When teaching property law, professors often reference the historical distinction between the freehold estate and the nonfreehold estate. The nobles held the freehold estates; the peasants held the nonfreehold estates.1
Thus, “from the beginning, the nonfreehold estate was seen as less important and less prestigious than the freehold estate.”2 Because the landlord/tenant relationship evolved from the nonfreehold estate, one might deduce that tenants are “less important and less prestigious” than property owners and thus, are less deserving of legal protections than owners of a fee simple.
Professors Clara Potter and Lauren Godshall, in their article Renting at the Edge of the World: Climate Change Protections Failing Renters, test whether that deduction is accurate and enduring. They argue that one critical area where tenants continue to receive less protection than homeowners is in the realm of climate change. They explain that current policies and programs designed to address the adverse effects of climate change are often structured around property ownership, thereby neglecting renters. This oversight exacerbates housing inequities, particularly since people of color disproportionately represent the renter population.
A central theme of their article is that laws, policies, and practices have developed such that those renting a home receive fewer protections than those owning a home. One historical example the authors briefly explore is how common law traditionally placed the risk of habitability on tenants, requiring them to bear the consequences if leased premises became uninhabitable.
Although the doctrine of the implied warranty of habitability has since emerged in some jurisdictions to protect tenants from unsafe rental conditions, questions remain about its adequacy in the face of climate-related disasters.
For instance, when a rental unit is destroyed or becomes uninhabitable due to a hurricane or flood, the tenant should be relieved of rent obligations under the implied warranty. Yet that tenant is now displaced and must compete for housing in a market simultaneously disrupted by the same event. Moreover, as the authors point out, in some jurisdictions—such as Louisiana—the lack of habitability may not excuse nonpayment of rent, leaving tenants financially vulnerable and possibly unhoused after the disaster.
While climate change threatens both renters and homeowners, the legal and policy response has overwhelmingly focused on those who own property. Renters are at risk for damage to or destruction of their rental property and government condemnation of their communities. Renters are at risk that their landlords may fail to repair and maintain the premises. Additionally, renter households may not have the financial resources to evacuate should a disaster occur. Yet, as the authors emphasize, few programs have been tailored specifically for renters affected by climate change.
Potter and Godshall review federal programs administered by FEMA, HUD and the National Flood Insurance Program that could assist renters with post-disaster benefits. Although the programs are available to renters, they have limitations. For example, financial assistance with repairs and longer-term hazard mitigation are usually only available to owner-occupied homes.
The authors also review state programs, asserting that “how a state treats renters when not in crisis is often amplified during times of crisis.” Assistance to tenants during weather-related disasters often reflects the state’s habitability and eviction protections.
Comparing how New Jersey managed relief and mitigation after Hurricane Ida with how Texas managed relief and mitigation after Hurricane Harvey, the professors conclude that certain parts of the country will be inhospitable to renters as climate change worsens. However, even in a state like New Jersey that has created some benefits for renters, programs continue to prioritize homeowners over renters.
Two local pilot programs are reviewed as well. One program in Philadelphia is designed to assist landlords, particularly small landlords renting to low-income residents, with making repairs, many related to concerns regarding climate-change habitability (e.g., heating and cooling systems and energy efficiency upgrades).
In proposing and analyzing possible solutions, the authors challenge policymakers to reimagine legal concepts to better protect renters from the detrimental effects of climate change. They recommend several reforms to ensure that tenants receive equitable treatment, including mandating landlord disclosure of prior flooding in rental units and incorporating renter needs into managed retreat policies from vulnerable areas. Most importantly, they argue for the construction of affordable, climate-resilient housing as a transformative step forward.
Rising seas, sweltering summers, hurricanes, flooding, and droughts; renters and homeowners will both suffer from the impacts of climate change. Professors Potter and Godshall emphasize how current laws and policies treat renters differently than homeowners when seeking to mitigate those impacts, leaving renters with fewer protections from the harms of climate change. Their work challenges lawmakers and legal educators alike to reconsider the legacy of the freehold/nonfreehold distinction—and, with it, the assumptions about whose interests the law is designed to protect.
