INTRODUCTION
This article draws on fieldwork in Chicago’s building court. Property owners end up in this branch of Chicago’s housing court system when the city’s Building Department deems building code violations particularly serious. Buildings in building court commonly have structural problems, missing smoke and carbon monoxide detectors, porches that are not up to code, or construction done without a permit. In building court, building inspectors, attorneys, and judges decide which issues owners must fix and when cases can be dismissed. In contrast to other housing courts, building court is characterized by leniency toward low-income defendants. Most building court defendants are low-income property owners and small-time landlords who own two- and three-flat rental buildings and who lack financial resources to complete repairs. Leniency in the building court case entails not assessing fines and allowing defendants additional time to comply.
However, even when courtroom actors strive for leniency, the court system ensnares low-income defendants in the same kinds of detrimental legal relationships and financial entanglements that they face in other courts. Elucidating the paradox of why leniency does not protect low-income defendants in court helps to clarify how legal institutions reinforce inequality and raises questions about the adequacy of courts as an institution. I specify the mechanisms through which building court negatively affects defendants. Building on conceptual apparatus from sociolegal studies—Malcolm Feeley’s (Reference Feeley1979) and Issa Kohler-Hausmann’s (Reference Kohler-Hausmann2018) work in particular—I develop the concepts of the hassle of leniency and property markers. The hassle of leniency refers to the delays that courtroom actors’ attempts at leniency produce, which can result in cases that stretch out over years. Property markers are the documents and restrictions that cloud property titles and limit owners’ abilities to access wealth and equity from their property. These also stem from efforts to show leniency to defendants.
Negative ramifications from courtroom encounters reproduce precarity for low-income homeowners and small-time landlords and their tenants. To be sure, punitive and strict decisions in building court also lead to negative ramifications for property owners, but I focus on explaining that even leniency is rendered pernicious in the legal and financial context of building code enforcement. I demonstrate the effects of property markers on the owners and tenants of small rental buildings, which is the largest source of affordable rental housing in Chicago as well as the only property type declining in number (Institute for Housing Studies 2020). Overall, I argue that we can only understand the full extent of the effects of the legal system if we know that housing precarity persists even when legal settings are characterized by leniency. Doing so shows us that leniency in courtrooms, while perhaps preferable to harsh sentencing and treatment, is not enough. Building court will continue to reproduce housing precarity without additional legal, technical, and—most importantly—financial assistance for defendants. Although courts can be valuable arenas to connect people to services, I join other scholars in questioning whether courts as an institution are equipped to solve problems rooted in poverty and broken housing systems.
LITERATURE REVIEW
Courts and Housing Inequality
Studies demonstrate that various characteristics of housing courts result in the reproduction of inequality and precarity. Focusing on tenants in eviction courts, extant research illuminates at least seven mechanisms by which low-income defendants fare poorly in housing court (see Sabbeth Reference Sabbeth2022 for a recent overview). First, most tenants do not show up to their court cases, resulting in a default judgment (Mosier and Soble Reference Mosier and Soble1973; Hartman and Robinson Reference Hartman and Robinson2003; Larson Reference Larson2006; Garboden and Rosen Reference Garboden and Rosen2019; Sabbeth Reference Sabbeth2022). Drawing on a data set of default judgments in Minnesota, Larson (Reference Larson2006) shows that people in higher-rent units are more likely to defend their case, whereas people in areas of higher concentration of poverty are less likely to. Desmond and Gershenson (Reference Desmond and Gershenson2017) suggest that this could be because of the “normalization” of eviction in high-poverty neighborhoods and networks. Hoffman and Strezhnev (Reference Hoffman and Strezhnev2023) demonstrate that transportation challenges prompt defaults.
Second, most tenants do not have any or adequate legal representation (Mosier and Soble Reference Mosier and Soble1973; Monsma and Lempert Reference Monsma and Lempert1992; Engler Reference Engler1997; Hartman and Robinson Reference Hartman and Robinson2003; Gee Reference Gee2010; Seron et al. Reference Seron, Frankel, Van Ryzin and Kovath2001; Desmond Reference Desmond2016; Garboden and Rosen Reference Garboden and Rosen2019; Sabbeth Reference Sabbeth2022). A randomized experiment in New York City shows “low-income tenants with legal representation experience significantly more beneficial outcomes than their counterparts who do not have legal representation, independent of the merits of the case” (Seron et al. Reference Seron, Frankel, Van Ryzin and Kovath2001, 420). Third, and relatedly, landlords usually do have legal representation or are better prepared for court (Hartman and Robinson Reference Hartman and Robinson2003; Gee Reference Gee2010). Therefore, they can easily take advantage of their opponents’ (i.e., tenants’) lack of knowledge (Engler Reference Engler1997), especially because attorneys give them more legitimacy and procedural knowledge (Sandefur Reference Sandefur2015).
Interpretive disjuncture is a fourth mechanism (Nelson Reference Nelson2021). Tenants (again, usually without legal representation) neither possess legal expertise (Golio et al. Reference Golio, Daniels, Russell, Southall and Lamoza2022) nor know how to “properly” argue their cases. Even when tenants know that they can argue, evidence is usually not heard over professional and prepared landlords (Public Justice Center 2015; Steinberg Reference Steinberg2017). Nelson (Reference Nelson2021) calls this “interpretive disjuncture,” which he defines as “a disconnect between the way laypeople and experts interpret and treat everyday troubles as legal problems” (153). For instance, there are often cultural differences between courts and laypeople concerning what constitutes a “good excuse” for missing rent (Lempert and Monsma Reference Lempert and Monsma1994). Interpretive disjuncture can persist even when laws are directed at protecting tenants. Mosier and Soble (Reference Mosier and Soble1973) observe this in Detroit, after a law passed that gave tenants new arguments for protection in housing court. They find that barely any tenants knew to use these arguments.
