Whatever Happened to Landlord-tenant Law?

Publication year2021
CitationVol. 77

77 Nebraska L. Rev. 703. Whatever Happened to Landlord-Tenant Law?

703

Gerald Korngold*


Whatever Happened to Landlord-Tenant Law?


TABLE OF CONTENTS


I. Introduction .......................................... 703
II. The Legacies of the Era of Reform ..................... 705
A. The Death of Feudalism: From Conveyance to
Contract ........................................... 705
B. Emergence of Statutes............................... 706
C. Residential/Commercial Dichotomy ................... 706
D. Trumping the Bargaining Process..................... 707
III. The End of the Era of Reform .......................... 707
IV. Landlord-Tenant Law at the End of the Century ......... 708
A. Contract/Conveyance Dichotomy Revisited ............ 708
B. The Triumph of the Market?.......................... 709
C. Property Rights and Governmental Regulation ........ 711
D. Personal Choice and Social Values: Religion,
Family, Fair Housing and Other Issues .............. 713
E. Lead Paint: Environmentalism, Habitability, and
the Market ......................................... 715
V. Conclusion ............................................. 717


I. INTRODUCTION

For those who came of age as law students or young lawyers in the late 1960s or early 1970s, no area of the law was more vibrant than landlord-tenant. Landlord-tenant represented the leading edge of real property law, especially when compared to other arcane and archaic areas, such as the law of seisin and future interests which were firmly entrenched in the middle ages. But more so, landlord-tenant was a prime example of the general ferment in the law, where traditional doctrinal structures were challenged and recast and a policy-based jurisprudence emerged.

During those years, the upheaval in traditional landlord-tenant law led to groundbreaking case law, a new uniform statute (the Uni-

704

form Residential Landlord and Tenant Act),(fn1) other state legislative regimes preempting the area,(fn2) a new Restatement for landlord and tenant law with an articulated law reform perspective,(fn3) and a wealth of law review articles offering insightful doctrinal critiques and proposed revisions of the law.(fn4) But in a broader sense, landlord-tenant law captured the imagination of a generation of young lawyers, imbuing them with a belief that the law could indeed respond to new theoretical models and idealistic visions of social justice.


Now, a quarter of a century later, landlord-tenant law no longer occupies the center stage in real property law, let alone in the broader legal and jurisprudential arena. In recent years, we have not seen cases declaring paradigmatic shifts such as Javins v. First National Realty Corp.,(fn5) Sargent v. Ross,(fn6) and Edwards v. Habib.(fn7) The new Restatement of Property has moved on to other areas, including mortgages and servitudes. Commentators have been focusing on other areas of property law, such as the takings issue which arguably has become the leading area of inquiry in the property field and the one having the greatest impact on other areas as well. By one count, for example, the number of law review articles on the subject of landlord-tenant published during the period of 1991-1997 was only one-half the number published during 1967-1973. (fn8)

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Notwithstanding these developments, I believe that as we head into the next century, landlord-tenant law still is alive with path-breaking theoretical battles, clashing policy perspectives, and critical societal issues. Landlord-tenant law still merits our attention on all of these levels.

This Essay will examine the broad themes of the great reforms of landlord-tenant law in the 1960s and 1970s that captured our imagination, suggest why these issues may have been eclipsed in the ensuing years, and identify the core issues in current landlord-tenant law that compels involvement by decisionmakers and commentators.

II. THE LEGACIES OF THE ERA OF REFORM

Many reforms in landlord-tenant law were achieved in the 1960s and 1970s. This section will broadly, and briefly, identify some of the key doctrinal, theoretical, and policy-based themes that emerged from that era and that received great attention from courts, legislatures, lawyers, and commentators.


