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Wayne State University Law School




Tenants seeking to defend against eviction and to correct substandard conditions in their homes are hamstrung. Even in jurisdictions with “progressive housing policies,” there are steep doctrinal hurdles placed in front of tenants who try to establish a breach of the warranty of habitability and to defend against eviction. Such obstacles are baked directly into the judicial system and the standards that the judiciary applies in practice. While there are many systemic barriers to tenants vindicating themselves of the right to a fully habitable home, the most perniciously overlooked offender is a “substantiality” standard which trial court judges use to gatekeep whether code violations and other defects actually entitle a tenant to relief. For the great majority of tenants – the majority of whom are low income, of color, and without representation, an attempt to prove a substantial breach of the warranty of habitability is a high-risk bet. While large and institutional landlords bear the risk of some financial loss if tenants prove a breach of warranty at trial, tenants bear the risk of displacement and homelessness. Even tenants with representation face deep uncertainty as to whether a judge will decide (or else will instruct a jury in a manner to allow a jury to find) that the clear defects in a tenant’s home are “substantial enough” to warrant relief. This, in turn, creates undue pressure to settle an eviction case on landlord-friendly terms and to not vindicate a tenant’s rights fully. Under a standard of substantiality, the judiciary itself reifies the power imbalance between landlords and tenants by pressuring the parties to settle and by ultimately deciding that conditions in tenants’ homes are not “bad enough.” This Article draws on the Author’s experience as a practitioner in housing court to examine the substantiality standard, to explain how this standard provides a clear example of how landlord-tenant law nationwide works to stifle a tenant’s right not to be evicted from less than fully habitable housing, and ends by advocating for a reimagined standard which fully protects tenants and their rights.


Wayne Law Review forthcoming

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