Thursday, March 24, 2011
Lee Harris (Memphis) has posted Judging Tenant Protections: The Evidence from Enforcement of Landlord Penalties on SSRN. Here's the abstract:
Critics of pro-tenant residential laws have argued that such laws actually hurt tenants. Law-and-economics scholars, for instance, argue that such reforms raise the cost of doing business to landlords. Forced to bring their dwellings up to code and wary of costly tenant lawsuits, landlords experience higher costs of doing business. However, the effects of pro-tenant residential rights cannot be evaluated without, as a first-step, coming to some conclusions about whether tenants actually use them and whether judges ever enforce them. That is, if pro-tenant residential rights are seldom enforced, landlords have little incentive to expend additional resources to meet new regulations, and no new costs need be passed on to tenants. Judges, for example, decide whether a tenant may forgo paying all, or part of, her rent if a dwelling is uninhabitable. And it is the judge who grants punitive damages if a landlord who fails to return a security deposit in a timely manner.
This Essay conducts a brief qualitative study of whether judges ever enforce such laws in the first place. Specifically, this study focuses on one product of landlord-tenant reforms in Connecticut – damage awards for landlords who do not return a tenant’s security deposit. Security deposit disputes between landlords and tenants are one of the most common kinds of landlord-tenant disputes and thus a good place to investigate whether pro-tenant residential laws actually help tenants as designed. In Connecticut, most landlord-tenant disputes are heard in informal settings by small claims magistrates. Their decisions are largely unreported and their decisions cannot be appealed. Thus, it is largely the small claims judge or magistrate who control whether the law, as written, will favor tenants. To conduct this study, the author conducted interviews of nine of the seventeen housing magistrate judges in Connecticut. In addition to the interviews with the nine magistrates, the author interviewed the caseload management specialist for small claims housing. Taken together, the interview findings suggest that landlords fare surprisingly well in small claims courts, in spite of pro-tenant protections. In fact, because civil penalties against landlords are rarely, if ever, imposed by magistrates, landlords need not expend much worry about such reforms.