The Limits of Good Law: A Study of Housing
Court Outcomes
Nicole
Summers, Harvard
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. 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 1,200
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 definitively that an operationalization gap
exists in the law. While prior studies have observed that the warranty appears
to be less effective than originally envisioned, 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.