Fifth, housing court deals with too many cases per day (Hartman and Robinson Reference Hartman and Robinson2003; Steinberg Reference Steinberg2018; Sudeall and Pasciuti Reference Sudeall and Pasciuti2021). Courts are understaffed and overbooked, and judges therefore hear cases very quickly and only focus on the narrow question “was the rent paid or not?” even if tenants have legitimate arguments (Hartman and Robinson Reference Hartman and Robinson2003; Gee Reference Gee2010; Garboden and Rosen Reference Garboden and Rosen2019). Sixth, judges have little power for leniency simply because the law strongly favors good outcomes for landlords (Glendon Reference Glendon1982). Finally, tenants in housing court are frequently persistently marginalized groups, which adds to their lack of power in the courtroom (Desmond Reference Desmond2012, Reference Desmond2016; JPNSI 2020; Robinson and Steil Reference Robinson and Steil2021).
Overall, these mechanisms overlap and compound defendants in housing court, producing a dire situation in which even tenants with meritorious habitability claims have only a tiny chance of receiving rent abatement and are no more likely to get rent delayed (Summers Reference Summers2020).Footnote 1 Time and again, studies show that judges and code enforcement officials do not listen to tenants’ claims about housing conditions, even when they have legitimate concerns and legally justified reasons for withholding rent (Cotton Reference Cotton2015; Sabbeth Reference Sabbeth2019). Most notably, this results in judges siding with landlords and evicting tenants, irrespective of housing conditions (Super Reference Super2011; Summers Reference Summers2020). Housing court literature thus adds empirical weight to the claim of legal scholars that laws reinforce inequality, irrespective of their origins (Scheingold Reference Scheingold2004; Bumiller Reference Bumiller1988) and even when they are directed at preventing discrimination (Berrey, Nielsen, and Nelson Reference Berrey, Nelson and Beth Nielsen2017; Reosti Reference Reosti2020). In the case of housing court, inequality is reinforced when tenants lose, and landlords win. While a wealth of research documents what happens to renters in and after housing courts, I foreground the implications of housing court for property owners. By virtue of historic and contemporary racism in housing markets, many low-income property owners in urban areas are also members of racially and ethnically marginalized populations.
Selective Enforcement and Disparate Impacts
Socio-legal scholars make two additional claims that are pertinent for the purposes of this article. First, laws and regulations are unevenly and selectively enforced (Sarat and Kearns Reference Sarat and Kearns1993; Ewick and Sibley Reference Ewick and Silbey1998; Valverde Reference Valverde2012). Selective enforcement occurs at the level of the street-level bureaucrat who must make site-specific discretionary decisions (Lipsky Reference Lipsky2010) and in the courtroom (Engen and Steen Reference Engen and Steen2000). Second, enforcement results in disparate effects. Some people are penalized disproportionately, as state and legal actors consistently excessively punish the poor, communities of color, and others in marginalized positions (Soss, Fording and Sanford Schram Reference Soss, Fording and Schram2011; Wacquant Reference Wacquant2009; Valverde Reference Valverde2012; Lynch et al. Reference Lynch, Omori, Roussell and Valasik2013). A large volume of literature shows this to be the case for rates of incarceration, arrests, police stops, and ticketing (Harcourt Reference Harcourt2001; Pattillo, Western, and Weiman Reference Pattillo, Western and Weiman2004; Bobo and Thompson Reference Bobo and Thompson2006; Beckett and Herbert Reference Beckett and Herbert2008; Lynch et al Reference Lynch, Omori, Roussell and Valasik2013; Epp, Maynard-Moody, and Haider-Markel Reference Epp, Maynard-Moody and Haider-Markel2014; Van Cleve Reference Cleve and Gonzalez2016). Uneven enforcement of laws and regulations results in marginalized groups disproportionately suffering the negative consequences of the legal system. Other scholarship points to the persistence of disparate effects, even if laws and regulations were to be enforced evenly. One reason for this is the fines and fees that courts exact, which take a higher toll on those with the fewest resources (Harris Reference Harris2016; Martin et al Reference Martin, Sykes, Shannon, Edwards and Harris2018; Friedman and Pattillo Reference Friedman and Pattillo2019). Even if fines and fees are assessed evenly, their effect is more severe on people with less money.
Additional Burdens
Interactions with the legal system have ramifications beyond incarceration, arrests, and financial burdens, however. Courts also take up people’s time and demand performances. Kohler-Hausmann (Reference Kohler-Hausmann2018) demonstrates the “procedural hassle” rife in misdemeanor courts, which entails delaying, engaging, and compelling the defendant to conform to the institutional and organizational demands of the court and court actors. Such hassle and performance also require resources, such as time to spend in court and prepare for court, as well as access to legal expertise. Overall, the rule of law and legal framework benefits the haves rather than the have-nots (Galanter Reference Galanter1974; Stryker Reference Stryker2007; Clair Reference Clair2020).
Building on the work of Pager (Reference Pager2007, Reference Pager2008), scholars have also demonstrated the punitive effect of a criminal record on people’s prospects for jobs (Uggen et al. Reference Uggen, Mike Vuolo, Ruhland and Whitman2014) and housing (Walter, Viglione, and Tillyer Reference Walter, Viglione and Skubak Tillyer2017; Reosti Reference Reosti2020). Others have demonstrated that landlords turn down tenants with eviction records, adding to not only their housing instability (Desmond and Shollenberger Reference Desmond and Shollenberger2015; Gold Reference Gold2016) but also their additional economic precarity and social disadvantage due to the financial burden of repeated application fees and the psychological strains associated with housing insecurity (Reosti Reference Reosti2021). Criminal records and eviction records are examples of negative credentials (Pager Reference Pager2007).
Property can have negative credentials too. I use the term property markers to mean any negative credential that can be associated with a property as a mark on its record. Property markers vary by state or municipal authority and in terms of what is publicly and/or easily available data. I focus on unresolved building violations in this article, but property markers also include records of unpaid property taxes; foreclosures; or bank sales, liens, and other claims that cloud property titles. They also include registration as vacant property, scofflaw listing, and building violations. Property markers, like criminal records, designate engagement with the legal system and work as a technique of evaluation and classification (Kohler-Hausmann Reference Kohler-Hausmann2018). While criminal records can prevent people from renting or working (Dewar, Seymour, and Druță Reference Dewar and Seymour2015), property markers can make properties hard to sell. They can also prevent owners from making timely mortgage payments or paying their property taxes, which frequently results in foreclosure.
