The Anti-Tenancy Doctrine
171 University of Pennsylvania Law Review _____ (2022-23 Forthcoming)
U of Houston Law Center No. 2022-A-2
69 Pages Posted: 29 Mar 2022 Last revised: 28 Oct 2022
Date Written: March 28, 2022
The law has failed tenants. A range of distinct legal doctrines, coupled with structural inequities, systematically disadvantage tenants in previously unrecognized ways. This Article identifies a new way of looking at this pattern of collective impediments to tenants’ rights, wealth, and power, which we call the Anti-Tenancy Doctrine.
This Article’s analysis of the Anti-Tenancy Doctrine makes three novel and important contributions to legal scholarship. First, it catalogues how laws and policies across a range of otherwise unconnected doctrinal areas—from constitutional law to land use law to criminal law—treat tenants as lesser than homeowners. Identifying and naming this thread is more than a mere descriptive exercise: it exposes the systemic and insidious anti-tenancy bias in the law. Cumulatively, the disparate treatment of tenants and homeowners has perpetuated the wealth gap, worsened the affordable housing crisis, and subsidized homeownership by shifting costs to renters. Further, these disparities have had grave consequences for people of color: the majority of Black and Latinx households—who have been impacted by a long history of racist structural barriers to homeownership—are renters.
Second, the Article presents the likely causes of the Anti-Tenancy Doctrine and analyzes how the drivers of this doctrine are themselves normatively problematic. Here, the Article focuses on the historic origins of the freehold-leasehold distinction, the ideology surrounding homeownership in the U.S., the influence of law and economics in property law, and the use of the tenant-homeowner distinction as a proxy for race. By unpacking these drivers of anti-tenancy, the Article exposes how deeply embedded the bias against renters is in our society. Anti-tenancy has been a largely unacknowledged and unquestioned default position in our legal system, but this Article makes clear that it is in fact the result of intentional law and policy choices to treat the interests of tenants as less than those of homeowners.
Finally, the Article offers a prescriptive roadmap for challenging the Anti-Tenancy Doctrine. Here, the Article advocates for both legislation and litigation to move the needle towards greater equity for tenants and similarly situated homeowners. Although in some contexts, the law’s disparate treatment may reflect relevant differences between owners and renters, the Article contends that using this distinction as the basis for unequal legal treatment has often caused real harm, particularly to communities that have long been segregated and excluded. The Article therefore argues that we must re-think the use of housing tenure status—whether someone is a homeowner or renter—as a determinant of legal rights and reconceptualize legal doctrines that improperly rely on this distinction.
Keywords: land use, property law, housing law, consumer law, affordable housing, tenants, renters, landlord-tenant, local government, inequality, social inequity, structural racism
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