Stability in one’s home is essential to safety, security, and human dignity. The right to court process prior to eviction should be unassailable. Yet, for some of the most marginalized residential occupants, that right does not exist. Nearly every state has codified laws that prohibit landlords from taking the law into their own hands to evict a tenant without a court order. In most states, however, the prohibition of so-called “self-help evictions” hinges on whether an occupant is considered a “tenant” or a “licensee.” The law shelters residential occupants who establish a formal landlord-tenant relationship in the premises where they reside. It guarantees a right to court process and legal recourse if that right is violated. The same is not true for countless others who rely on temporary or other informal housing arrangements, like roommates, transitional housing, and other shared living situations. Empowered by racialized economic structures that privilege wealth and capital, the law has divested such lesser-status residential occupants of any right to due process. That means eviction for any reason—or no reason—without notice or a court order.
When one’s home is stripped away, the consequences are dire. Housing insecurity can trigger instability in every aspect of a person’s life—employment, physical and emotional health, family and personal relationships, and financial security, among a cascade of others. And because people who rely on informal housing are disproportionately low-wealth people of color, the lack of protection following an extrajudicial ouster can be particularly bleak. For some, that displacement is a pipeline to homelessness. Being relegated to the streets means disparate exposure to illness, substance use, and indiscriminate policing. Homeless shelters—notoriously crowded and unsafe—are a far cry from a baseline of secure, dignified housing that should be a fundamental guarantee to every human being in a civilized society. The exclusion of such broad swaths of residential occupants ignores the realities of housing in the modern urban economy. The law can and should prevent the needless human suffering that necessarily flows from a self-help eviction. To date, however, jurisdictions across the country continue to permit landlords to weaponize extrajudicial evictions as a tool to oust non-tenant residential occupants from their homes.
Introduction
In his number one bestseller, Evicted: Poverty and Profit in the American City, Matthew Desmond chronicled individual stories of eviction to shed humanizing light on what the housing crisis actually means for real people.1 Desmond’s research, and the personal stories that stem from it, paint a compelling picture of the pain and trauma of eviction. The thrust of Desmond’s narrative is focused on the formal—i.e., lawful—eviction process of people the law recognizes as tenants. Today, however, informal housing arrangements prompted by housing shortages and insecurity have fueled the growth of a swelling underclass of non-tenant residential occupants who are disproportionately the targets of “informal,” extrajudicial evictions. While Desmond acknowledges and warns of a widespread but much less visible practice of “informal eviction,” he—like others who have analyzed the eviction crisis—tends to overlook the particular plight of non-tenant residential occupants who are largely excluded from even the inadequate legal protections at the center of his critique.
According to some estimates, “informal evictions”—including threats,2 harassment and buyouts,3 discontinuance of essential services,4 removal of personal property,5 and lockouts6—make up approximately half of “forced tenant moves.”7 Indeed, “what none of the casebooks address is the role landlord self-help still plays . . . because landlords [induce tenants to leave ‘voluntarily’ or simply lock them out] in a way that would seem to be indistinguishable from the uncivilized days of self-help evictions.”8 According to data from the Eviction Lab at Princeton University, in a typical, non-pandemic year, landlords file 3.7 million eviction cases in the United States.9 It is estimated that informal evictions are over five times as likely to occur as evictions effectuated formally through court process.10 And those numbers may have increased during the pandemic.11 Despite—or perhaps because of—eviction moratoria across the nation, advocates report that self-help evictions have become common in the era of COVID-19.12
People who do not have a formal lease or who rely on any number of informal housing arrangements are most likely to be evicted without court process.13 For every million households that are evicted each year, “there are many more millions who move out before they miss a payment, who cut back on food and medicine to make rent, who take up informal housing arrangements that exist outside the traditional landlord-tenant relationship.”14 Those occupants are Black and people of color,15 immigrants,16 poor or low-wealth,17 women with children,18 single adults,19 non-married cohabiting adults,20 people who are unemployed,21 elderly and ill,22 formerly incarcerated people,23 people who use drugs or have a history of substance use,24 people with disabilities,25 and people with histories of homelessness,26 among many other marginalized people who lack stable housing.27 The time is long overdue to abolish the notion that some people—based on contorted notions of status—are not entitled to notice or court process before they can be dispossessed from their homes.
Because of the prevalence of self-help evictions targeting the most marginalized of residential occupants, Attorneys General in California,28 Massachusetts,29 New Jersey,30 New York,31 North Carolina,32 and Rhode Island,33 among others, each issued warnings to landlords and guidance about tenants’ right to court process prior to eviction. Some state and local legislatures have also taken legislative action in an attempt to curb the proliferation of self-help evictions.34 Those actions were, apparently, deemed necessary despite nationwide eviction moratoria that prohibited most types of residential evictions.35 Despite those efforts and the ongoing incongruence of those efforts with the interpretation of laws governing self-help in the context of unlawful entry and detainer proceedings in court proceedings around the nation, illegal lockouts have continued unabated.36 Evidence suggests that extrajudicial evictions have increased during the pandemic.37
The focus of this advocacy, of course, is on the rights of tenants.38 While in common parlance, “tenant” may be understood to encompass all people who occupy a place to live in property owned by someone else, in reality, it is a term of art, like many others in the law, that serves a gatekeeper function to distinguish the “haves” from the “have nots.”39 There can be no doubt that the legal landscape for tenants is far from a panacea. For decades, tenants have fought for more just and equitable housing conditions.40 And tenants, of course, occupy a “second-class status” vis-à-vis homeowners in a range of legal contexts that themselves disproportionately target and affect communities of color.41
If it is true that tenants occupy second-class status vis-à-vis homeowners—which it seems fair to accede—it is not hard to conceive that non-tenant residential occupants would be relegated to some still further inferior status when it comes to legal protections.42 That inequity is not merely a question of access to counsel. Even though informal evictions “often would have been avoidable if the tenants had an attorney,” access to an attorney does not and will not solve the housing crisis.43 When laws deliberately exclude a particular class of residential occupants from legal relief, the presence of a lawyer becomes virtually futile. In the context of self-help evictions, non-tenant residential occupants have been intentionally subjugated by the law to maintain a hierarchical social order determined by race, class, wealth, and political power.
This Article argues that consistent with the principles of common law and the nature of the contemporary housing economy, the prohibition of self-help eviction should extend uniformly and without exception to all residential occupants. Part I discusses the development of the “landlord-tenant” relationship and the history of the common law remedy of self-help to evict. It explains how that history, grounded in racial capitalism, led to a prohibition of self-help that omitted licensees and other non-tenant occupants of residential premises. Part II dissects the historical malleability of how traditional occupancy statuses of tenant, licensee, and squatter have been defined subject to the whims of settler colonialists and the propertied class. Part III then sets out the case for the abolition of self-help against all residential occupants as a necessary measure to protect those who are both most at risk of extrajudicial eviction and most in need of stable housing. Finally, the Article concludes by urging courts and lawmakers to recognize a common-sense approach that prioritizes housing security and human dignity over antiquated principles of title grounded in hierarchy, white supremacy, and status.