A. The Death of Feudalism: From Conveyance to Contract


Traditionally, courts and commentators viewed a lease as a conveyance of an estate in land, subject to distinct property law concepts and rules.(fn9) This proposition was flatly rejected in the era of reform, with courts holding that a lease is a contract for the purchase of space and services between the lessor and the lessee.(fn10) This notion of the lease as a contract formed the basis for many of the courts' key decisions, such as the implication of a warranty of habitability in residential leases.(fn11) The legacy of this reform is still seen in current decisions applying contract principles to leases, yielding different results than under traditional property rules.(fn12)

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B. Emergence of Statutes


Professor Mary Ann Glendon insightfully identified a different transformation of landlord-tenant law during the 1960s and 1970s- the emergence of statutes, rather than judge-made rules, as the controlling law in residential landlord-tenant relationships.(fn13) After the initial pathbreaking judicial decisions, legislatures began supplanting courts as the key reform agents in the field.(fn14) Law reform by legislation rather than judicial decision offers certain advantages. Legislatures can engage in fact finding, fully consider an issue, and determine public policy and priorities as well as craft comprehensive solutions. In contrast, courts can only decide issues before them. Moreover, principles of separation of powers arguably require that legislatures make policy choices.(fn15) Landlord-tenant reform by statute presumably allowed for those benefits as well as blunting some criticism of the so-called "activist" courts.(fn16)


C. Residential/Commercial Dichotomy


Both courts and legislatures made key distinctions between residential and commercial tenants in crafting rules. Special protections were extended to residential tenants, including substantive rights such as the implied warranty of habitability mandating minimal standards for shelter (fn17) as well as procedural safeguards to prevent eviction from the home.(fn18) These reforms were based on still-debated assumptions that landlords possess greater economic power and skill

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than residential tenants and that these new doctrines would bring improvements in lower income housing.(fn19)


D. Trumping the Bargaining Process


As a related matter, in the era of reform, legislators and courts sometimes trumped the written lease agreement of the parties by altering and voiding terms. The jurisdiction's legal standards, judicial attitude and philosophy, and the facts of a particular case were important factors underlying such decisions.(fn20)

III. THE END OF THE ERA OF REFORM

The era of reform had a profound impact both on the theory of landlord-tenant law as well as on the substantive and procedural rights of lessors and lessees. The movement for modernization of real property rules, begun in the era of the legal realists and later theorists such as Myres McDougal,(fn21) combined with the 1960s and 1970s view of the law as an engine for social, political, and economic change and a

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belief that government can be a positive force in people's lives,(fn22) powered the era of reform.


This era of ferment and fundamental change in the theory, substance, and procedure of landlord-tenant law began to ebb in the late 1970s. This was not surprising. After all, many of the key questions had been resolved, and people's attention, energy, and ambition turned to new fields. Moreover, with the shift to a legislatively dominated regime, there were fewer opportunities for breakthrough judicial decisions. The seeming intractability of the problem of substandard housing may also have discouraged new reform movements. Importantly, the 1980s saw a re-emergence of a belief in the power of the market to bring a better life. Consequently, some came to reject the legitimacy and effectiveness of judicial and legislative social programs. Additionally, other issues, such as takings and private land use regimes, took center stage in the debate among real property commentators.

IV. LANDLORD-TENANT LAW AT THE END OF

THE CENTURY

It is my view, however, that critical theoretical and substantive issues remain in landlord-tenant law. Moreover, this area of the law reflects key social, political, and economic concerns facing America in the late twentieth century. A common subtext in this area is an ongoing reassessment of the costs, benefits, and legitimacy of governmental regulation of property rights. These important questions require study by a new generation of commentators and action by decision makers. I will outline these key issues-some being unresolved hold-overs from the era of reform, others reflecting new social developments.


A. Contract/Conveyance Dichotomy Revisited


As discussed earlier, the era of reform characterized a lease not as a conveyance but as a contract. In recent years, it has emerged that this conceptualization is not sufficient to describe the multifaceted relationships inherent in a lease.(fn23)

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One recent case illustrates the slipperiness of the conveyance/contract dichotomy and the ambiguity and ambivalence of courts on the issue. In Grant v. Detroit Association of Women's Clubs,(fn24) the issue was whether a landlord-tenant relationship was created by virtue of a contract of employment. There, the occupancy of an apartment was the sole compensation of the employee who was the caretaker of a residential club. The...

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