The Illinois Appellate Court in Draper & Kramer v. King reversed a court ordered eviction on the ground that the tenant likely did not appreciate that she had agreed in a settlement to vacate her residence in addition to paying arrears on rent. In the chaotic environment of eviction court proceedings, tenants too often pledge paying back rent without realizing that, at the same time, they have agreed to be evicted and that the court ordered eviction will follow them for the rest of their lives. In Chicago, at least, the potential for confusion is enhanced because the agreed upon orders are termed Orders of Possession, which do not signal to the uninitiated that an eviction is contemplated. To determine whether there continues to be an appreciable risk that tenants do not understand agreed-upon orders fully even after Draper & Kramer, we observed 250 eviction proceedings in Chicago’s eviction courts. In more than twenty-five percent of the cases resolved by agreed upon orders, judges rubberstamped the agreements without asking whether tenants understood their terms. At the same time, we noted that other judges’ questioning in several cases prompted tenants to reconsider whether the agreements were in their best interest.
Eviction brings with it a host of other ills, including adverse impact on work and health. Moreover, the fact of an eviction follows tenants thereafter, often preventing access to public housing and lowering credit ratings. Although the right to a home is not a constitutionally protected right, we survey analogous areas in which judges ensure that unrepresented individuals understand the consequences of their waivers of a fundamental interest, such as in the plea bargaining and right to self-representation contexts. Moreover, judges ensure that unrepresented individuals understand waiver of certain statutory rights as well, as in immigration and family law settings.
Furthermore, courts in class action and bankruptcy contexts independently scrutinize settlements to ensure protection for absent parties. Similarly, in settlements involving minors, courts also assess the fairness of agreed upon terms.
Accordingly, we conclude that there should be a duty of inquiry in the eviction court context before judges enter agreed upon orders between landlords (or their attorneys) and unrepresented tenants. The duty should be brief but targeted to ensure that the tenants understand (1) that they have agreed to vacate their premises as well as pay back rent, and (2) that the agreement would be entered as a final court order of eviction. The duty of inquiry not only should guard against unwitting waiver of a fundamental interest, but it will also conserve judicial resources overall by promoting finality and limiting appeals similar to that successfully raised in the Draper & Kramer case itself.
Harold J. Krent,
Eviction Court and a Judicial Duty of Inquiry,
Available at: http://scholarship.kentlaw.iit.edu/fac_schol/842