I. The Development of the “Landlord-Tenant Relationship” and Genesis of Self-Help Eviction
“In many, if not all instances, a licensee, such as a roomer or lodger, may be subjected to self-help eviction, whereas a tenant generally may not be so evicted.”44
Social status and legal rights have long been entwined with the ownership of property.45 The concept of a landlord-tenant relationship dates back to English feudal times when leases were developed for commercial rather than residential purposes.46 Differing social positions and relationships were expressed through property.47 An “estate” in land was a euphemism for one’s social status.48 The hierarchical relationship between “landlord” and “tenant” evolved from an agrarian interest where the objective was to produce income from the cultivation of land.49 The “lords” of the land permitted serfs—the tenants—to use and live on the land in exchange for a portion of the profits derived from the serfs’ cultivation of the land.50
Serfs, because they were descendants of a disfavored class, punished for the commission of a crime, or persecuted due to extreme poverty, were consigned to a state of slavery where they cultivated the lord’s land in exchange for a plot of land from which they could extract subsistence.51 The serfs’ relationship to the land was considered a status, not a property interest, because the serf held the land entirely at the will of the lord.52 That status imbalance empowered the lord to evict the serf arbitrarily.53
Principles of property law operated as an apparatus to maintain social hierarchy and the tremendous power of the property owner. Social order and status flowed from the property law “principle of seisin, which not only embodied the modern conception of ‘possession,’ but also added elements of what today might be called ‘title.’”54 A freehold estate, for which seisin attached, held higher status and was afforded greater protection in courts than a leasehold estate for which seisin did not attach.55 In the absence of seisin, possessory remedies were unavailable.56 “By design, the courts and the remedies they provided were available only to persons with land and privilege and were not available to those without them.”57 That exclusion from judicial recourse for those of lesser status empowered the ruling class and gave rise to the common law right of landlords to exercise “self-help” to remove others from their land.58
Because of their superior status in the eyes of the law, landlords were historically vested with an absolute right to take possession upon breach or expiration of a lease.59 “So strong was the landlord’s right that it ‘was one of the few areas where the right to self-help was recognized.’”60 Under common law principles of self-help, landlords were permitted to enter their land and recover it by force.61
A. Limiting the Unfettered Power of Landlords to Use Self-Help to Evict
The power imbalance, and the violence it fueled, subjected the remedy of self-help to condemnation dating back centuries. The “indulgence of the common law,” which allowed forcible self-help, declared William Hawkins, “having been found by experience to be very prejudicial to the public peace, by giving an opportunity to powerful men, under the pretense of feigned titles, forcibly to eject their weaker neighbors . . . [gave rise to] many severe laws, to restrain all persons from the use of such violent methods of doing themselves justice.”62
As observed by Sergeant Hawkins in the early Eighteenth Century, the fraught history of self-help evictions at common law motivated a desire to adopt alternatives intended to prevent violence and breaches of the peace.63 Among the first steps in that evolution was limiting the landlord’s remedy to recovery of land in a “peaceable” manner, without the use of force.64 Judicial alternatives to self-help also developed. Chief among those alternatives was a statutory remedy for unlawful entry and detainer, which required court process prior to eviction.
The first forcible entry and detainer statute was enacted in England in 1381 with a purpose of preserving peace and preventing disturbances of public order.65 “Forcible entry,” initially codified under English common law statutes, was a criminal statute that made “an entry on real property peaceably in the possession of another, against his will, without authority of law, by actual force” a criminal misdemeanor.66 “Forcible detainer,” in contrast, is the civil law counterpart—a separate cause of action—where a civil remedy of possession may be available.67 The theory was that an efficient mechanism to resolve questions about the possession of real property could maintain peace and order in the immediate while leaving ultimate, sometimes more complicated, questions of title and the right to future possession to be determined by the court at a later date.68 “Known as the assize of novel disseisin, this early action for possession was considered ‘subsidiary and preliminary’ to an action for title.”69 Notably, that early prohibition against self-help “extended to persons having a right to possession,” not merely to those with a leasehold or estate in the land.70
Viewed as an affront to the respect for judicial process and citizen safety, self-help remedies have long been disfavored in the United States.71 For instance, in 1860, the Supreme Court of California reasoned that because “[t]he law gives ample redress” to landlords, to allow the “extraordinary mode [of self-help] for redressing personal grievances . . . would be of dangerous tendency, and lead to breaches of the peace and oppression.”72 Several states enacted forcible entry and detainer statutes to constrain the ability of landlords to evict without court process.73 Such statutes were among the first passed by many legislatures, some even before their states entered the Union.74 Today, pursuant to longstanding policy objectives to preserve the public peace and prevent landlords from taking the law into their own hands, nearly every state has abolished the use of self-help and permits landlords to evict tenants only through judicial proceedings.75 Because of antiquated exclusions grounded in racism and classism, however, that prohibition has remained a far cry from a panacea for the most marginalized residential occupants.
B. The Exclusion of Non-Tenants from the Prohibition Against Self-Help
As noted in the prior Section, most jurisdictions have adopted some formal prohibition of self-help evictions. Yet the law is far from settled in many jurisdictions. On the contrary, the law has dexterously carved out exceptions that leave the most vulnerable populations at risk.
In New York, for example, the state’s highest court has declared that “[t]he law is clear and well established that a landlord may not oust an occupant of an apartment from those premises without resorting to proper legal process and providing legal notice.”76 Nonetheless, New York courts have continued to permit the unceremonious ouster of non-tenants by extrajudicial means.77 Thus, a person who paid rent to occupy a room in a “supportive living facility” for over six months had no right to restoration when the landlord used self-help to evict him.78 Similarly, a boyfriend was permitted to evict his girlfriend with whom he had cohabitated for three years because, despite the long duration, she occupied the space with “less than a landlord/tenant relationship” as a licensee who was not entitled to notice or court process.79
Likewise, in Washington, D.C., despite broad recognition that the common law right of self-help has been abrogated by statute, a “roomer” who occupied a rooming house for eight months was not entitled to relief following his extrajudicial ouster.80 Similarly, in Maine, a woman who “was and had been for some time the occupant of her hotel room” was not entitled to notice or due process before being evicted for an alleged debt for past occupancy.81 In Michigan, one court explained that “[t]he distinction between a guest and a tenant is significant whereby a guest is not entitled to notice of termination and can be the subject of self-help eviction, including a lockout, by the proprietor, while a tenant has protection against such measures.”82 In New Hampshire, a husband and wife who resided in a hotel and paid eighty-four dollars per night for eighteen months were not entitled to a remedy for the owner’s use of extrajudicial means to evict because the court determined that they were “not tenants.”83 And in New Jersey, appellate courts have determined that protections against wrongful eviction simply “do not apply to transient or seasonal tenants residing at a hotel, motel or other guest house.”84 Numerous other states maintain the same incongruity, prohibiting self-help unless the occupant is among the disfavored class of residential occupants who—often because of race, class, immigration status, illness, financial circumstances or personal crisis—do not meet the formal definition of “tenant” under the law.85
II. The Construction of Residential Status as a Means to Maintain Hierarchy, White Supremacy, and Private Property
“To be a tenant a person must have some estate, be it ever so little, such as that of a tenant at will or on sufferance. A person may be in occupation of real property simply as a servant or licensee of his master. In that case the possession is not changed; it is always in the master.”86
Through the eighteenth and nineteenth centuries, the rules governing the landlord-tenant relationship remained largely unchanged from English common law.87 After World War II until the late 1960s, legislatures at the federal and state levels began to emphasize policies of affordability and habitability in housing.88 Pressured by grassroots activists, arcane common law rules gave way to a so-called legislative “revolution” in landlord-tenant law.89
Much has been written of a “revolution” in landlord-tenant law during the 1960s.90 That “revolution” refers to a series of reforms broadly intended to protect the rights of residential tenants, including the birth of the warranty of habitability, rent control, protections against retaliatory eviction, and the prohibition of self-help to evict.91 Those reforms stemmed from a renewed belief in the law as “an engine for social, political, and economic change” and the potential for the government to be a “positive force in people’s lives.”92 Although far from leading to a fundamental shift in the capitalistic social order, the period did mark a new era for the rights of tenants vis-à-vis landlords. But in the context of an evolving landscape of urban housing norms, broad swaths of residential occupants who are not clearly identifiable as “tenants” were left out.
