Rent Deposit Requirements: A Civil Court Poll Tax
Introduction
ABSTRACT
The implied warranty of habitability, read into nearly every lease for the residential use of real property in the United States, requires a property owner to maintain a rental home in a safe and habitable manner as a condition precedent to the receipt of the full contract rent. The enduring axiom of free and open access to the courts provides that the civil legal system is an accessible forum for the redress of and defense against claims. In many states, however, the warranty of habitability represents a limit to this access. In jurisdictions that maintain a rent deposit requirement, a tenant’s ability to raise a breach of the warranty of habitability in defense to an eviction proceeding is predicated on the tenant’s ability to deposit into the court all rent alleged to be owed to the landlord. Tenant- litigants, the majority of whom are poor people of color, are prohibited from raising a valid defense available at law if they cannot pay a fee they have not been proved to owe.
Rent deposit requirements render the implied warranty of habitability a right without a remedy. This subordination of tenants’ rights is the legal system’s intellectual inheritance from the legacy of property and labor theft from Black and Indigenous peoples to generate white wealth and perpetuate white ownership. Just as the poll tax limited the ability of Black people and poor white people to vote by predicating the ability to participate in the franchise on a required payment, rent deposit requirements make the ability of tenant-litigants to raise a valid defense to a proceeding contingent on payment of a substantial sum they have not been proved to owe. A tenant who has withheld rent in a good faith effort to compel the repair of significant habitability-impairing conditions in their home may nevertheless be evicted if they are unable to maintain their savings and make the required deposit to the court.
This Article positions rent deposit requirements as an economic restraint on access to the civil court system and examines this barrier in relation to the poll tax. A review of the unique and historically dispossessive nature of housing courts informs the analysis of the creation and proliferation of rent deposit requirements. As courts of poverty, traditional notions and standards of justice often do not apply, and judicial efficiency and lessors’ right to control and derive profit from their property are privileged over the health and safety of communities. It will also discuss the ways in which rent deposit requirements flatten reform efforts, like the burgeoning Right to Counsel movement, and undermine the legitimacy of eviction courts. Exploring solutions, this Article suggests procedural changes that would help mediate between the docket pressure faced by high volume courts and the access to justice concerns that rent deposit requirements raise.