In this article, I apply Kohler-Hausmann’s concepts to building court cases that result from building code violations. This different setting shows us that these mechanisms are more pernicious than we have assumed. In other accounts, negative credentials and procedural hassle are characteristics of punitive legal decisions and behaviors. Building court shows that these outcomes even extend to settings where leniency is the modus operandi.
RESEARCH SITE AND METHODS
Chicago’s Building Court
Building court is a branch of housing court. For a property to go to Chicago’s building court for building violations, it first must be inspected by a city building inspector. Most often, inspections are prompted by calls from tenants or concerned neighbors (see Bartram Reference Bartram2022). When an inspector finds violations, she has three main options: to send the owner a notice, to send the building to a hearing office, or to send the building to court. Building court is the only option that allows for additional discretion and decisions between leniency and punishment. Properties end up in building court if they have serious safety issues. There are guidelines for the kinds of violations that result in a court case—for example, dangerous porches, illegal conversions, structural issues with exterior walls, or missing smoke or carbon monoxide detectors. To be sure, properties nearly always have additional violations that inspectors deem less serious as well, such as flaking paint, rodents, or leaky ceilings. Building court cases regularly last for years, with property owners making an appearance in court intermittently. Each of these hearings is scheduled in the same courtroom, which means defendants deal with the same judge, court inspector, and city attorney every time. As a rule of thumb, judges do not fine property owners if they are making progress toward compliance.
The most common practice in building court is for building inspectors, city attorneys, defense attorneys, and property owners to discuss the case at hand. Sometimes defense attorneys negotiate, but, most frequently, inspectors and city attorneys make a decision and instruct the property owner on what work needs doing. Judges come to the bench to sign off on these decisions and only intervene when there is contestation. For example, let’s say an owner of a property with a partially collapsed wall and flaking exterior paint is in court. During her first appearance, an inspector will likely tell her she needs to prioritize fixing the collapsed wall and set her a follow-up court date a few months later. At her next court date, let’s say the owner has started fixing the wall but has run out of money. The inspector and attorney, backed by the judge, are likely to tell her she can have more time to fix the wall (and give her ample time to do so before her next court date) but she does not need to do anything about the flaking paint. The property owner has finished the wall by her next court date, and—on the advice of the court—not fixed the flaking paint. The inspector recommends the case be dismissed, the judge concurs and does not levy fines or fees.
Critically, and in contrast to research on most other housing court settings, building court is characterized by leniency. Although a direct empirical comparison does not exist, I suspect the difference can be explained by overlapping factors including the presence of building inspectors, the social location of the defendants, moral narratives about the presumed origin of the issue bringing everyone to the courtroom, and the purpose of the court. The presence of inspectors is important because, as existing research shows, they show leniency for small-time landlords and low-income homeowners throughout their work (see Bartram Reference Bartram2019a, 2022). As they have the power to make recommendations to judges, their leniency can extend to and influence the courtroom setting. Defendants in building court also occupy different social locations from tenants in many other housing court settings (for example, eviction court) because they are property owners. Literature attests to both the persistent and pervasive vilification of tenants (see Čapek and Gilderbloom Reference Čapek and Ingram Gilderbloom1992; Goetz and Sidney Reference Goetz and Sidney1994; Krueckeberg Reference Krueckeberg1999; McCabe Reference McCabe2016) and the valorization of homeownership (see Shlay Reference Shlay1986; Garb Reference Garb2005; McCabe Reference McCabe2016). Thus, the cultural baggage of these disparate social locations may explain why building court (where the defendants are property owners) and housing court (when the defendants are tenants) are characterized by very different operating logics and why the modus operandi in building court is leniency. An additional, overlapping reason may be moral narratives about the origins of the cause of the legal problem. When a building is in disrepair, the cause can be attributed to age and force majeure.Footnote 2 The dominant narrative explanation for a tenant’s rent arrears, on the other hand, is much less sympathetic and often comes down to ideas about tenants (who do not occupy the prized status of homeowners) being lazy or irresponsible (Garboden and Rosen Reference Garboden and Rosen2019; Summers Reference Summers2020). Thus, leniency is deemed warranted in the former rather than the latter.
Additionally, the purpose of building court differs from other housing court settings. Eviction court’s stated goal, for example, is to adjudicate a lease (although its actual goal may be to assist in rent collection). Building court is primarily officially directed at enforcing the building code and ensuring public health and safety, but it is also a mechanism for the City to avoid liability in the case of dangerous buildings. These factors likely shape judicial discretion. Moreover, the absence of funds to assist court-ordered repairs chips away at the efficacy and appositeness of a judge ordering repairs. As a result, ensuring owners are making “progress” on repairs or gathering funds is the actual day-to-day goal of building court. In this way, Chicago’s building court shares some characteristics with the experimental problem-solving housing court that Steinberg (Reference Steinberg2018) explores, which targets property owners and thus avoids some of the critiques of other litigation for overly burdening marginalized tenant populations. Yet, unlike building court, the problem-solving court explicitly names the court’s purpose as solving an identifiable social problem and successfully remedies housing code violations. Without available resources, building court cannot remedy issues and the courtroom seems like the wrong place to solve problems caused by a lack of resources on the part of low-income property owners.
Data and Methods
Chicago’s building court groups building violation cases into eleven “court calls,” ranging from specific calls focused only on heat complaints or exterior walls to more general calls. Each courtroom has a different judge, city attorneys, and a building inspector. Inspectors give testimony in these hearings as expert witnesses. I observed at least five cases in each of court’s eleven calls, though focused my attention on the broad call for “occupied buildings with general code violations,” which is divided into three courtrooms by geographic location within the city (north, west, and south). I spent my time between these courtrooms and observed over 100 hearings.
Of the hearings I observed, the overwhelming majority involved small rental buildings (that is, between two and six units). I suspect this is because Illinois legislates that LLC-owned properties must be represented by a lawyer, and this sets them up with better chances of getting cases dismissed on their terms (Seron et al. Reference Seron, Frankel, Van Ryzin and Kovath2001) and without numerous hearings in housing court. Thus, I was more likely to observe smaller rental buildings owned by nonprofessional landlords in court because they are more likely to be in court multiple times (because their owners are less likely to have attorneys and are less likely to be able to access funds to make repairs quickly).
