Access to Justice | A Troubling Snapshot of Oklahoma’s Eviction Courts
By Adam Hines
In one of Oklahoma’s housing courts, a young mother approaches the bench. She carries a stack of papers, ready to defend herself. Her landlord approaches alongside her – she, too, has her own papers in preparation for arguing her case. But neither will need their documents. The judge asks nothing of the landlord, instead turning to the tenant. The judge asks, “Do you have a lease?” The young woman replies, “Well, yes.” The judge adds, “Are you behind on rent?” The mother says, “Yes, but I gave notice …” Cutting her off, the judge declares, “Possession granted.” The tenant protests, “But I just need more time for my kids and my dogs, and I gave notice under the …” Again, cutting her off, the judge waves their hand and dismisses the parties, “You can argue about all that at the damages hearing, sorry.” Angry and misty-eyed, the young tenant clenches her papers and leaves. Oklahoma did not listen to her that day.
In the summer of 2022, the Oklahoma Access to Justice Foundation (ATJ) conducted a study of Oklahoma’s eviction courts.1 Three key issues stood out from that study: 1) geographic inequality, 2) Oklahoma’s two different paths to eviction and 3) inconsistencies in the application of the Landlord Tenant Act.2 The full report is available at bit.ly/OKEvictionReport.
Consistency of due process and justice is not apparent in Oklahoma’s housing courts. Oklahoma is one state with one universally applicable Landlord Tenant Act. Yet, where parties live largely dictates the eviction experience for landlords and tenants – so much so that the various approaches might appear to an outside observer to be applying drastically different laws, not one statewide statute. Counties in our study fell on various points of this due process spectrum. Some deployed the “two-question” approach seen in the young mother’s story above. Some held trials ranging in formality, and others quickly questioned the landlord before employing a similarly brief two-question approach with tenants.
Docket size and judicial approach are the main drivers behind these geographic inconsistencies. Unsurprisingly, large urban areas, such as Oklahoma, Tulsa, Payne and Cleveland counties, have far larger daily eviction dockets than smaller, rural counties. Judges in these larger counties take a streamlined approach to process cases, but tenants, including the stories shared in our report, are often lost in the rush. For more on how enhanced filing requirements could address docket size, please see the full ATJ report.3 Judicial approach may be more difficult to change. ATJ hopes to spread awareness and bring the judicial community together to create a consensus on processes in evictions.4
OKLAHOMA’S TWO VERY DIFFERENT PATHS TO EVICTION
A pro se landlord bringing one or two evictions a year encounters a far different eviction system than the large (often corporate) landlord with an attorney.5 One of the most significant differences is in mediation and negotiation. The mediations observed were most often successful – i.e., the mediator helped the parties come to a written agreement and avoided an adversarial hearing with the judge.6 But judges only referred cases with pro se landlords to mediation. Attorneys for landlords instead negotiated with pro se tenants alone. In other words, mediators were used when both parties were pro se, had no legal training and, therefore, relatively little power imbalance existed. Yet, mediators were not used when one party had a substantial negotiating advantage in the form of an attorney, thus creating a considerable power imbalance.
With this de facto mediation policy, the courts have inadvertently created an inequity for all pro se parties, landlords and tenants. By engaging pro se landlords in a process fundamentally different than for landlords with attorneys, this system widens the advantage large landlords have over smaller “mom-and-pop” landlords in navigating the courts with alarming speed. And pro se tenants suffer in negotiations where they are at a distinct disadvantage. In short, all pro se parties lose.
INCONSISTENCIES WITH THE LANDLORD TENANT ACT
Discretion to Give Tenants More Time to Vacate
Often during ATJ’s observations, tenants approached the bench, admitted they were behind on rent and pleaded for additional time to move out beyond the two days guaranteed under the law. ATJ watched one elderly couple request more time to move out of a house they had lived in for over a decade. The husband sought more time to vacate because his wife was ill and on oxygen support – a fact apparent to all in the courtroom because his wife carried an oxygen tank and mask. Such a disability meant moving quickly would be difficult, according to the husband. Nevertheless, the judge, claiming they lacked the power to give more time, granted the landlord possession immediately, leaving the couple with only 48 hours to move.