The exclusion of certain occupants is consistent with the history of property law as a tool of social stratification. Property rights are fluid social constructs.93 They are designed to further political ends.94 And they function to maintain a racial hierarchy that furthers the accumulation of wealth by the monied class.95 The deliberate exclusion of non-tenants from the prohibition against self-help—and the necessary companion right to restoration—codifies a history of racial and economic inequality by erasing an entire class of residential occupants who are disproportionately Black, Indigenous, and people of color who are low-wealth or working class.
The absence of a formal landlord-tenant relationship is commonplace among marginalized communities. Informal housing markets exist and expand to meet the needs of individuals and families who cannot afford shelter in the formal housing marketplace.96 Noah J. Durst and Jake Wegmann argue that the prevalence of informal housing in the United States is obscured by a “blind spot” in housing-related scholarship that fails to consider it.97 Rather than recognize tiers of substandard housing in the United States, reference to and use of terms like “colonia,” “favela,” or “hood” serve to distance and racialize informal housing communities as “third world.”98 According to Durst and Wegmann, informal housing is “geographically uneven, . . . interwoven with formal housing . . . and hidden, both in a figurative and sometimes literal sense.”99 Given housing shortages, they posit that the state “willfully ignores, legitimates or benefits from certain extralegal housing market activities.”100 Because housing stock in informal markets meets needs that the formal market cannot, the willful failure to enforce codes and ordinances related to occupancy standards has become a de facto policy initiative to meet housing needs.101 Indeed, “[m]ost individuals who are unable to afford housing do not live in shelters or on the street but rather with friends and family members,”102 or have extended stays in hotels or motels.103 As of 2018, nearly four million people were in “doubled up” situations, “sharing the housing of others for economic reasons.”104 As discussed below, the informality of these housing arrangements has also obfuscated the ability of courts to clearly identify the residential status of many such occupants.105
A.Untangling Classifications of Those Who Occupy Land of Another: Tenants, Licensees, and Squatters
The power to exclude without resort to court process is muddled in a web of archaic classifications based on various circumstances that give rise to a person’s physical occupancy of property.106 At the most basic level, a person’s relationship to the land they occupy can be broken into two categories: people who enter with permission of the owner and those who do not.
1. Trespassers and Squatters
Entering the property of another without permission is trespass, an act that can subject the trespasser to civil and criminal liability.107 That act of trespass, or intrusion, however, does not necessarily render the trespasser a squatter, a term that describes a relationship to the property.108 Although the initial entry may have been a trespass, the trespasser becomes a squatter only after deciding to remain therein.109 Although a person’s criminal trespass may end after the initial entry, continued presence may establish a relationship with the property, transforming the trespasser into a squatter.110 Continued occupancy under a claim of title can ultimately transform the squatter’s adverse possession into legal title.111 Due to the correlation between the trespassory act and continued occupation of the premises without permission, courts have generally been more inclined to permit the self-help eviction of squatters.112 Somewhat confusingly, however, it does not follow that all occupants who occupy land with permission of the owner are protected from self-help.
Those who occupy land with permission of the owner are broadly classified as either tenants or licensees.113 A tenant is generally entitled to court process prior to eviction.114 A licensee is not.115 At common law, a licensee was one who merely occupied the land but lacked a legal “interest” or “estate” in the land.116 A person who held a possessory interest in the land of another—what is considered a leasehold—generally fell into one of four categories: term-of-years tenancy, periodic tenancy, tenancy at will, or tenancy at sufferance.117 The contemporary understanding of who is a tenant stems from those classes of tenancy at common law.
a. Four Categories of Tenancy at Common Law
The term-of-years tenancy is the nonfreehold estate that is most familiar in the modern rental economy. Under the terms of a tenancy for years, the tenant has the right to possess the land and exclude others from entering the land for a fixed period of time agreed upon by the tenant and landlord.118 A periodic tenancy resembles the term-of-years tenancy but instead of including a fixed time when the relationship ends, the periodic tenancy continues and is renewed automatically unless the landlord gives advance notice of termination.119
A tenant at will is one who enters upon land with the owner’s permission, and retains that permission when remaining on the land “for an indefinite period, even without the reservation of any rent[.]”120 Like the tenant at will, the tenant at sufferance also enters upon land with the permission of the landlord.121 Rather than remain in possession with express or implied permission of the landlord, however, the tenant at sufferance “holds over by wrong,” remaining in possession after the landlord’s permission is revoked or expired.122 “A tenant at sufferance has no estate nor title, but only a naked possession, without right and wrongfully, and stands in no privity to the landlord.”123 The tenant at sufferance, it has been said, is “the most shadowy estate recognized at common law” only distinguishable from the trespasser in that they “cannot be subjected to an action in trespass before entry or demand for possession.”124 Nonetheless, a tenant at sufferance—like each of the other classes of “tenant”—may not be evicted without court process.125
In contrast to a landlord-tenant relationship, which “exists for a fixed term, [is] not revocable at will, and [is] terminable only on notice,” a license “is cancellable at will, and without cause.”126 “Whereas a license connotes use or occupancy of the grantor’s premises, a lease grants exclusive possession of designated space to a tenant . . . .”127 That licensee status, it appears, is malleable. Although “mere occupancy,” even with consent of the owner, may only create a license, an occupant may elevate status to become a tenant at will, “rather than a mere licensee,” when there has been payment of rent or “an agreement of some sort from which a tenancy may be inferred.”128 And even though a license is generally “revocable at will without notice,”129 a license, too, becomes irrevocable where there is reasonable reliance by the licensee.130 Even though the remedy of self-help has generally remained available to an owner to remove squatters because “trespassers never gain[] possession,” the requisite legal possession that would erect a barrier to self-help arises when the owner offers “something like acquiescence in the physical fact of [the trespasser’s] occupation.”131 In other words, “self-help is not available when a landlord gives a squatter permission, whether implicit or express, to occupy his property.”132
In light of these inconsistencies, the case law is littered with acrobatics in logic and common sense undertaken by courts to interpret the legal significance of these purportedly distinct residential statuses. It is no surprise that, over time, these definitions have become muddied and conflated. For instance, according to the Court of Appeals in New York, if a person is “placed upon the land as a mere occupier, without any term prescribed or rent reserved, he is strictly a tenant at will.”133 That characterization is notably indistinguishable from the definition of a licensee as one who is granted “use and occupancy” of a premises without a fixed term.134 Another court similarly jumbles in its description of a tenant at sufferance as “a bare licensee.”135 In an apparent attempt to delineate the categories of occupant, yet another court acknowledges that the common law definitions of tenant at will and licensee “do tend to blur,” but they both “involve common concepts of temporary permission to occupy premises for an undetermined time period.”136 Thus, “synthesized down to its most basic common denominator,” the court reasons, “a ‘tenant at will’ recognizes a landlord-tenant relationship” while “a ‘licensee’ acknowledges an absence of a landlord-tenant relationship.”137 In other words, what distinguishes a tenancy at will from a license is the post hoc legal fiction that one creates an estate or “interest” and the other does not.138
B. Distinguishing a Leasehold from a License