Importantly, attorneys, judges, and court inspectors know who owns buildings in court as well as some information about their owners’ financial resources because city attorneys gather this information before hearings. Thus, legal actors not only know that buildings in their courtroom are small rental buildings, for example, but also whether they are owned by a professional landlord with multiple properties or an owner-occupier who owns only one building. The vast majority of buildings in building court during my fieldwork were small rental buildings owned by small-time landlords with limited resources.
I also noted down the property address in each case, which enabled me to search for properties on the County Assessor’s website and determine each building’s size and neighborhood location. There was frequently much discussion about the financial status of property owners, enabled by the city attorneys that collect information about the financial resources and property records of defendant. Attorneys, judges, and inspectors use this information to weigh up their decisions about how much time to give—and leniency to show—to defendants. Actors in housing court are more likely to show leniency to property owners in lower-income and historically disinvested neighborhoods of color in the city, in large part because property owners in these areas are less likely to have the resources to maintain their buildings. This operating stance aligns with other decisions made by code enforcement officials (Bartram Reference Bartram2022).
I also interviewed eight building inspectors (each of whom had experience or was currently a court inspector) and two building court judges. Of my interviewees, one judge and one inspector were Latinx men in their fifties. The other interviewees were White males between forty and sixty-five. The demographics of my interview sample are representative of inspectors in Chicago and across municipalities in the United States (International Code Council 2014). I recruited inspectors through an internship at the Department of Buildings. I approached building court judges after spending time in their courtrooms. I audio-recorded interviews, which lasted between forty-five minutes and two hours. I transcribed and coded the interviews myself. I took field notes during the hearings I observed and coded my field notes inductively. As I did so, I noticed patterns in how my interviewees spoke about leniency in building court.
LENIENCY IN COURT
Legal and municipal actors show leniency to low-income defendants in court. But they have less discretion in deciding who ends up in court in the first place. In fact, inspectors are compelled to send buildings with certain code violations to court (see Bartram Reference Bartram2022). “Anytime it’s dangerous or hazardous … is a court case,” a court inspector told me. I had asked him what kinds of issues typically prompt an inspector to recommend a property for building court. He elaborated: “anything falling down, gonna fall down, gonna hurt somebody, or is immediately detrimental to the person living there, you know, unsanitary, you know, something bad, it goes to court, that’s automatic.” Another inspector said something similar:
If there’s something dangerous and hazardous, then that typically goes to court right away … bad porches, you know, bricks falling off the building, terrible living conditions, overcrowding. I’ve come into some illegal rooms and built-in basements where there’d be like two families living in something like the size of this cubicle.
He gestured to the small office room we were sitting in. A court inspector of almost twenty years expanded to explain the rule of thumb for violations that always result in a court case: “there are four or five things: walls, smokes and carbons, conversions, and porches.” Violations related to walls are often a result of structural issues in a building. Smokes and carbons refer to incidents when landlords do not provide smoke and carbon monoxide detectors in rental units. Conversions mean parts of buildings that have been converted into living areas, or even separate apartments, without plans or permits. Finally, the City is very strict when it comes to any porch that is not code compliant in response to a porch collapse in 2003 that killed thirteen people and seriously injured fifty-seven others. Inspectors spoke with consistency about the severity of conditions and the types of issues that result in a court case.
But, once properties are in court, inspectors and judges have a great deal of leeway in enforcement and dismissing a case, as an inspector explained:
Enforcement … depends on the ability of the homeowner to take care of these violations. We’re not out to hurt the owners, [we] want everybody just comply and address the safety issue, so if you get like twenty violations and you address most of them and you address the safety issues then [we’ll] give you [partial] compliance and [we’ll] give you a little more time to do the rest.
Pretty much [the] number one issue is smoke detectors and carbons, that’s what we look for all the time, you know, because that’s what costs us life or injury, severe injury … so once they address that then, you know, they give them time to do other stuff.
During this interview, the inspector hinted at the options building court judges have when properties have violations. The inspector stressed that courtroom actors insist some issues, such as missing smoke and carbon monoxide detectors, get resolved before allowing property owners more time to make other repairs. A judge can also grant a property owner additional time to make repairs, or judges can dismiss a case with “partial compliance,” which means not all violations have been addressed. In short, courtroom actors can, and do, prioritize issues.
Decisions that courtroom actors make are based on their assessments of the defendants. “As a court inspector,” a veteran court inspector told me, “I see the owner, I see the situation, I get to understand how they got to this place, now you can make a better assessment of how we can try and help them get out of this bad place.” Seeing “the situation” and making a “better assessment” is tied to a property owner’s financial status. City attorneys collect property records and other financial information about defendants, which court inspectors use to “try and help” property owners “get out of this bad place.” An inspector explained this to me one day during an interview:
Financing makes a difference. Because if it’s in a poor neighborhood or if it’s a poor client—building owner—or if there’s a building owner that has the means…in that situation I can say “ok well, take care of it now.” But if it’s someone that don’t have the money, then I can say “that’s not urgent.” If we’re looking at priority, “take care of this first, take care of this when you get the chance to” you know. And that’s the reason why we’re the court inspectors. We can catch that.
This inspector and his courtroom colleagues are more likely to prioritize issues and work with property owners with fewer resources. In practice, this means that property owners who live in single-family properties or small rental buildings, often in communities of color on Chicago’s South and West Sides. This surprising finding—that legal actors in building court are more likely to show leniency for residents in communities of color—aligns with other work on building code enforcement officials, which stresses that professional evaluations of buildings differ from those of people (see Bartram Reference Bartram2021, Reference Bartram2022).
I saw courtroom actors making lenient decisions time and time again. One morning, I watched as a court inspector, attorney, and property owner of a three-unit apartment building discussed the twenty-four violations on record from the building—ranging from a dangerous porch to trash accumulation in the corridors. The building was in a majority Latinx and low-income neighborhood. “Just fix up one apartment,” the inspector requested “make sure there are smokes and carbon detectors, and fix the porch, then I’ll “probably let it go.” The inspector suggested the case would be dismissed if the owner took care of some of the issues. Importantly, however, the property owner would not need to resolve all the violations listed on record for the building. But they would need to return to the courtroom for more hearings until some of the work was complete.
