The Common-Law Conception of Leasing: Mitigation, Habitability, and Dependence of Covenants

Abstract

This article describes the core features of landlord-tenant relationships, including the basic rent-for-possession exchange, habitability, assignment and subletting, eviction and tenant abandonment. In the process, it shows why traditional lease law has sometimes seemed so odd compared with “ordinary” contract law.

Many argue that the modern law of leases is due for a conceptual revolution, rejecting the vestiges of "conveyance" theory in favor of ordinary "contract" law. However, on more careful analysis, these views appear to stem from a basic misunderstanding of both the law of contracts and of leasing.

Nevertheless, there is clearly a need for a suitable conceptual account to support certain socially required changes in the law of landlord and tenant. However, it turns out that the basic framework of the law, as it has come down to us from through the years, provides an ample basis and, indeed, a mandate for making the needed reforms.

Keywords: landlord, tenant, leases, leasing, assignment, subletting, subleasing, rent, habitability, warranty of habitability, mitigation, damages, remedies, eviction, constructive eviction