In Rhode Island, 6,328 households were thrown into the eviction process over the past year. An eviction filing begins what is typically an arduous process for tenants: making early-morning court appearances, spending time away from work, navigating complex legal procedures, and using limited financial resources to defend their ability to remain in their homes. Throughout the process, the fear of losing their housing weighs heavily on their shoulders. When cases end in the tenant’s favor, they may feel frustrated that they expended vast resources just to return to their status quo; when it ends with an eviction, the tenant often scrambles to find alternative housing for themselves and their dependents.
In recent years, a growing number of states have recognized that tenants whose cases concluded in their favor should not have had these proceedings held against them, and tenants whose cases resulted in eviction deserve second chances to attain housing. 17 states—including through bipartisan efforts—allow certain eviction records to be sealed from the public, which protects tenants from housing discrimination in the future. Yet, only three states seal eviction cases automatically; the other 14 require tenants to initiate the sealing process themselves. Automatic sealing relieves tenants of the need to have extensive legal knowledge and resources, correctly reallocates the legal responsibility away from the defendant, and shortens the period for which tenants—who are at risk of becoming unhoused—must wait for relief. States that allow eviction records to be sealed should implement automatic sealing processes to protect tenants from unfairly burdensome processes and potentially irreparable harm.
To be clear, while the 14 states that provide tenant-initiated sealing have space to improve, they treat their tenants better than the 33 states that do not allow eviction record sealing at all. These states defer to arguments that sealing prevents landlords from properly vetting potential tenants, though tenants argue that the records are an unfair roadblock in their path to obtaining housing. While this article will focus on the distinction between automatic and tenant-initiated sealing, offering the opportunity to seal eviction records at all is a strong first step.
Before delving into why automatic sealing is preferable, some background on the eviction process is warranted. Broadly, eviction cases fall into three categories: nonpayment of rent, fault other than nonpayment, and no cause. Each case can result in one of three outcomes: dismissal, judgment for the tenant, or judgment for the landlord. A given case’s type and result determine its eligibility to be sealed. In Massachusetts, where tenants must initiate the sealing process, cases that result in dismissals or judgments for the tenant can be immediately sealed, as can cases that were brought for no cause—regardless of the outcome. Nonpayment cases that result in a judgment for the landlord can be sealed four years after the case ends, and fault cases that conclude with the same outcome can be sealed seven years after the case ends. Jurisdictions that automatically seal cases, such as Washington, D.C., track and automatically seal cases once they are eligible, while those that require tenant action wait for tenants to notify the court that the conditions for sealing have been satisfied.
Filing a petition to seal is unnecessarily challenging. Tenants must first know that the right to seal their records exists, which is uncommon. Even when tenants are aware of their right, filing the petition requires a degree of legal knowledge that many do not have—and because defendants in civil cases lack a constitutional right to counsel, tenants cannot rely on a legal expert to help them complete the petition properly. As only four percent of tenants have legal representation, initiating the sealing process poses a significant legal challenge. Tenants also face logistical challenges, as accessing the petition process—at a courthouse or online—can take time and transportation resources that tenants often do not have. These burdens have the potential to cause irreparable harm to tenants, as tenants operate in unstable markets, and the existence of an eviction record in the public’s view for any additional time may increase the number of potential landlords who reject a tenant’s housing application. In states with eviction sealing laws, tenants who meet the sealing requirements are essentially guaranteed to have their petitions granted; thus, requiring them to have the know-how and resources to navigate the process themselves imposes an unnecessary obligation. Automatically sealing the record, therefore, ensures that tenants are not overly strained without compromising the law’s intention.
Automatic sealing also appropriately allocates the responsibilities of the justice system onto the complainant. A steadfast aspect of the United States justice system is that the party bringing an action holds the burden of proving its claim beyond a given standard—beyond a reasonable doubt in criminal court and beyond a preponderance of the evidence in civil court (including housing court). Defendants should be unburdened until the complainant proves their claim and not be hampered by undue procedural burdens. This principle can be extended to eviction record sealing: In states in which an action to seal initiated by the tenant will almost certainly be granted, requiring the tenant to take action is an undue obstacle that the United States justice system seeks to avoid. The tenant only needs to demonstrate that the statutory length of time has passed since the case ended (and potentially that they have not been involved in similar cases in the meantime); as courts can track these metrics themselves, requiring tenants to file petitions is unnecessary. Further, automatically sealing the record properly allocates responsibility for action back onto the plaintiff, as a landlord could attempt to convince a court to unseal the record. While attempts like this would likely fail—the intention of allowing sealing is to keep the records from landlords’ eyes—it appropriately makes it the landlord’s responsibility to gain access to the record rather than the tenant’s responsibility to seal it. The law grants tenants the right to seal their cases; this right should not be obstructed by burdening the defendant to take action.
Beyond fairness, automatic sealing also allows courts to fix mistakes without imposing undue hardships on tenants. Say, for example, a tenant files a petition that is wrongly denied by the court. To overturn the denial, the tenant must appeal the decision or file the petition again—both of which take time—while the tenant’s record remains publicly available and can actively harm their housing opportunities. Alternatively, if automatic sealing were implemented, an incorrect decision by the court regarding the date and conditions under which the case would be sealed would be set well before the sealing takes place. If the date or conditions are listed incorrectly, the tenant could appeal and wait for a ruling as the clock toward eligibility for sealing is ticking, rather than after the clock has run out. Thus, automatic sealing allows the tenant to pursue an appeal without delaying the sealing of their case.
While some worry that automatic sealing would place undue responsibility on the government and the court system, the opposite is true. For instance, automatic sealing in California helped clear court dockets and reduce administrative burdens. Automatic sealing also reduces costs by eliminating the need to host sealing workshops to teach tenants about the law (which many localities have done). Courts may also find it easier for a judge to determine a date at which the case will be sealed and essentially set a reminder to do so when the date comes, rather than evaluating every petition to seal from its case’s origin. So, in reality, automatic sealing shifts the process from requiring the court to react to tenant action to a system of streamlined efficiency.As more states consider allowing eviction records to be sealed, they must understand how to best implement those policies—and those that already have must reconsider as well. Automatic sealing removes unnecessary burdens from tenants, properly allocates the responsibility of the legal system onto landlords, and allows tenants quicker relief. As states continue to grapple with various tenant-related issues, automatic sealing is a simple, efficient, and just mechanism to protect tenants and increase fair access to housing.