HASSLE OF LENIENCY
Despite the leniency of courtroom actors, the experiences of defendants in building court are similar to those in legal settings where leniency is not the norm. In this section, I build on Kohler-Hausmann’s (Reference Kohler-Hausmann2018) concept of “procedural hassle,” which entails delaying, engaging, and compelling defendants to conform to the demands of the court. Simply showing up for court may mean lost wages from missed work, the cost of childcare, attorney’s fees, and wasted time. I demonstrate that defendants in building court experience an analogous difficulty: the hassle of leniency.
Judges and inspectors in building court show leniency by allowing property owners additional time to fix issues. “We understand. We’ll work with you. And give you a nice long amount of time,” an inspector said to the owner of a small single-family property in a low-income neighborhood, home to mostly Black and Latinx homeowners and renters in small buildings. The owner appeared to be Black and roughly in her sixties. She had just finished explaining that she was receiving counseling for hoarding and her husband was dealing with mental illness. “You just need a cleanup,” the inspector stated, reviewing his notes, “nothing imminently dangerous, just fix up the walls and ceiling.” Sure enough, the judge ruled that the owner could have another nine months to get this work done. Such an expression of sympathy does not resemble how we commonly think of legal settings. Yet I saw frequent instances of courtroom actors giving property owners similar lengths of time and amounts of compassion.
One morning I was in court to hear an inspector’s conversation with a woman who appeared to be White and in her twenties. Like many others in building court, the woman’s family property had a porch that needed repairs. She hushed her baby in its stroller between relaying her story to the court inspector. Her father had died a few years ago and her mother was housebound. The property was a three-flat building in a racially and ethnically diverse neighborhood, which had pockets of poverty alongside blocks of middle-income residents. Old three-flat buildings were gradually being replaced by small condominium buildings.
This was the woman’s second court date, and she had promised to have made progress on the porch by now. She showed the inspector photos on her phone of some work she had completed, including removing some debris and fixing some door glass. But nothing had been done to the porch. The inspector looked at her. “Your family has owned the building for a long time, right?” he asked, and watched as the woman nodded. He agreed to allow her more time and the judge set her another court date four months later. “That’s a long time” he said to her “so you should be done by then.” The inspector and judge were showing leniency by allowing the owner additional time. The contrast between this moment in building court and accounts of eviction court is stark. It seems highly unlikely, from existing accounts, that eviction court judges would either delay the proceeding or provide additional time to gather rent money if a tenant’s father had died, causing a loss of income and inability to pay rent.
Courtroom actors allow extra time even when they are uncertain property owners will ever make repairs. The owner of a two-flat rental building in a historically working-class Latinx neighborhood comprised of mostly midcentury bungalow buildings explained to the inspector that she felt unable to begin working on the court-mandated porch repairs and leaking roof because her tenants were moving out as a result of these conditions and she was about to lose rent. The court allowed her an additional six months to begin work. “I don’t think it’ll ever get done,” I heard the court inspector mutter as the property owner left the room. A building court inspector explained to me that this was not one-time occurrence:
Some of these people they might not have the money so they might sit in the courtroom for five years, you know. And, you know, the judge is not going to—judges are pretty tolerant, I had a judge, he wouldn’t throw the book at anybody; he … wouldn’t make them do it.
Extra time—to make repairs, to come up with funds to make repairs, or to find an affordable architect or contractor—is likely a welcome relief to many property owners. Less time to complete these tasks could mean rushed repair jobs or being forced to use less affordable or reliable contractors and architects. Similarly, delay is sometimes the only course of reprieve from the state for poor people if the request comes from the defendant (see Sabbeth Reference Sabbeth2018). Yet, the extra time the court affords to struggling homeowners—as a means of leniency—is not always beneficial in the case of building court. The longer a property owner has an open court case, the more procedural hassle they must endure.
Procedural hassle involves compelling defendants to conform to courtroom demands, such as showing up for court. But this frequently entails lost wages from missing work, additional costs for childcare, potentially paying attorney’s fees, not to mention wasting time. All of these “hassles” occur on top of the costs to owners for making repairs necessary to eventually get their cases dismissed. Hassle is particularly significant in building court because, as judges and inspectors attested, cases regularly go on for years with intermittent court dates usually every three or six months. The longest I observed had been ongoing for nearly eight years. Consequently, the hassle of leniency permeates years of defendants’ lives.
Kohler-Hausmann (Reference Kohler-Hausmann2018) demonstrates the disparate and detrimental effects of procedural hassle on defendants with scarce resources. In building court, property owners with scarce resources are also most likely to experience procedural hassle, but this happens in spite of the leniency they are shown by inspectors and judges, who are prone to showing leniency to property owners they believe are struggling financially. What’s more, defendants with scarce resources are most likely to need more time to gather funds to make repairs; therefore, the odds are even higher of them undergoing more procedural hassle than their wealthier counterparts.
PROPERTY MARKERS
Leniency on the part of courtroom actors means that property owners can leave building court with unresolved violations. And unresolved violations linger on property records for the buildings in question. One morning, a judge dismissed a case, opting not to make the owners—who appeared to be White and roughly in their fifties—pay fines or fees. Property records show that they are the longtime owners of this three-flat rental in a mixed-income neighborhood, known for its concentration of Vietnamese residents and restaurants. The three-flat sat among taller residential buildings and other small rental properties. Then judge’s decision came shortly after an inspector had told the couple, “the only thing left is you need to clean up around the porch. I won’t make you get a permit.”
I noticed the phrase “I won’t make you get a permit,” as something of a mantra in building court. A few weeks later, in another courtroom, I heard the inspector say something similar to the new owner of another two-flat rental. The building was one of a handful of small residential buildings that shared a block with some commercial properties in a low-income and historically Latinx neighborhood. “We’re dismissing this today,” he told them, “but you still can’t use the attic as an apartment because you don’t have a permit.” This inspector added something else: “That will still be on your title.” By this, he meant that the violation—for insufficient permits and illegal use—would remain on record for the building as something I call a property marker. I use the term property marker to denote a negative credential on record for a property, which is evidence of an engagement with the legal system (Feeley Reference Feeley1979; Kohler-Hausmann Reference Kohler-Hausmann2018). Building on previous research, I show that properties—and not just people—can be negatively credentialed.