To appreciate the thrust of this article—that it is time to abolish the anachronistic exclusion of non-tenant residential occupants from a right to court process prior to eviction—the history of that right and its limitations are instructive. According to Blackstone, there are four degrees of title: (1) naked possession or actual occupation, (2) right of possession, (3) mere right of property (without possession or the right to possession), and (4) complete title.139
Traditionally, to maintain an action for unlawful detainer, the occupant must demonstrate both the first and second degree.140 Whether an occupant is deemed to hold a lease or license has been essential to meet that burden and, importantly, to protect against the whims of overzealous landlords who take the law into their own hands to evict without due process.141
As discussed above, it is generally agreed that a lease conveys an “interest” in a particular space or real property while a license is merely permission to use or occupy the land.142 Accordingly, whether one may claim the panoply of rights that attach to a leasehold depends on whether one can establish a possessory interest in the residential premises—in other words, (1) actual possession and (2) a right to continued or future possession.143
1. Actual Possession
Black’s Law Dictionary defines “actual possession” as bare “physical occupancy or control over property,” in contrast to “possessory interest,” which is the “present right to control property.”144 “Actual possession exists where the thing is in the immediate occupancy of the party . . . .”145 “Possession” is satisfied by “any overt acts indicating dominion and a purpose to occupy and not to abandon the premises.”146 Indeed, “possession” and “occupation” “are frequently used synonymously.”147
Actual possession is a question of physical fact, and may exist unrelated to—or even in conflict with—enforceable possessory interest, which is a legal question.148 For instance, a thief may have possession of stolen goods but have no “right” to possession of those goods. 149 Similarly, a person can be in “actual possession” of a premises without having a “possessory interest” in it.150 Many who have no right of possession, like guests and roommates or squatters and trespassers, are nonetheless in “actual possession.”151 Similarly, a person who has a lease but has not yet physically entered the property may have legal possession—and a right to future possession—yet not actual possession of the premises.152
2. A Right to Continued or Future Possession
Naked possession absent an “interest” in land generally implies less protection to the occupant.153 What constitutes an “interest,” however, is scrambled by a history of inconsistency and contradiction. Joan Youngman hits the nail on the head:
A license is sometimes considered an “interest in land,” and sometimes not, and sometimes considered a type of hybrid, an interest but not a significant one. It is sometimes even considered a possessory interest. Some of these determinations explicitly recognize the subjective element of such classifications, possession being “a social rather than a physical fact.”154
Consistent with Youngman’s critique, reasoning to support a conclusion that a particular occupant is a licensee can be uncomfortably circular. Instead of deducing that an occupant is a licensee because they do not have a possessory interest, some courts have clumsily reached the inverse conclusion: an occupant has no possessory interest because they are a licensee.155
According to the First Restatement of Property, from 1944, a license is the “legal consequence of a consent given to one person to use the land of another.”156 That consent “includes always . . . [a] privilege to use certain land[, which] constitutes an interest in that land.”157 In contrast, however, the most recent update to The Law of Easements & Licenses in Land, the treatise compiled by Professors Jon W. Bruce and James W. Ely, Jr., asserts that “[g]enerally, a license is not viewed as an interest in the land.”158 The inconsistency is not merely an evolution of the times. While there is certainly authority for the proposition that a license is a privilege to use or occupy land but does not convey a possessory interest, authority to the contrary remains.159
Whether a particular occupant has the right to remain on land is both political and politicized. The elasticity of these principles is consistent with theories of private property and ownership deeply rooted in a history of racial capitalism, colonialism, and conquest.160
a. Colonialism and “Indian Title”
The imposition of Western notions of property rights vis-à-vis Indigenous peoples in the Americas provides a stark example. In 1955, the U.S. Supreme Court declared it “well settled” that the tribes that inhabited the colonized lands now denominated as states held claim to the land “under what is sometimes termed original Indian title or permission from the whites to occupy.”161
The Indigenous peoples, according to the Court, were “permitted” to occupy portions of the land after conquest.162 That so-called permission to occupy the lands—lands that they, of course, occupied for generations before the arrival of European settlers—amounted to what the Court described as “mere possession not specifically recognized as ownership.”163 Thus, “Indian title” was “not a property right” but rather a “right of occupancy” that could be terminated at any time by the sovereign.164 As argued by Professor Cheryl Harris, only possession and occupation of land by white people was validated for the purposes of establishing property rights.165 Even though Indigenous peoples were the first occupiers and possessors of land in the New World, “the possession maintained by [Indigenous peoples] was not ‘true’ possession and could safely be ignored.”166
Professor Joseph William Singer has critiqued the equation of Indian title with a license. Indeed, the Court’s description resembled the way that licenses have traditionally been defined—permission to be on someone else’s land that can be revoked at any moment for any reason.167 According to Professor Singer, however, the relationship is more akin to “the property rights in a leasehold [that] are split between landlord and tenant.”168 Just because the discovery doctrine “gives ‘title’ to the colonial power does not mean that ‘Indian title’ is not a property right.”169 Professor Singer charges that in reading judicial opinions, lawyers must interpret the rhetoric in light of the particular facts and the outcome reached by the court.170 The apparent thrust of Professor Singer’s argument is that because politicized legal determinations have resulted in fewer legal protections for tribal property rights than those given to non-Indians, “[o]ne can only conclude that property rights are being denied on the basis of race.”171
b. The “Master-Servant” Relationship
The advent of the master-servant relationship can be traced to chattel slavery. Apart from the dispossession and genocide of Indigenous peoples by colonial settlers, discussed above, there is no clearer subversion of rights than the enslavement of human beings. Black people who were enslaved in the United States had no property rights because the institution of slavery purported to convert their very bodies into property.172 As infamously asserted by Justice Taney in Dred Scott, “for more than a century,” the U.S. Constitution permitted Black bodies to be “bought and sold, and treated as an ordinary article of merchandise and traffic, whenever a profit could be made by it.”173 In his concurring opinion, Justice Daniel expounded. Enslaved people of African descent were, he said, “strictly property,” who lacked legal capacity “to deny the relation of master and slave, since none can possess and enjoy, as his own, that which another has a paramount right and power to withhold.”174
Just as the status of enslaved people as slaves served to strip the legal capacity to “possess and enjoy,” so too have the statuses of servant, laborer, and licensee operated to suppress basic protections and property rights. Accordingly, “[a]n action for forcible entry and detainer will not lie where the ousted occupier is a servant or mere licensee. In such a case the possession is not changed, for it remains in the master or licensor.”175 Likewise, where an employee’s occupancy on land is “merely incidental” to their employment, courts have overwhelmingly declined to find any right to notice or court process prior to eviction.176
The master-servant relationship has been used to justify the dispossession of Black and working people for over a century. In Missouri, it has long been held that people who occupy property as sharecroppers have no entitlement to statutory notice prior to eviction.177 “While a tenant has a possessory interest in the land, the sharecropper has only an incorporeal interest such as a license to farm the land.”178 That legal premise permitted the mass eviction of Missouri sharecroppers by landowners in the late 1930s. Under the Agricultural Adjustment Administration (AAA) of 1933, part of the New Deal,179 the federal government implemented a controlled shortage of food on the theory that reduced supply would drive up costs and increase income for farmers.180 To achieve that result, the government paid farmers to hold some of their land out of production.181 Landowners were expected to share the government subsidies with the croppers who occupied the unfarmed land and were left without work due to the stoppage.182 The mostly white farmers instead effectuated mass evictions of the mostly Black sharecroppers without notice and with apparent impunity.183
