Protecting Renters from Flood Loss

31 Pages Posted: 3 Jun 2021 Last revised: 10 Nov 2021

See all articles by Ellen Heiman

Ellen Heiman

University of Pennsylvania Carey Law School

Date Written: May 15, 2021

Abstract

Just over one-third of all people living in the United States are renters. Renters bear disproportionate risk of sustaining flood-related harms because they enjoy far fewer legal and economic protections than homeowners; with only limited recourse available—options generally include retroactive and expensive enforcement opportunities—concerted policy action will be necessary to protect renters as climate change increases storm frequency and magnitude. Renters’ insurance, which is often required by landlords, does not cover flood damage. The National Flood Insurance Program (NFIP), which homeowners living in the Special Flood Hazard Area (SFHA) must buy into, is only optional for renters.

In an effort to close these information and coverage gaps, some state and municipalities have passed or proposed legislation that requires landlords to disclose to renters when the property they are considering leasing has either flooded in the recent past or is at serious risk of flooding, or both; these requirements, however, still fail to capture the full picture of flood risk for all at-risk properties. In this comment, I will 1) survey the current body of research cataloguing increased flood risk, particularly in urban areas with high proportions of renters, and particularly in low-income and historically Black communities; 2) analyze the current protective doctrine under landlord/tenant and tort law, along with state and municipal codes that instruct flood risk disclosure to renters; and, 3) argue that these disclosure laws, while perhaps a necessary step in increasing transparency and communicating with renters, fall short and pose problems sounding in equity when the reality is that disclosures rarely change behavior and renters often do not have bargaining power or great flexibility to seek higher ground. Rather, disclosure must be required along with NFIP reform that requires landlords to properly mitigate all rental properties, that requires flood map updates every five years, and that incorporates future risk and stormwater risk into flood maps.

Keywords: landlord-tenant, renter, flood, insurance, NFIP, climate change, risk, disclosure, land use, environment

Suggested Citation

Heiman, Ellen, Protecting Renters from Flood Loss (May 15, 2021). University of Pennsylvania Law Review, Vol. 170, No. 3, 2022, Available at SSRN: https://ssrn.com/abstract=3858668 or http://dx.doi.org/10.2139/ssrn.3858668

Ellen Heiman (Contact Author)

University of Pennsylvania Carey Law School ( email )

Philadelphia, PA 19104
United States

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