THE ANTI-TENANCY DOCTRINE.

• Author: Schindler, Sarah

INTRODUCTION 270 I. CATALOGUING THE ANTI-TENANCY DOCTRINE 277 A. Land UseLato 277 1. Amount of Land Zoned for Single Family Use 277 2. Geographic Locat ion of Amenities and Disamenities 281 3. Notice Requirements and the Planning Process 284 B. HousingLaio 286 1. Predictability in Housing Costs and Stability in Housing Tenure 286 2. Evictions and Foreclosures: Repercussions for Non - Payment of Rent Versus Mortgages 290 3. Common Int erest Communities and Voting Rights 295 4. Affordable Housing 297 a. Legal Barriers to Creating Affordable Rental Housing 299 i. State-Level Limitations on Regulatory Tools 299 ii. Accessory Dwelling Units and Residency Requirements 300 b. Overemphasis on Affordable Homeoumership Options 301 c. Additional Hurdlesfor Subsidized Housing Tenants 303 5. Relocation In centives 305 6. Limits on Commercial Use of Premises 307 7. Remedies for Pursuing Housing Code Violations 309 C. Constitutional Law 311 1. First Amendment: Free Speech 311 2. Second Amendment 312 3. Fourth Amendment 314 a. Searches: Single-Family Curtilage and Multifamily Hallways 314 b. Administrative Searches Pursuant to Rental Inspections and Housing Codes 316 c. Landlord Searches 317 4. Fifth Amendment: Eminent Domain 318 a. No Compensation for Most Residential Tenants 318 b. Post-Kelo State Laws Provide Less Protection to Tenants 320 5. Fourteenth Amendment: Voting Rights 322 D. Public Safety Law 324 1. Crime-Free Housing and Anti-Nuisance Ordinances 324 2. Hazard Risk and Di saste r Relief 328 a. Before a Disaster:Hazard Risk 328 b. After a Disaster: Disaster Relief 329 E. Consumer Protection and Contract Law 334 1. Consumer Credit 334 2. Utility Service: Monopolization and Disconnection 336 3. Consumer Protection Laws 338 F. Tax Law 339 II. SOURCES OFTHE ANTI-TENANCY DOCTRINE 343 A. The Legacy of Feudalism 343 B. Racism 346 C. The Culture of Homeo wnership 351 D. NIMByism 354 E. The Influence of Conservative LegalFrames 356 CONCLUSION 357 INTRODUCTION

Luis is a tenant in a large apartment building. The building owners have decided to change the building's use from a "rooming house"--with shared facilities--to market rate two-bedroom apartments. A city ordinance requires notice of the proposed changes to be mailed to nearby property owners, but not to nearby tenants--even tenants living in the very building where the change in use will occur. Thus, nearby homeowners are informed of and show up to the public hearing where the city will discuss the building's potential change in use; most of them support the change, commenting that the rooming house has never "fit the character of the neighborhood." But Luis and the other building tenants are not present at this meeting because they were unaware that it was taking place. The city decides to approve the change of use. The building owners inform Luis and his neighbors that they will have to move as soon as renovations begin. Neither Luis nor most of the other existing tenants will be able to afford the building's new, higher rent once renovations are complete.

Molly signs a lease for new apartment. Although the apartment has flooded three times in the past three years, Molly's landlord fails to notify her of this fact. While sellers must notify prospective buyers of this type of information, there are no laws requiring similar disclosures to prospective tenants. The apartment building is located in a flood zone, but residential landlords are not required to carry flood insurance; federal mortgage law only makes flood insurance mandatory for owner-occupants in such locations. A few months after Molly signs her lease, the building floods in a major hurricane and is rendered uninhabitable. Because Molly's landlord does not carry flood insurance, he decides not to fix the property. Molly stays in emergency shelters and motels temporarily; she eventually finds a new apartment, but the rent is $200 more per month than her old apartment, as rents in the area have increased since the hurricane. To help cover her relocation and increased living expenses, Molly applies for disaster assistance, but her application is denied: the state agency administering Federal Emergency Management Agency (FEMA) aid informs her that homeownership is a perquisite to obtaining direct financial assistance.

