Article

The Limits of Good Law: A Study of Housing Court Outcomes

Nicole Summers

Lecturer on Law and Clinical Instructor, Harvard Law School; Research Affili- ate, New York University Furman Center for Real Estate and Urban Policy. JD 2014, Harvard Law School; MALD 2014, The Fletcher School of Law and Diplomacy at Tufts University; AB 2008, Brown University.

I thank Vicki Been for substantial support in designing the study that is the subject of this paper and for insightful comments at all stages of the writing process. For very helpful feedback on prior drafts of this piece, I am grateful to Yun-chien Chang, Russell Engler, Renagh O’Leary, Cristina Rodrigues, Jessica Steinberg, Paul Tremblay, and the participants in the NYU Colloquium on the Law, Economics, and Politics of Urban Affairs, the Harvard Law School Clinical Scholar- ship Workshop, and the Works in Progress Session at the American Association of Law Schools Conference on Clinical Legal Education. I am indebted to Maxwell Austensen, Maria (Mili) Chapado, and Xingzhi Wang for performing the data analyses used in the study. I also thank Rob Collinson and Luis Herskovic for providing additional data sup- port, and Alisa Numansyah for heroically collecting and scanning over one thousand case files across all five boroughs of New York City. Scott Davis, Ethan Fitzgerald, Andrew Gerst, and Alex Wilson provided excellent research assistance. Finally, I thank the Office of Court Administration and the New York City Department of Housing Preserva- tion and Development for providing data used in the study.

The enactment of the warranty of habitability in the early 1970s was hailed as a revolution in tenants’ rights. Reversing centuries of legal precedent, the doctrine established that a tenant’s obligation to pay rent is contingent upon the landlord’s obligation to maintain the premises in good repair. Today, nearly fifty years later, scholars and advocates frequently observe that the law has not lived up to the potential originally envisioned. Yet these observations have been based on weak empirical evidence. This Article presents the results of the first rigorous empirical study on the effectiveness of the warranty of habitability. Based on statistical analysis of over twelve hundred eviction case files and unit-level data matching of these files to Housing Code enforcement records, the study finds that the overwhelming majority of tenants with meritorious warranty of habitability claims do not benefit from the law at all.

The Article makes two significant contributions to the literature on the warranty of habitability. First, it establishes that an operationalization gap exists in the law. While prior studies have observed that the warranty appears to be less effective than originally envisioned, all suffered from methodological limitations. These studies were either based on small, nonrepresentative samples or measured the use of the warranty against the entire population of tenants facing nonpayment of rent eviction. No study has been able to rigorously assess the use of the warranty of habitability in cases where it should be used: those in which the tenant has a meritorious claim. This study does so.

Second, the Article upends the leading theories for why the warranty of habitability is ineffective. These theories posit that tenants are unable to benefit from the warranty of habitability because they lack access to legal representation and/or because strict requirements exist for assertion of the claim. The findings of this study show that neither theory withstands empirical scrutiny. Specifically, the data reveal that although legal representation significantly affects a tenant’s likelihood of benefiting from the warranty of habitability, most represented tenants with meritorious claims still do not benefit from the law at all. The findings also demonstrate that the strict procedural requirements cannot explain the law’s ineffectiveness—even where the requirements are absent, the law rarely protects tenants.

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