Is the Modern Lease a Contract or a Conveyance? - A Historical Inquiry

Abstract:     
This article presents a revisionist history of English and American landlord-tenant law. Most legal scholars say that until a current wave of reform, landlord-tenant law was premised on feudal property law. They also say that landlord-tenant law would serve society better if its conceptual basis was shifted from feudal property to modern contract law.

This article says that landlord-tenant law, even before the late-twentieth century reforms, was based on contract law - and that was the problem with it. The article shows that until the mid-twentieth century, contract law was itself harsh and illiberal. It was only in the mid-twentieth century that contract law was itself reformed to make it more consumer friendly. It was only after the recent reform of contract law that landlord-tenant law began to look harsh and outdated. In fact, until the twentieth-century reform of contract law, it was landlord-tenant law's few property-based doctrines that offered tenant's any protection from overreaching landlords.

In addition, this article shows that the current movement to reform landlord-tenant law involves an infusion of the new consumer-oriented contract doctrines into landlord-tenant law. Rather than shifting basis of landlord-tenant law away from property law, this infusion merely updates the perennial contractual basis of leasing law.

Number of Pages in PDF File: 39

Keywords: landlord, tenant, leasing, property law, conveyance, contract, implied warranty of habitability

Accepted Paper Series