As with most other large US cities, Chicago’s records of building violations are visible online through the Open Data Portal.Footnote 3 Property owners, tenants, developers, buyers, sellers, city officials, and the media can easily see the violation history of a building and whether violations have been marked as resolved. While other digital records, such as eviction records or criminal records, tend to stem from punitive logics of surveillance, posting building violations online stems from a progressive mandate of transparency and accountability (see City of Chicago 2012).Footnote 4 An inspector of fourteen years explained one of the implications of the publicly available data:
They made available online all building violations, so somebody can just go online and they can verify the address of the building and see the building violations on it. And what that’s done is that a lot of building owners, when they go to refinance, the banks look and they see them now. They don’t have to go through a lawyer in order to get a copy of it. It’s right there online.
So then those got to be corrected before they’ll even get the loan. And some of them may be real minor stuff, but it shows up as an open violation. But it could just be that there was a broken window at one point…. Just another thing to go through on your loan!
The inspector laid out the ways that online evidence of property markers—even minor building violations—can negatively affect property owners. Property markers do have concrete financial implications for their owners. A study of building violations and property prices in Chicago over time demonstrates that buildings with unresolved violations on their record, for example, systematically sell for less than comparable buildings in the same area (see Bartram Reference Bartram2019b). The more unresolved violations on record, the lower the sales price. Thus, when building court actors dismiss cases with unresolved issues—which they tend to do as an act of leniency toward some property owners—these unresolved issues mark their properties and lead to lower sales prices. Furthermore, the effect is greater in magnitude for less-expensive properties (Bartram Reference Bartram2019b), suggesting that low-income property owners suffer the ramifications of property markers—which occur in an environment of courtroom leniency—the most.
Property markers do not only lower property value. They also jeopardize property owners’ opportunities to afford to remove them. The government will not provide loans for properties with serious code violations (U.S. Department of Housing and Urban Development 2018). Not fixing recorded violations thus risks furthering poor people’s need for—yet unlikelihood to receive—loans and refinancing, preventing them from benefitting from property ownership. In this way, building court leniency toward low-income homeowners threatens to entrench their entanglements with debt and property. To be sure, requiring the violations be fixed by a property owner with no access to resources is not realistic, so the alternative to leniency without assuring resources would not assuage the negative financial ramifications either.
An additional consequence is that, as the inspector suggests above, property markers are public knowledge, which means that developers can profit from the relatively low sales prices of buildings with property markers. As other research shows, dilapidated property can be a moral and reputational force that outside investors deploy for financial gain by using them as focal point to justify new investment (Parker Reference Parker2018). At financially opportune times, property acquisition companies and investment firms buy up high volumes of dilapidated buildings, including single-family homes, convert them into rentals, and turn them into real estate assets for private equity and other financial firms (Immergluck and Law Reference Immergluck and Law2014; Fields and Uffer Reference Fields and Uffer2016). In short, dilapidation is often an incentive for speculation and displacement (Smith Reference Smith1987) and online evidence of property markers alert speculators to potential prime locations.
Property markers can also prevent owners from making timely mortgage payments or paying their property taxes, which frequently results in foreclosure. Urban scholars have paid considerable attention to foreclosures—and their racially disparate geography—since the finance-driven housing bubble and 2008 crisis (see Immergluck Reference Immergluck2011). While foreclosures nearly always result in displacement (Hall, Crowder, and Spring Reference Hall, Crowder and Spring2015), until recently we knew much less about other negative credentials of property. As part of a renewed attention to the socio-legal dimensions of property (for example, Atuahene Reference Atuahene2014; Becher Reference Becher2014), recent studies have highlighted the similar implications of property tax delinquency and property deeds and liens—legal claims against property that city governments auction off to the highest bidding investor (see Kahrl Reference Kahrl2015; Henricks and Seamster Reference Henricks and Seamster2017). These instruments are a source of income for cash-strapped municipalities (Kahrl Reference Kahrl2015). But for property owners, they are negative credentials.
The ramifications of property markers are also racialized. Governments continue to overassess at the same time as the real estate industry undervalues properties in communities of color (Massey and Denton Reference Massey and Denton1993; Kahrl Reference Kahrl2016; Howell and Korver-Glen Reference Howell and Korver-Glenn2018). Black and Latinx homeowners not only have lower home values; they are also more cost-burdened by their homes and are much more likely to live in substandard housing (Institute for Research on Race & Public Policy 2016) and therefore more likely to end up in building court. These facts compound to place property owners of color in the eye of the storm when it comes to the negative effects of building court.
While criminal records can prevent people from renting or working (Dewar, Seymour, and Druță Reference Dewar and Seymour2015), property markers prevent owners from accessing equity that homeownership promises. Unlike criminal records, however, property markers occur in settings characterized by leniency. The fact that building court rarely results in fines or fees does not mean that property owners come away unscathed. Property owners suffer despite the leniency the court shows to them.
Savvy and experienced property owners are aware of the implications of property markers and try to avoid them. “No, no, we want to comply with all the violations,” remarked the owner of a two-flat rental in a neighborhood with a growing White and declining Latinx population that had seen a lot of development and upscaling in recent years. The court inspector and city attorney looked baffled. They were used to property owners fighting tooth and nail not to have to fix the building violations that brought them into building court. And, as I have demonstrated, building violations cases are commonly dismissed with substantial compliance, meaning minor violations are forgiven once severe issues are addressed. Yet this property owner—who was planning on selling the two-flat building he had rehabbed without obtaining the necessary permits—knew that any violations he did not address would remain on his building’s record. “I’m going to flip it!” he said with enthusiasm, “and you can’t usually get a mortgage with violations [on record] and [prospective buyers] don’t want to see anything on their title.” He knew about the ramifications of property markers and made strides to avoid them. In doing so, this property owner—who was already in the business of making money from property—further entrenched his position in the housing market relative to property owners with few resources.
