, 74% were dismissed when the tenant was not present, but 41% were dismissed when the tenant appeared. Judges dismissed nearly half as many cases when the tenant appeared than when neither party appeared.
The hearings are excessively brief, making them appear unjust to tenants. Judges seem impatient to arrive at an outcome they regard as a foregone conclusion and do not ensure that proper judicial procedures are followed or that the tenants understand what is being done and why, which is vital in eviction proceedings where virtually all tenants are unrepresented. LCBH recommends that judges orally explain each step in the proceedings and rigorously adhere to existing procedural requirements. Additional judges sitting in Chicago's forcible entry and detainer courts could help to alleviate the burden on the small number of judges hearing these cases and improve the likelihood of a fair and meaningful hearing. Substantive injustice is incurred every time tenants fail to assert an effective substandard housing defense because they did not know how to correctly do so before the eviction process was initiated. To ensure tenants know their rights in time to exercise them, landlords should be required to include language in their 5-day notices explaining the procedure for withholding rent. Additionally, libraries, community centers, and other public venues could provide sample letters for tenants to present to landlords regarding the conditions in an apartment. Advertising in targeted public venues with toll-free numbers and public service web sites has been effective in the public health field, and could be effective for tenants’ rights. Implementation of this approach needs to take full account of the tendency of tenants to seek information after it is too late.