Promoting a series of idyllic social norms was embedded in the implementation of New Deal “relief and land adjustment programs.”184 The “problem of tenancy,” argued some New Dealers, was the assumed incompatibility with capitalistic objectives to produce in terms of creating market value and wealth.185 Failure to cede—or the presumed incapacity to cede because of preconceived notions grounded in white supremacy186—to normative cultural attitudes, including “responsibility of autonomous family units, rational planning, efficiency measured in terms of financial outcomes, deferred gratification, sobriety, and hard work,” guided government policy of who should benefit from federal resettlement programs and who should be evicted.187 Policymakers “viewed sharecroppers and tenants almost entirely through their contractual economic relationships with their landlords.”188 As such, the lives of croppers were commodified—focused on production of material goods with market value—to strip away broader relationships to family, community, and other sources of income beyond farming.189 Those who ceded to the dictated farming norms remained; those who did not were evicted.190 The result was dispossession as a tool to convert “erstwhile tenants into day laborers.”191 The invisibility of those dispossessed sharecroppers illustrates the use of law and policy to “define[] who is worthy and who is expendable.”192
Maintaining a formal—even if flimsy—distinction between tenant and other classes of often non-white occupants was essential to divest such occupants of any rights over the property they occupied or even the fruits of their own labor.193 For example, in 1877, an Arkansas court held that a Black sharecropper who farmed the land pursuant to an agreement with the owner could not sell or mortgage any of the crop when the owner declined to provide the agreed-upon share to the cropper because he was “only a cropper, [who] had no interest in it he could either sell or mortgage.”194 Similarly, in 1921, in Oklahoma, the court considered whether the relationship between a Black sharecropper and the landowner created that of “landlord and tenant or simply that of servant.”195 There, the cropper claimed that he had a one-half interest in the crop that he harvested because the owner had agreed to share one half of the proceeds from the harvest.196 The court concluded, however, that he had “no legal possession of the premises” and was merely a laborer—“a servant”—not a tenant, because he “ha[d] no estate in the land.”197 Likewise, in 1923, an Arkansas court, after twice noting that the occupant was “a negro,” concluded that the white owners maintained legal possession of the land because the occupant “was not technically a tenant of the appellees, but only a share cropper or laborer” and thus had no right to notice.198 In Missouri, in 1982, a court concluded that a Black sharecropper was not entitled to notice prior to eviction because he asked for permission to live on the premises.199 That request, according to the court, was indicative of “mutual recognition” that the occupant did not have legal possession of the land.200
Given the prevalence of sharecropper arrangements during Reconstruction and well into the 1900s, these examples are more than mere anecdotes.201 Relegating the occupancy status of Black, Indigenous, and other people of color as well as that of poor and working people was a critical device to preserve the wealth and power of the propertied class.202
Today, many informal housing arrangements similarly subvert occupancy status to something “less than” tenant, leaving broad swaths of residential occupants at the mercy of the landlord and perpetually at risk of eviction on a moment’s notice or without any notice at all.203 It hardly seems a coincidence that such informal housing situations, where the law squelches even the most basic due process rights, are the necessary housing of last resort for some of the most marginalized groups in the modern housing economy.204 Now more than ever it is time to put an unequivocal end to the use of self-help to evict any residential occupant.
III. The Case for Expanding the Prohibition of Self-Help Evictions and Right to Restoration for All Residential Occupants
“[I]t would [be] unjust, and contrary to the law of nature, to [drive] . . . by force [a person who is in the occupation of any determined spot of land].”205
The maintenance of “purely formal distinctions about economically equivalent relationships” has been a desirable tool wielded by propertied people to circumscribe the rights of occupants and limit liability.206 Thus, “well advised parties” can determine matters of when and how another’s occupancy of property can be terminated by simply opting to denominate an agreement as a “license” as opposed to a lease.207 The availability of basic due process rights that exist to promote and preserve housing security should not hinge on arbitrary designations of occupancy status.
It is a myth to suggest that a person’s occupancy status is purely a product of individual choice or preference. As discussed above, determining whether an occupant is classified as “licensee” or “tenant” is largely circumstantial, subject to particular framing and normative values ascribed by the court.208 Like the legal analysis in Tee-Hit-Ton Indians that served to deprive Indigenous people of any future right in their lands,209 or sharecropper cases where occupants were stripped of any protection to remain in occupancy of the land where they lived and worked,210 classifying an occupant as a licensee, as opposed to some other legal status, has served as a tool to quash the housing rights of Black, Indigenous, and other people of color. The inferior and superior statuses are not derived from any “inherent superiority” of any particular race, class, or occupancy status, but instead from manipulation of how laws are created to enforce the rights of some, but not others.211
There are numerous examples of analogous ad hoc justifications for a finding that a particular occupant should or should not be relegated to the underclass of licensee. In Francis v. Trinidad Motel, the New Jersey Superior Court shed light on just how easily courts can shift the law to protect a litigant who the court views as desirable.212 In Francis, the court discussed the pliability of a prior decision, Poroznoff v. Alberti, where it concluded that the YMCA could evict an occupant without court process even though the room in the YMCA was the occupant’s only residence and he had been residing there on a week-to-week basis.213 The Poroznoff decision, the court explained, “did not mean that a hotel resident could never acquire the protection [against self-help evictions].”214 On the contrary, it continued, tenancy status was established in another case where a family resided in a hotel but did so with “all of the necessary amenities for total living.”215 Noting that the hotel had a stove, oven, and refrigerator, that the family had their own linens and did their own housekeeping, that the wife was a registered voter, and that the two children attended public school based on the hotel’s address, the “family occupation of their hotel premises, had escalated to the complete living experience exemplified by the traditional family rental of an archetype apartment.”216
In New York, the state’s highest court has similarly relied on subjective norms to concoct a “familial relationship” exception that further obscures the definition of “licensee.”217 In Braschi v. Stahl, the New York Court of Appeals reasoned that the legislature intended to extend the protection of the New York Rent Stabilization Law to “those who reside in households having all of the normal familial characteristics.”218 Based on a series of factors, including “the exclusivity and longevity of the relationship, the level of emotional and financial commitment, the manner in which the parties have conducted their everyday lives and held themselves out to society, and the reliance placed upon one another for daily family services,” the court showcased how easily normative values and priorities can be marshaled to promote an otherwise prototypical licensee to a more secure occupancy status.219 According to the court, the goal in making such determinations is to draw a distinction between those who are “genuine family members, and those who are mere roommates.”220 That malleability has, of course, been beneficial to non-tenant residential occupants and their families who, despite maintaining a family connection that departs from the heteronormative values that are traditionally legible in the law, have been able to succeed to the status of “tenant” upon the death of a loved one who previously secured that status.221 Reference to Braschi is not meant to criticize the outcome in that case but to instead reinforce the subjective arbitrariness that may often underlie a determination of occupancy status.