Almost all the examples of courtroom leniency I observed involve small rental buildings—long a source of affordable housing and currently the only housing type in Chicago that is declining in numbers (Institute for Housing Studies 2020). In tight markets, building owners and developers flip these buildings, gutting the interiors to build desirable condos. In poorer areas where there is more affordable housing, these buildings are disproportionately left to deteriorate and eventually end up demolished (Institute for Housing Studies 2020). Thus, property markers not only harm the owners of small rental buildings, they also diminish the stock of affordable housing. A decrease of affordable rental options is most likely to affect the most marginalized tenants, who already deal with eviction records, criminal records, and racial discrimination (Desmond et al. Reference Davidson2013; Desmond and Shollenberger Reference Desmond and Shollenberger2015; Gold Reference Gold2016; Reosti Reference Reosti2021).
IS LENIENCY THE PROBLEM?
Although leniency is the norm in Chicago’s building court, sometimes courtroom actors make decisions that are directed at stringency. A comparison between how defendants fare after stringent decisions and what they face after leniency highlights that leniency is not the only problem. Rather, the issue lies in the broader legal and bureaucratic framework in which lenient (or stringent) decisions are made. I observed judges giving owners much less time to fix issues (on the recommendation of inspectors and city attorneys) in cases where property owners’ lack of progress was not purely attributable to a lack of resources—for example, when defendants were being deceitful or had failed to turn up for their court hearings. I watched a building court judge anger as an inspector revealed the owner of a small rental building in a high-poverty neighborhood had lied about fixing a boiler. The owner had previously claimed he had restored heating in his building, but a follow-up inspection revealed there was only heat in one of the units. One of the building’s tenants, a young male I assumed to be Black, nodded in agreement as the judge spoke to the owner—an elderly man who appeared White: “It’s disingenuous to claim you have done [the work] and ridiculous to say that you did not know you should fix both.” The judge ordered the owner to return to court in seven days with proof he had restored heating to the unit. Seven days stands in stark contrast to the months that judges frequently grant defendants to make progress. Yet both lenient and nonlenient rulings carry negative ramifications for defendants.
A lack of progress also prompted another court inspector to make a harsher decision than is the norm in building court. The owner of a two-unit frame house in a mixed-income and majority White neighborhood had failed to show up in court, and the inspector and attorney were filling out paperwork on a coffee-stained table in front of them. The property was in court because the porch was—according to the inspector’s notes—in “poor condition.” “Would you consider the porch dangerous?” the attorney asked. “No,” the inspector replied as he glanced at his own paperwork, seemingly to refresh his memory. The attorney’s pen had not touched the paper before the inspector changed his response. “Put ‘yes,’” he said. “Put the porch down as dangerous. [The owner] is not making progress, so let’s say dangerous to make it a shorter date.” Giving the owner a shorter date meant he had less time to make progress on the porch.
Inspectors have the power of postponement to help poorer building owners, but they can retract that help when defendants are no longer playing by their rules. “It leans so much it almost falls over!” a court inspector told the judge about a three-story building in an affluent White neighborhood. The property had been in court for years because of severe structural issues, and the owners had failed to turn up for their most recent two court dates. They were here today but had no progress to show. “You have run out of time,” the inspector curtly told the owner, a casually dressed man with gray hair who appeared to be Latinx. “You can plead your case with demo court,” he added as the owner opened his mouth to reply. Recommending the building for demolition comes with costs. Property owners are liable for the costs of demolition, which can run up to $20,000. Very often, an inspector told me, owners cannot afford the expense, “so what’ll happen is we pay the contractor up front [to demolish the building] and lien the property.” The building court inspector’s decision—his lack of leniency—would also end up costing the property owners. As these cases suggest, negative ramifications ensue without leniency.
Another kind of leniency is overlooking issues and not enforcing the building code. But this has negative consequences too. Not maintaining buildings can lead to dangerous conditions. Left unaddressed, a host of issues—from leaks, cracked bricks, to rot—worsen over time. As conditions worsen, resolving issues becomes a bigger and a more expensive job. Neglected properties also are demolished. An inspector explained, “we get demolition orders on buildings that aren’t that bad, but we just don’t have any other choice because nobody steps up to the plate. And as the court case progresses, the building just deteriorates.” What’s more, a minor issue overlooked might become a major issue in the years that follow. For example, even small holes and cracks in exterior walls can lead to severe structural damage if they are not repaired because water easily gets into holes and forces bricks and mortar to crumble and pull apart. Thus, overlooking even minor issues can become big problems for property owners in the long run and can mean that low-income renters are stuck with unsafe or unpleasant living conditions, which are associated with displacement and debt (Bartram Reference Bartram2023) and are major social determinants of health. Lead, mold, damp, pests, and energy insecurity are linked to asthma and other respiratory conditions, for example, and poor lighting, structural issues, and a lack of smoke alarms, carbon monoxide detectors, and other fire safety precautions can lead to injuries and fatalities (Grineski and Hernández Reference Grineski and Angelica Hernández2010; Swope and Hernández Reference Swope and Hernández2019).
In sum, leniency does not prevent defendants from some costly outcomes, nor does it cause them. Without funds to fix issues, any possible outcome (full enforcement, delayed enforcement, or nonenforcement) causes problems for low-income property owners in building court. To be sure, my data do not capture the counterfactual to leniency in all cases, and we thus cannot see whether alternatives would be preferable. Yet, my findings (related to leniency and considering the handful of stringent rulings I observed) lead to questions about the extent to which housing conditions—or indeed any other social problem—should belong in courts at all. Recognizing calls to abolish courts (see Clair and Woog Reference Clair and Woog2022), the following section weighs up the extent to which building courts might achieve their goals with the influx of additional resources.
DICUSSION: IF NOT LENIENCY, THEN WHAT?
As this article has shown, courtroom outcomes can be harmful even when courtroom actors attempt leniency toward defendants who are unable to pay. But if leniency is not enough to help marginalized defendants, what is? The findings of this article show that helping property owners avoid property markers and the hassle of leniency requires solutions beyond the courtroom and legal profession. In part, this is because, as Feeley (Reference Feeley1979) argues, courts are not predictable settings in which we can assume courtroom actors share ideas of justice. Thus, safeguards to protect defendants from outsized effects of both punitive and lenient rulings are necessary.