Abbe, a homeowner, and Bex, a renter, both lost their jobs at the start of the COVID-19 pandemic. Abbe quickly learned that she would not have to pay her mortgage for up to a year; the federal government had rapidly implemented robust, uniform protections for homeowners, including mortgage forbearance and modification of mortgage terms that allowed borrowers to tack missed payments on to the end of their mortgage terms. (1) In contrast, although some states and localities instituted eviction protections, the city where Bex lived did not, and no uniform federal eviction protection was put into place for renters until over six months after comparable protections were enacted for homeowners. Even then, federal eviction protection was relatively short-lived; the Supreme Court struck it down as unconstitutional in July 2021, even as the Court allowed federal mortgage forbearance protections for homeowners to remain. Federal rental assistance programs were enacted in 2021, but they hinged on landlord cooperation, which landlords were free to refuse. Thus, while Abbe was able to stay in her home despite not paying her mortgage (and was further able to delay repayment of missed payments until the end of her mortgage term), Bex's landlord refused to sign the paperwork for her to obtain federal rental assistance, and she was evicted from her apartment for nonpayment of rent.

Why are the renters and owners in these hypothetical scenarios treated so differently from one another? This Article contends that courts, policymakers, and legal scholars have failed to even ask this question, let alone answer it. Rather, the second-class status of tenants is a largely unacknowledged and unquestioned definitional baseline. This Article identifies and challenges this assumption, uncovering how the law has systematically disadvantaged tenants in previously unrecognized ways across a wide range of legal doctrines. In that vein, this Article confronts the question: should homeownership dictate rights in contexts where both tenants and homeowners have a common interest in their home as shelter? The Article argues that long-standing structural inequities and deeply embedded forces--such as racism, classism, and a culture of homeownership--have led to affirmative law and policy choices that treat tenants as less than homeowners. This Article thus fills a gap in legal literature by exposing this previously under-recognized yet insidious and pervasive pattern in the law, which we term the Anti-Tenancy Doctrine.

The Article catalogues the Anti-Tenancy Doctrine across a range of unconnected doctrinal areas--from constitutional law and land use law to tax law and criminal law. While legal literature on landlord-tenant law has focused on the rights that tenants have gained vis-a-vis landlords, outside of the landlord-tenant context, tenants are routinely accorded a second-class status. For example, when a residence is damaged by a natural disaster, federal, state, and local disaster aid is disproportionately made available to homeowners, not renters. (2) An eviction filing can effectively bar a tenant from future rental housing, while a foreclosure typically will not prevent a homeowner from getting another mortgage. (3) Legal and physical barriers make voter outreach and canvassing of tenants more difficult than for homeowners, which limits tenant participation in the political process. (4) Local anti-nuisance ordinances impose heightened governmental monitoring on tenant behavior that is not imposed on homeowners, and can result in evictions of tenants who have never been convicted of a crime. (5) And while most homeowners benefit from the predictability in housing costs provided by fixed rate mortgages, most tenants are vulnerable to unpredictable and exorbitant increases in their housing costs, with average rent prices increasing upwards of forty percent in some major U.S. housing markets over the past year alone. (6)

While not every legal doctrine or public policy that treats owners and renters differently is nefarious, this Article exposes how the Anti-Tenancy Doctrine has been a largely unrecognized factor contributing to two of the major social harms of our time: deepening wealth inequality and structural racism. As to the former, the anti-tenancy laws and policies that this Article identifies prevent renters--who make up over one-third of U.S. households (7)--from building wealth, exacerbating already dramatic problems of inequality: the median wealth of homeowners is close to eighty-nine times greater than the median wealth of renters. (8) The pandemic and associated disruptions to the housing market have further magnified the impacts of anti-tenancy, making this Article's analysis particularly timely (9) Rapidly escalating housing costs and enormous shortfalls in housing supply have locked out many would-be homeowners who have instead retained the status of tenants. (10) As homeownership becomes more out of reach for more people, it is critical to better understand the doctrinal underpinnings and normative valence of the Anti-Tenancy Doctrine.

With regard to the latter, this Article further demonstrates that anti-tenancy disproportionately impacts low-income individuals and people of color--especially Black and Latinx families, the majority of whom are renters. This adds another layer of structural discrimination to the U.S. housing market. (11) In recent years, many scholars (including these authors) have written about the structural barriers to homeownership faced by low-income individuals and people of color. (12) A growing number of scholars have recognized that U.S. law and policy drive homeowners...