In their forthcoming article, The Anti-Tenancy Doctrine, Sarah Schindler and Kellen Zale proclaim, “The law has failed tenants.” The authors then provide solid evidence of that failure and identify a concept they call the Anti-Tenancy Doctrine.
On Sundays, I treat myself to newspapers, to actual printed newspapers. I make a cup of tea, sit at the table, take a sip, and read the printed word. If I have a copy of The New York Times, I usually read the real estate section first, if only to drool over photos of homes that I cannot afford.
On a recent Sunday, however, the paper published a special issue on renting in the real estate section. The graphic for the first page of the section caught my attention—it pictured a person dressed in yellow and black who appears to be falling into a series of rotating black boxes outlined in a red “For Rent” sign at the bottom.
As a property professor, I wondered what this graphic represented about renting and about our beliefs about renters. Was renting a fall into a deep dark hole? What caused the tenant to fall into that hole, into that abyss? Didn’t the law offer protection from falling into that hole?
Professor Schindler and Zale provide some answers to the questions raised by that illustration. Their article surveys various areas of the law that differentiate between a renter and a homeowner when determining a party’s legal rights. Those differences are often made without any consideration of whether a distinction should exist, leading to anti-tenancy bias.
Professor Schindler and Professor Zale look at this anti-tenant bias in areas of constitutional law, housing law, public safety law, consumer protection and contract law, and tax law. They cover a wide array of topics, from Fourth Amendment searches to Fifth Amendment eminent domain compensation, from disaster relief to credit reporting systems, and from voting rights in common interest communities to voter registration outreach.
Some of the specific examples are familiar such as the mortgage interest deduction. Other examples have received less consideration as being anti-tenant, such as notice requirements in zoning ordinances. Homeowners are usually required to receive notice of proposed zoning changes and an invitation to attend public hearings; tenants, however, are seldom required to be notified even when they may be similarly impacted by the zoning change.
When these seemingly unrelated practices and policies are threaded together, it is hard not to agree with their conclusion that an anti-tenancy bias exists in the law and with their recognition of an Anti-Tenancy Doctrine.
Professor Schindler and Professor Zale then begin to answer the question of why renters and owners are treated differently. They identify five distinct causes: 1) classism; 2) racism; 3) consumerism; 4) NIMBYism; and 5) the influence of classical liberalism.
They begin with a discussion that should be familiar to all first-year property law students–the freeholder/non-freeholder distinction that dates back to feudal England. The authors ask us “to interrogate the common law’s assumption that a leasehold interest is ‘lesser than’ a freehold interest.” They briefly consider the other causes, reminding us how tenancy is often used as a proxy for race and how homeownership is considered a civic virtue, but rentership is not.
The article ends with an invitation to dialogue about how to respond to anti-tenancy and with suggestions for future scholarship on the Anti-Tenancy Doctrine. The authors distinguish between developing solutions that elevate the status of tenants and those that help tenants become homeowners. For many, homeownership is not an option. Thus, we will need to shift our thinking about rentership and homeownership to ensure that housing status is not the determinant of legal rights.
As I read the article, I realized that this dialogue on the inequities caused by Anti-Tenancy Doctrine and possible solutions could easily begin in the first-year property course. Property professors can thread the discussion of why renters and homeowners are treated differently (and whether they should be) not only when covering the topic of landlord/tenant law, but also when teaching topics such as estates and future interests, zoning, and restrictive covenants. Such discussions could provide a unifying framework for topics that students often struggle to relate to one another.
That dialogue could also lead to a different graphic the next time The New York Times decides to publish a special edition on renting. Maybe instead of a figure falling into a series of black boxes, the artist could illustrate the concept of renting with a simple graphic of a renter enjoying a home and shelter protected by law.