As a result of that arbitrariness, distinguishing the various classifications of estates can be elusive.222 Determining who is in “possession” or who has an “interest” in a particular residential setting has been fraught.223 Indeed, the meanings of “possession” and “interest” have been obscured and complicated to manipulate a barrier between those who have a remedy at law and those who do not.224 Eliminating the legal significance of that distinction for the purposes of unlawful entry and detainer is a tangible legislative step to fully realize an unequivocal end to self-help evictions.
A. The Spirit of the Law that Led to a Prohibition of Self-Help as to Tenants Applies Equally to Licensees
Despite the existence of an unwieldy hierarchy of occupancy statuses, the primary aim of contracting with a landlord to occupy a house, apartment, room, or some portion of a room is generally to secure living space.225 The nuanced distinctions, although interesting for the law student or legal scholar, have little significance for most residential occupants.226 Housing insecurity is traumatic and destabilizing no matter how one’s formal occupancy status is defined.227 Promoting peace, order, community safety, and adherence to the rule of law are the stated reasons for which self-help has traditionally been prohibited. If those principles apply to all residential occupants, regardless of one’s particular status, the exclusion of any occupant from the prohibition of self-help eviction can never be justified.
1. Manipulating Rationales for the Prohibition of Self-Help Eviction as a Tool to Exclude
In Mendes v. Johnson, the District of Columbia Court of Appeals articulated four rationales to support its conclusion that a landlord’s common law right of self-help to evict a tenant was abrogated by statute.228 First, self-help evictions could only be avoided if the statutory remedy was exclusive.229 Second, permitting self-help in an urban area with housing shortages would invite violence.230 Third, allowing self-help would deprive ousted tenants of an opportunity to assert various equitable defenses and rights afforded by statute.231 Finally, a law-abiding society in which there are legal and political safeguards against oppression and abuse requires that those who have grievances rely exclusively on political, legislative, and judicial processes to seek redress.232 Those rationales would seem to support a sweeping prohibition of self-help eviction, regardless of occupancy status. Twenty-three years later, that court nonetheless declined to extend the prohibition of self-help to a roomer who occupied a hotel room for eight months.233
In Harkins v. Win Corp., citing unspecified “unforeseen consequences,” the court first reasoned that its prior holding, abrogating the common law right to self-help, should be confined to situations where a landlord-tenant relationship is present.234 Next, without any apparent support in the record, the court reasoned that the potential for violence in the context of a self-help eviction of a roomer is “somewhat diminished” because “[a] roomer may not have as much need to remain in a particular accommodation and may be less affected by any housing shortage” than a tenant who may have more difficulty “find[ing] a new permanent residence to house all of their possessions.”235 The court then dismissed the final two rationales from Mendez. Roomers, the court said, have less need to avail themselves of equitable remedies because a “roomer generally has less of a need to remain in possession of a particular accommodation while engaging in litigation.” Finally, the court barely recognized the final Mendez rationale, noting only that its “research ha[d] not revealed” precedent that would tend to support why this situation should be redressed by “political, legislative, and judicial processes” as opposed to self-help.236 Acknowledging the “legitimate concerns” of long-term residential occupants who are not tenants, the court concluded that resolution of questions regarding the rights of such occupants “is probably better suited, and prudently left, to the legislative forum.”237
Conspicuously absent from the court’s reasoning was any concern about basic shelter, safety, or wellbeing. The refrain mirrors that of the past: the law should be responsive to the need to protect private property. Because non-tenant occupants, in the court’s view, may be less likely to show any connection to tangible property, they are beyond the reach of the law’s protection.
2. A Simpler Approach: Restricting the Inquiry to Actual Possession
Viewing the issue of self-help eviction through the lens of housing as a fundamental right grounded in equity and humanity, rather than a mere principle of property law, supports a simpler inquiry for courts in self-help eviction cases. That narrow inquiry—whether the ousted person was in actual possession of the premises at the time of the alleged ouster—would promote more housing stability in all types of residential settings.
A common-sense approach that would confine the inquiry to actual possession is not novel. From the earliest days of common law, “[p]ossession was the primary substantive issue, and the primary remedy available was the return of possession” in property disputes.238 Where entry by force upon a person in actual possession is shown, it is generally understood that the person excluded is entitled to redress and “[q]uestions of title or right of possession” are irrelevant.239
The inquiry in such cases [should be] confined to the actual peaceable possession of the [occupant] and the unlawful or forcible ouster or detention by [the landlord because] the object of the law [is] to prevent the disturbance of the public peace, by the forcible assertion of a private right.240
Some jurisdictions have begun to adopt such an approach. In California, for example, the prohibition of self-help appears to extend to cover all occupants in actual possession of a residential premises.241 Similarly, in Maryland the statutory protection from self-help evictions extends to all “protected resident[s],” which include “a grantee, tenant, subtenant, or other person in actual possession.”242 Notably, that Maryland statute was created in direct response to the state’s highest court sanctioning peaceable self-help as an available remedy for landlords to evict.243 Connecticut courts have also made overtures to abandon the licensee-tenant distinction in favor of an inquiry exclusively restricted to actual possession.244 In identifying the intent of the Connecticut statute prohibiting self-help to prevent the risk of “public disturbance, and perhaps of serious bodily injury to the parties,” the Connecticut Appellate Court has concluded that the forcible entry and detainer statute was created to protect all occupants, even “a trespasser” from eviction “by any but lawful and orderly means.”245
The simplified approach advocated here is fundamentally grounded in the belief, theory, and principle that people who occupy any space for residential purposes necessarily have a cognizable interest in that property. That “interest” may look different from the way such interests have been viewed in the past, but the fluid nature of the law allows—or perhaps demands—it to fluctuate with the changing times.246 A series of public health and safety principles militate in favor of a broader, more holistic, and more practical view of who has an interest in a particular residential space.247
B. Public Policy Grounded in Community Safety, Health, and Wellbeing Also Militates in Favor of Extending the Prohibition Against Self-Help to All Residential Occupants
It has been argued that occupants of homeless shelters should not have a right to court process because they cannot establish a landlord-tenant relationship.248 According to that argument, applying a landlord-tenant framework in the context of shelters would be “counterproductive” because it would “deprive shelters of their ability to easily remove problematic residents, even when they threaten the staff and other residents.”249 Resources should be spent instead on “helping as many [people] as possible, not battling litigious residents.”250 Setting aside the flawed premise that easy removal of “problematic residents” should be the guiding rationale for any policy proposal that relates to people who are housing insecure, that argument stifles the opportunity to imagine a framework that recognizes and promotes a principle of housing as a fundamental human right. The stakes are high, and the consequences can be dire for any tenant who is evicted without court process. But those stakes are even higher for people who occupy any number of non-traditional residential spaces without the security of a formal landlord-tenant relationship.251 Protecting all residential occupants—regardless of status—from self-help eviction would both prevent homelessness and promote public health, and also discourage over-policing of low-income communities of color.
