Is the Modern Lease a Contract or a Conveyance? - A Historical Inquiry
Journal of Urban Law, Vol. 52, No. 4, p. 649, 1975
39 Pages Posted: 10 Sep 2008
Date Written: April 1975
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 It was only after the recent reform of contract law that landlord-tenant law began to look harsh and outdated.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.
Keywords: landlord, tenant, leasing, property law, conveyance, contract, implied warranty of habitability
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