March 11, 2022
Guideline 3
No tenant should be evicted without a meaningful opportunity to present proofs and arguments in a hearing and before a trained judicial officer that has the authority to consider any legal or equitable defense.
Commentary:
The right to be heard is fundamental to our system of justice. Some states, however, continue to "treat[] the undertakings of the tenant and those of the landlord as independent rather than dependent covenants," an archaic practice of treating a landlord's violation of the lease, landlord-tenant law, or other tenant protection such as an anti-discrimination law / as not necessarily supplying a defense to eviction. In such jurisdictions, a tenant evicted for an unlawful reason such as discrimination, or in violation of a building code or common law rule, may only bring a separate lawsuit for damages.
This practice occurs in considerable tension with the core constitutional premise that ''[d]ue process requires that there be an opportunity to present every available defense." While the U.S. Supreme Court has held that such "segregat[ion of] an action for possession of property from other actions arising out of the same factual situation" does not necessarily violate the Due Process Clause, allowing a tenant to be evicted without consideration of an applicable legal defense or especially in violation of an anti-discrimination law or other express tenant protection is contrary to modern notions of justice and undercuts the public policies those laws were enacted to serve.
Even where affirmative defenses and other counterarguments are available, eviction cases are often heard in tribunals where the adjudicator may lack basic legal training. Residential eviction cases are too important, and the governing law too complex, to be left in the hands of decisionmakers without legal training.