The Post-it Note Problem: How Informality Fuels the Eviction Crisis

Millions of people in the United States face eviction each year. According to The Eviction Lab, an average of “7.6 million individuals were threatened with eviction every year between 2007 and 2016.”[1] The number of children facing the threat of eviction in the U.S. each year is even more alarming as nearly three million children face eviction each year.[2]

According to the ACLU, for 40 years, rents have risen far faster than wages.[3] At the same time, public housing investment has decreased, leaving nearly half of all renters rent-burdened. Upending lives through evictions often leads to devastating consequences, including job loss, physical and mental health problems, disruptions in children’s education, and both short- and long-term homelessness.

There is a marked imbalance in representation, with most tenants having no counsel in eviction disputes. According to the National Coalition for a Civil Right to Counsel, absent special intervention, on average 83% of landlords have lawyers, whereas only 4% of tenants do.[4] Because of this, according to the ACLU, “Unrepresented tenants generally cannot make legal arguments, raise applicable defenses, respond to or raise objections, introduce evidence, preserve issues for appeal, or navigate the procedural obstacles of litigation.”[5]

Even before tenants enter the courtroom, they are disadvantaged by residential lease agreements that offer little to no protections. Once at the courtroom, “Courts encourage (or sometimes insist upon) pre-hearing hallway negotiations between tenants and landlord attorneys. Unrepresented tenants often agree to unfavorable settlement terms, which are then entered on the record without review.”[6] Such hallway negotiations serve as little more than Post-it notes stuck to a case file. They can disappear at any moment, and when they do, tenants have no recourse.

Another example of the Post-it Note Problem in practice is record-keeping by public housing agencies. Public housing agency audits show that they lose track of critical records (income checks, rent calculations, inspections), often relying on personal folders and staff memory, and such lapses can lead to dire consequences for tenants in the system.[7] In practice, this means that tenants’ housing status rests on an undocumented, inconsistent Post-it system.

We tend to think of inequality in terms of finances, education, and geography, but we often overlook injustices stemming from informality. In courts and housing offices, decisions are often made via undocumented notes, whispered promises, and informal hallway negotiations. If a tenant is well-connected or simply lucky, that system may function well at times. Most commonly, however, the system harms these individuals and their families. Informal systems leave no trail, preserve no appeals process, and provide no equity. When justice runs on Post-its, the most vulnerable are often rendered invisible.

One important step to improve this inequity is to replace Post-it notes with formal paper trails using the appropriate forms and documents. To do so, we must require written documentation of any discretionary actions (such as informal notes, approvals, or verbal agreements). This step would help avoid subsequent information loss. Mandatory training for court clerks, caseworkers, and public housing agency staff on the proper maintenance of case notes would also greatly improve the system. In addition, local and state governments should provide counsel for all tenants facing eviction, which some cities and states already do. As long as our systems run on Post-it notes, justice will continue to be as fragile as paper.

[1] Eviction Lab. “Who Is Evicted in America.” https://evictionlab.org/who-is-evicted-in-america/#:~:text=READ%20THE%20STUDY:,the%20Threat%20of%20Eviction%20Annually

[2] Ibid.

[3]  ACLU. “No Eviction Without Representation” https://assets.aclu.org/live/uploads/publications/no_eviction_without_representation_research_brief_0.pdf

[4] NCCRC. “Eviction representation statistics for landlords and tenants absent special intervention” https://civilrighttocounsel.org/uploaded_files/280/Landlord_and_tenant_eviction_rep_stats__NCCRC_.pdf

[5] ACLU. “No Eviction Without Representation” https://assets.aclu.org/live/uploads/publications/no_eviction_without_representation_research_brief_0.pdf

[6] Ibid.

[7] AMA. “Common HUD Audit Findings and How to Avoid Them” https://amaconsultinggroup.com/blog/common-hud-audit-findings-and-how-to-avoid-them/