Two other common reasons for these requests were: 1) tenants’ need to care for and safely house their children during the move and 2) planning with employers to avoid job loss. These worries for tenants are consistent with research connecting evictions to job loss and long-term negative effects on children.7 Many judges throughout the state do commonly set later dates for eviction.8 No provisions of the Landlord Tenant Act expressly prohibit judges from giving tenants more time to vacate.9 Still, some judges ATJ observed this summer, like the judge from our story, insist they have no power to give tenants more time to vacate.
The Written Notice Question
The definition of “written notice,” or lack thereof, is another common barrier for pro se tenants. Consider this story ATJ observed: A tenant approaches the bench – late for court because she was unable to find childcare for the child she now carries in her arms before the judge. The woman assures the judge that she withheld rent because she notified the landlord of issues with the air conditioning and mold, but the landlord never made the repairs. The mother offers a text message as proof of notice. After explaining that text message notification is not sufficient “written notice,” the judge evicts the tenant. Stories like this one played out many times across various counties ATJ observed. If courts treated text messages and email as written notice, the ability for all pro se parties to make their case would improve. Pro se landlords could use text messages to prove they communicated with tenants about repairs or past-due rent, and pro se tenants would have a common sense path to notifying their landlords about issues with habitability on the property.
This summer, housing courts in our state often failed to serve many Oklahomans but especially our most vulnerable citizens, the elderly and parents with children. These issues arose from various places: overcrowded dockets, geographic inequality, underused mediation and inconsistent applications of the Landlord Tenant Act. Common sense solutions are available. Enhanced filing requirements, judicial training, investments in mediation and sensible changes to the Landlord Tenant Act can improve both equity and efficiency in our housing courts.10 If we take action, the next time a vulnerable Oklahoman pleads to be heard, Oklahoma may listen.
ABOUT THE AUTHOR
Adam Hines is a third-year law student at the OU College of Law. He plans to remain in Oklahoma after graduation and pursue a career in public interest work.
1. This article is a short-form version of ATJ’s full Eviction Report. As a result, this article focuses on the problems ATJ observed, whereas the full report suggests common sense solutions to all these issues. For more details on the data of this study and/or suggested solutions, please see the full ATJ report at bit.ly/OKEvictionReport.
2. Oklahoma Residential Landlord and Tenant Act, 41 O.S. §101.
3. See ATJ Eviction Report at bit.ly/OKEvictionReport.
4. Housing committees composed of judges, lawyers and community leaders already exist in multiple neighboring states. See the Civil Justice Committee in Texas at https://bit.ly/3D72KWA; see also the Ad Hoc Committee on Best Practices in Evictions from Kansas at https://bit.ly/3eArcp7.
5. See Ryan Gentzler, “Evictions as Big Business: Handful of Companies Responsible for Vast Majority of Oklahoma Eviction Filings,” Open Justice Oklahoma (Aug. 18, 2022), https://bit.ly/3Qo1YYc.
6. See the directory for the Early Settlement Mediation Program in Oklahoma. https://bit.ly/3QpfOtf.
7. Matthew Desmond and Carl Gershenson, “Housing and Employment Insecurity Among the Working Poor,” 63 Soc. Probs. 46, 47 (2016); Matthew Desmond, et al., “Evicting Children,” 92 Soc. Forces 303, 320 (2013).
8. For a few of many examples of judges setting a later date for eviction, see these OSCN docket entries: In case SC-2022-813 from Canadian County, Judge Strubhar granted an eviction judgment on July 11, 2022, but gave the tenant until Aug. 1, 2022, to vacate. See https://bit.ly/3TUTSt7; In case SC-2022-7440 from Tulsa County, Judge Bruce granted the eviction judgment on July 5, 2022, but gave the tenant until July 21, 2022, to vacate. See https://bit.ly/3TS1Z9M; In case SC-2022-510 from Rogers County, Judge Smith granted an eviction judgment on July 6, 2022, but gave the tenant until July 20, 2022, to vacate. See https://bit.ly/3Bow8GC.
9. All sections of the Landlord Tenant Act dealing with lease termination and/or eviction do not outline a set time to vacate for all tenants. See generally 41 O.S. §§131-132, 111.
10. For more on these solutions, please see the full ATJ Eviction Report at bit.ly/OKEvictionReport.
Originally published in the Oklahoma Bar Journal – OBJ 93 Vol 8 (October 2022)