Brian M. Miller


Eviction burdens tenants and their households with incredible hardship. But it long has been the standard legal remedy when a tenant fails to keep up with rent payments. The combination of these two facts has birthed a crisis. Many commentators have responded to the crisis by suggesting legislative or executive solutions, but courts and the common law have been mostly ignored. This article focuses on courts and the role they can play under the common law to minimize unnecessarily harmful evictions. By considering reasonable expectations and interests of not only landlords, but of tenants and the public as well, this article proposes that courts should opt for a monetary remedy in certain cases in which eviction may otherwise be the norm. In many cases, eviction lacks theoretical justification. Although some landlords are intimately affected by the day-to-day use of their rental units, others are not. In fact, some landlords hold so many rental units that their interest in the units is more like that of a distributor’s interest in commercial goods. They seek to generate income from the units, but rarely, if ever, use the properties themselves. When a rent arrears dispute involves such a landlord on one side, and a tenant likely facing homelessness on the other, eviction may be unjustified and a monetary remedy perhaps should replace it. If courts were to consider this approach, they could find support from common-law remedial principles in both contract and property.

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