Landlord Control of Tenant Behavior: An Instance of Private Environmental Legislation
112 Pages Posted: 9 Apr 2009
Date Written: April 8, 2009
This article looks at how landlords try to deal with the problem of incompatible neighboring tenants by inserting lease provisions under which they try to retain a substantial degree of control over tenant behavior -- with the removal or threatened removal of offending tenants as the sanction of ultimate recourse. For some courts, ceding this power of control to landlords requires a measure of deference that they may find uncustomary or even distasteful. As institutions charged with doing justice, the courts' instinct is to intervene in the norm-creating process, even when the parties before the court have ostensibly agreed beforehand to the norms of behavior (and consequences of violation) that are to apply. Of course, judicial intervention is appropriate when the privately established norms or consequences contravene some articulable public policy, such as the legal prohibitions on discrimination against racial or religious minorities. But the courts have not limited their second guessing on the propriety of agreed norms or sanctions to cases where the adverse effect on the tenant violates some clear public policy.
Keywords: landlords, tenants, forfeiture, nuisance, housing, leases, termination of leases, eviction, freedom of contract, property rights
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