The critical solution is providing property owners with funds to do necessary repairs. If the state paid to fix all building code violations for owners who lacked the means to pay, then it is plausible (if not likely) that all the burdens described in this article go away. Studies show that, after less than two years of ownership, disrepair makes homeownership unsustainable for many low-income homeowners (Acquaye Reference Acquaye2011; Van Zandt and Rohe Reference Van Zandt and Rohe2011). Additional research points to the racist historical and contemporary state-regulated and -sponsored practices that have caused this situation by both denying and extracting wealth in communities of color (Bartram Reference Bartram2023; Taylor Reference Taylor2019; Zaimi Reference Zaimi2021). And Garboden and Newman’s (Reference Garboden and Newman2012) study of small low-end rental housing across the United States finds that preserving small rental buildings as affordable for low-income renters is only feasible with government subsidies, in part because of the cost of building maintenance. The Whole Home Repairs Program in Pennsylvania is a model that other states could follow. In 2023, the state will begin offering eligible low-income property owners (including small-time landlords) grants of up to $50,000 for necessary repairs and weatherization. A program like this could be linked to building court, whereby a case brought against a small-time landlord or low-income property owner automatically triggered funds to cover the costs of repairs. Indeed, a robust home repair program could remove the need for this arm of housing court entirely, thus also achieving the goal of the court abolition movement.
In the meantime, considering that laws and regulations need to take explicit aim at redistribution to reduce social and economic inequality (Galanter Reference Galanter1974; Stryker Reference Stryker2007), technical or financial assistance for owners of rental buildings must also consider their tenants. This requires addressing the tension that code enforcement is directed at property owners but often affects tenants as well as the power imbalance between landlords and tenants. In my fieldwork, I heard landlords expressing concern about the expense of code violations, for example, but I did not hear them mention any concern over their ability to rent out units. This is suggestive of the power that landlords wield over tenants.
Code enforcement might have the potential to positively affect tenants by improving conditions, but it also has the potential to prompt increases in their rents if landlords make repairs (see Bartram Reference Bartram2019b). If landlords are reluctant to make repairs, tenants have the legal right (in almost all states) to exercise the warranty of habitability. In some states, tenants also have the right to withhold rent if their landlord fails to repair issues of which they are aware. But both legal protections regularly fail to protect tenants, in large part due to judges’ favorable disposition to landlords in eviction courts. Judges side with landlords if their tenants are not paying rent, irrespective of housing conditions (Super Reference Super2011; Summers Reference Summers2020). This means that tenants may be punished for exercising their right to withhold rent in buildings with issues.
Some building violations require the technical expertise and professional stamp of an architect. With this in mind, two Chicago architects recently outlined their vision for a public architect. Based on the premise that citizens have the right to a public defender if they cannot afford a lawyer, the pair envision free architectural guidance for property owners who need to fix violations that require the stamp of an architect but cannot afford the professional fees architects charge (Lui Reference Lui2020). Pro bono architects could be positioned in courtrooms or assigned to property owners before their initial court hearing to try to avoid multiple hearings, which, as it stands, are often the only opportunity for owners to find out what the court expects of them. Architecture firms could provide necessary equipment and incentivize employees doing this work, which would remove the potential burden on cash-strapped courts and municipalities. Removing this information-gathering aspect from the courtroom may also streamline the process and save time and city resources. However, it would be imperative that public architects were aligned with court inspectors, judges, and city attorneys to ensure property owners receive appropriate advice. Currently, the name of the game in building court is too often dismissal without ensuring issues get resolved. Schemes like these—directed at ensuring access to legal assistance and technical expertise—could also help to shift the focus of building court.
Although we need housing regulations and building codes to ensure safe and decent building standards, without rent control in place, landlords are unchecked in their ability to raise rents and pass the burden of ensuring safe housing—in the form of building codes—onto their tenants. Currently instituted rent control policies in places like New York City have their critics partly because rent stabilization is tied to apartment units rather than people (Keating Reference Keating1987; Davidson Reference Davidson2013). But a different manifestation of rent regulation could remove the opportunity for landlords to hike rents to cover repairs.Footnote 5 Perhaps tenant unions, along with government committees or community groups, could decide which issues landlords should fix and what repairs—if any—they might consent to pay more rent to cover. Models already exist, and there is a long history of tenant unions. Of course, tenants may not have the expertise to make decisions about some building codes such as regulations about fire ratings, construction materials, and the importance of preemptive building maintenance. Therefore, a workable solution may be for tenant unions to consult building inspectors and for municipal building departments to create a consultant position to institutionalize this practice. The courtroom could primarily serve as a place to connect people to these resources and services.
CONCLUSION
This article relies on fieldwork in Chicago’s building court and interviews with building court actors to explore some of the legal and financial ramifications of leniency in building code enforcement. Defendants who receive lenient rulings in building court still face an array of punitive outcomes. I identify two mechanisms that transform leniency into punishment: (a) the hassle of leniency sucks time and money from already resource-poor property owners and (b) property markers put owners at risk of losing their property, depreciate property prices, prevent property owners from receiving loans, and threaten the fast-diminishing stock of affordable housing. These mechanisms undermine acts of well-intentioned leniency on the part of municipal officials and legal actors. Rather than letting homeowners off the hook or giving them a break, leniency ensnares defendants in detrimental legal relationships and financial entanglements. Leniency counterintuitively reproduces housing precarity and will continue to do so without additional legal, technical, and financial assistance for property owners. However, this article suggests that leniency is not necessarily the only problem. Rather, irrespective of stringency or leniency, the housing court system is ill-equipped to solve the problem of dangerous buildings without attaching rulings to resources. With its focus on leniency, building court seems like an apt arena to connect people to resources and services. The focus, moving forward, should be establishing these financial resources and services.
It is also important to acknowledge that many of the findings and conclusions in this article are well known to housing court judges, code officials, and other legal advocates. Indeed, there are programs across the country that seek to provide resources and technical and legal assistance to property owners and neighborhood organizations. Some advance receivership as a tool to fund repairs, and others advocate for grants and loans for low-income property owners. Future research could explore the extent to which building court is an appropriate place to connect residents with these services in addition to the efficacy of the services themselves.