1. Prevent Homelessness and Promote Public Health
The link between eviction and homelessness is well documented.252 For a substantial and increasing swath of renters, eviction—whether by court order or self-help—means homelessness.253 Noting the connection between self-help evictions and homelessness, it was argued over twenty-five years ago that barring self-help could reduce homelessness “by putting impartial judicial authorities—rather than self-interested landlords—in control of whether tenants should be forced out of their homes.”254 Both the individual occupant and the larger community have an interest in preventing homelessness.
For the individual, court process “confers a significant substantive benefit on the occupant” by affording a right to occupy the premises for the duration of court proceedings and, if necessary, use that time to seek alternative housing.255 Even where an occupant may have no right to remain in possession of the premises long term, notice and process stymie the immediate chaos and crisis of extrajudicial ouster.256 When a low-wealth person is excluded from the residential premises they occupy as “home,” they may not be able to point to tangible losses in the form of personal property.257 Because damages in wrongful eviction cases are often limited to “actual damages,” in the form of lost personal property, that means that the lowest income and most vulnerable occupants may be left without remedy at law.258 Indeed, “[t]he demoralizing violence of being plunged into homelessness is not pecuniary loss.”259
There is, however, a “human cost” to homelessness.260 Housing displacement can force people into crowded and unsafe environments.261 It may decrease financial stability and have detrimental impacts on employment, education, civic involvement, personal relationships, and on physical and emotional health.262 The life expectancy for people experiencing homelessness is nearly half that of the general population.263 People who experience homelessness are disproportionately affected by respiratory disease, diabetes, substance use disorders, and mental health disabilities.264 They are also more likely to contract communicable diseases such as HIV, Hepatitis B, typhus, and Covid-19.265 “The mere threat of eviction can increase stress levels, anxiety, and depression—all of which can weaken the immune system.”266 Just as people experiencing homelessness are disproportionately affected by physical, emotional, and mental health disabilities, they are also disproportionately the targets of physical and sexual assaults.267 Eviction and homelessness also exacerbate the risk of drug overdose.268 It is no exaggeration that for some, even with the benefit of court process, eviction is a matter of life or death.269
For the broader community, homelessness also carries an array of “public and social costs.”270 When people are forced from their homes, constituencies must bear the costs of increased need for emergency services at city shelters, hospitals, and other community-based resources.271 And, as discussed below, housing displacement may lead to growth in actual or perceived crime rates that both contribute to and purport to justify over-policing in the low-income communities of color that bear the brunt of fallout from housing displacement.272
2. Discourage Overpolicing of Targeted Communities
People who are evicted, housing insecure, and unhoused are more likely to have contact with the criminal legal system.273 Eighty-six percent of unhoused single adults are Black or Latinx, populations that already bear the brunt of racialized policing.274 Paradoxically, the overpolicing and indiscriminate arrest of Black and Brown people puts those communities at an even higher risk of eviction.275 “These communities are, in a word, ‘doubly burdened’ by the simultaneous threats of both victimization and criminalization. They are overpoliced, yet often remain underprotected.”276 As activists have long argued, police are used as a tool to protect property rights rather than human rights.277 “Police brutality and the behavior of the landlords [have been] connected in the minds of many of the [Black Lives Matter] protesters.”278 The Defund Police Movement has also highlighted the interconnectedness between policing and housing security.279 Indeed, in many instances, police make evictions possible as agents of social control, deputized to support the commodification of the housing market by “cleaning up our streets.”280
The process of eviction, particularly self-help eviction, is violent.281 Nonetheless, ambiguity about who the law does and does not protect from self-help eviction has facilitated the ability of landlords to commandeer police assistance to effectuate extrajudicial ousters.282 Landlords can and do rely on the police to circumvent court process to remove unwanted occupants.283 In contrast to landlords, the occupants who are most likely to be targeted for a self-help eviction are unlikely to involve law enforcement to help protect their rights.284 Even though illegal eviction is a criminal offense that can—and should—subject a landlord to criminal penalties, it is the ousted occupant, not the landlord, who is often at risk of arrest, injury, or other ramifications of the criminal legal system for contacting the police.285 By facilitating removal of occupants who are not generating profit for landlords, the police are complicit—even instrumental—to the ability of landlords to increase rents, which drives housing displacement and decimates communities.286 Just as so-called “Broken Windows Policing” facilitates the criminalization of unhoused or underhoused people, the failure of police to enforce laws that protect occupants from self-help eviction contributes to a cycle of housing insecurity that promotes that criminalization.287 As such, “[f]ighting for Black housing is fighting for Black lives.”288
C. Grassroots Collective Action to Prevent Illegal Eviction
To be clear, this Article does not argue that more policing should be the strategy to end self-help evictions. To the contrary, grassroots activism rooted in principles of mutual aid and community solidarity militate in favor of an abolitionist approach to the self-help eviction crisis.289 Rather than rely on the criminal legal system—stained by an ongoing legacy of racism and inequality—community-based organizations around the nation have demonstrated the power of collective action and coordinated resistance to derail the eviction machine.
Community activists have taken to the streets and put their bodies on the line to successfully prevent landlords—and police—from circumventing lawful court process to evict.290 In Memphis, for example, community activists used social media to put out a call for community members to descend on the home of a renter to block a landlord’s repeated attempt to evict without court process.291 Activists took shifts to monitor the resident’s home and physically prevent the ability of the landlord to effectuate the self-help eviction.292 In Brooklyn and Queens, New York, community activists similarly used collective action to support residents in their communities when landlords attempted to take the law into their own hands to evict.293 In both instances, neighbors and activists joined the ousted residents at the premises to demand that the residents be allowed back into their homes.294 In Detroit, activists have mounted campaigns to end the practice of local police assisting landlords who exercise self-help to evict, which ultimately led the Detroit Police Department to issue a formal apology.295 In Chicago, grassroots tenant unions help fight illegal lockouts by replacing locks for ousted tenants, providing mutual aid and rent assistance, and mounting public campaigns.296 Similar coordinated resistance has been successful around the nation.297
Examples of community resistance, resilience, and action are too numerous to cite. Nonetheless, each provides a window into the work of affected people that has effectively deterred and combatted self-help evictions when the law falls short. Importantly, these examples also remind one that legislative reform and courtroom advocacy alone will not resolve this crisis. As with the most consequential legislative and policy shifts, change is only possible where legislative reform is coupled with on-the-ground activism and community investment.
