American eviction proceedings are governed by a fusion of property and contract law. The law’s narrow understanding of eviction ignores the importance of a dwelling place to its occupants. Property is not merely land or a structure on that land; it is a home with the power to shape communities, social relationships, and human values. Current eviction law, however, is not designed to consider these facets of property. Rather than balancing the interests of the landowner against those of the tenant, courts render judgment based on superior title and contract obligations without regard for what will happen to the tenant after displacement. The result is a system rooted in twentieth-century policies that led to the privatization of housing for marginalized communities, which in turn catalyzed the commodification of home and created systemic exploitation of the rental housing market. These processes are reinforced by eviction law doctrine that disproportionately centers the interests of property owners while minimizing the possessory interests of tenants. The incorporation of proportionality in eviction hearings, therefore, is a corrective counterbalance that respects private property rights while recognizing the paramount importance of home, where the average hearing concludes in under two minutes and landlords succeed in over eighty percent of cases.
It doesn’t have to be this way. The International Covenant on Economic, Social and Cultural Rights, signed and ratified by nearly every nation except the United States, obligates member states to protect tenants against eviction. In Europe, specifically, tenants can invoke a proportionality defense in eviction proceedings. Asserting their rights under Article 8 of the European Convention on Human Rights, tenants may implore courts to weigh the harms of eviction against the rights of the landlord. The result is increased residential stability, improved health, and decreased unemployment. Scholars have thus far ignored the possibility of incorporating such a balancing test into American eviction jurisprudence, in large part because there is not a constitutionally protected right to housing in the United States.
This Article argues that the absence of a constitutional right to housing does not bar the introduction of proportionality into American eviction proceedings, a change that has the potential to reshape the lives of individuals and communities. Drawing on sociological literature, this Article documents twentieth-century policies that led to the privatization of housing for marginalized communities, which in turn catalyzed the commodification of home and created systemic exploitation of the rental housing market. These processes are reinforced by eviction law doctrine that disproportionately centers the interests of property owners while minimizing the possessory interests of tenants. The incorporation of proportionality in eviction hearings, therefore, is a corrective counterbalance that respects private property rights while recognizing the paramount importance of home.
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