D. An Unequivocal Prohibition of Self-Help Must Contemplate a Right to Restoration
A paper ban on all self-help evictions is not enough. Although many states provide a right to restoration for occupants who are evicted without court process, several others do not.298 That remedy is essential. Despite a good faith attempt by the New York State Legislature to end self-help evictions, the courtroom aftermath of that remedial legislation illustrates the shortcomings of legislative reform that do not fully appreciate the stakes for people who are evicted through extrajudicial means.299
In 2018, the Appellate Term for the judicial department that encompasses Brooklyn, Queens, and Long Island dealt a blow to residential occupants who do not meet the definition of “tenant” under state statutes.300 In Andrews v. Acacia Network, the court determined that an occupant of a shared room in a supportive living facility was a licensee because he was “not given exclusive dominion and control of a part of the premises” and there were no locks on the “dormitory-style rooms.”301 Thus, the occupant, who paid rent to reside in the building for over six months, could not maintain a proceeding to be restored to possession after the landlord—a non-profit organization charged to provide supportive services to residents—removed him from the premises without resorting to court process.302 According to the trial court’s decision, the reason the organization opted to take the law into its own hands to evict the occupant onto the streets on a moment’s notice was because staff “didn’t like [the occupant’s] attitude and that [the occupant] was smoking cigarettes.”303
Litigation about whether an occupant was a “licensee” or “tenant” in the context of an unlawful entry and detainer proceeding “created a procedural quagmire that wasted time and squandered scarce judicial resources—all while the occupant remained homeless, barred from reentering [their] home.”304 In 2019, “[t]enant activists and advocates successfully lobbied to modify the [New York State unlawful entry and detainer] statute, which now clearly provides a right to court process for all ‘lawful occupants.’”305 Prior to the amendment, the statute provided that “[a tenant] shall not be removed from possession except in a special proceeding.”306 The legislature sought to broaden protections by amending the language to expand upon the class of residential occupants who are covered.307 Accordingly, the statute was amended to read: “No tenant or lawful occupant of a dwelling or housing accommodation shall be removed from possession except in a special proceeding.”308 That should have resolved the problem, but it did not. The status of licensee continues to exclude marginalized residential occupants from the protections against self-help evictions.309
In the context of self-help evictions, restoration to possession “has always been the primary civil remedy.”310 However, the purpose of such statutes was also to benefit landlords. In New York, for instance, summary eviction proceedings were “designed to remedy [the denial of justice to landlords] by providing the landlord with a simple, expeditious and inexpensive means of regaining possession of [the] premises.”311 While the benefit conferred on landlords in summary proceedings remains intact, the promise for non-tenant residential occupants remains elusive.
Without a remedy at law, a paper right is meaningless. When the right at issue is the uninterrupted possession of one’s home, the failure to attach swift judicial remedies to enforce that right can be devastating.312 Failure to attach relief to the expanded prohibition against self-help eviction is exactly what happened in New York. Because of a complicated interplay—and apparent disconnect—between the statutory restrictions on self-help and the framework to seek relief when a landlord disregards those restrictions, some courts have found a way to maintain the ancient status quo. Thus, even though courts have acknowledged that an extrajudicial ouster violates the law, they have declined to order restoration on the premise that the legislature failed to provide restoration as a remedy.313
Even before the current judicial bolster of the dichotomy between licensees and tenants, courts have exercised the flexibility of the remedy of restoration to exclude non-tenants from relief following an extrajudicial eviction. “Under the so-called ‘futility of restoration’ doctrine, courts decline to restore an ousted occupant to possession where it is clear that the landlord could prevail were it to commence a summary proceeding to evict that occupant.” Main, supra note 6, at 51; see Brown v. 165 Conover Assoc., 5 Misc. 3d 128(A), *1 (App. Term Oct. 21, 2004) (“Since petitioner, the sister of the deceased tenant of record, did not claim tenancy rights, her status was that of a mere licensee whose license expired upon the death of the tenant of record. In these circumstances, restoration should not be granted.”); Walker v. Daramdas, No. LT-304246-21/QU, *4 (N.Y. Civ. Ct. July 29, 2021) (noting that while there is “no dispute that tenants have a right” to maintain an unlawful entry and detainer proceeding seeking restoration to possession, a licensee is not entitled to restoration). Likewise, landlords are rarely prosecuted for the crime of illegal eviction.314 And the tail of archaic legal status distinctions continues to wag the dog of legislative process. Indeed, at least one court has relied on principle that “licensees do not have possessory interests” to conclude that licensees are, therefore, “not ‘lawful occupants’” for purposes of the prohibition of self-help eviction, effectively nullifying the legislature’s 2019 amendment to the law.315 The perverse result is an unspoken renewal of the landlord’s license to employ self-help to remove the most vulnerable of residential occupants without court process.316
The simplified approach suggested here is grounded in the belief, theory, and principle that people who occupy any space for residential purposes necessarily have a cognizable interest in that property. The failure to recognize that interest—the fundamental human interest in safety, security, dignity, and equality—allowed and continues to fuel settler colonialism. So too here, in the context of residential housing, a legal fiction that some residential occupants have an interest in safety, security, and due process while others do not continues to fuel a power imbalance that deputizes private property owners with a ruthless and unchecked license to dispossess.
Conclusion
“But how or when, then, does property commence? I conceive no better answer can be given than by occupancy . . . . All the writers on international law concur in the doctrine that actual occupancy is essential to perfect the title to land newly discovered and vacant.”317
Complacency with the shortcomings of an “ancient body of law long unsuited to reform” can lead to acceptance of the misery inflicted by operation of that law.318 The perverse result is the injustice that law permits may “now seem[] normal enough, even fair.”319 At the cusp of the so-called “revolution” in landlord-tenant law, some fifty years ago, advocates and scholars posited that agrarian roots of the law should be abandoned as “old ideas” that were “strangely and radically out of joint” with modern urban housing realities.320 Antiquated laws gave way to a new landscape intended to guarantee basic standards of habitability and protect the rights of tenants.321 That revolution also led to a codification of laws that prohibited self-help eviction of tenants.322 Non-tenant residential occupants were left out then. In many jurisdictions, they remain left out today.323 Based on contorted, archaic notions of occupancy status, tenants are protected, while residential occupants who are deemed less than tenants are not.
Attempting to distinguish those residential occupants who have a right to court process versus those who do not has been a demonstrably futile exercise in circularity. To characterize one residential occupant as having an “interest” to which a bundle of rights attaches, and another bereft of that interest often results in a distinction without a difference.324 When the goal is to protect people from being thrust out of their homes without notice or court process, those distinctions are and should be irrelevant.
For the purposes of liability in tort, an owner’s duty to protect occupants historically depended on the occupant’s common law status as invitee, licensee, and trespasser.325 In recognition of modern realities, and to prevent confusion and judicial waste, the imposition of particularized duties based on those classifications has been abolished in favor of “a general duty of care to anyone lawfully on the premises.”326 That change was deemed necessary to “bring the common law into accord with present day standards of wisdom and justice rather than to continue with some outmoded and antiquated rule of the past.”327 So too here, for the purposes of unlawful entry and detainer proceedings—the essence of which is the loss or preservation of one’s safety, shelter, and stability in their home—consideration of an occupant’s common law status of licensee should be eradicated. It follows that consistent with the principles that underly the prohibition of self-help to evict tenants—preventing violence and promoting housing security—the law should extend uniformly and without exception to all residential occupants.