What is the core of current American residential landlord–tenant law, and how was that core formed? This Essay argues that in the past few decades courts have settled on a two-pronged landlord–tenant law regime. The law provides tenants with assurances respecting the quality of the units they rent. It does not, conversely, provide them with any assurances respecting the price of the rental units—and, therefore, respecting their ability to remain in those units.
The first component of the regime was established through the well-known judicial creation and endorsement of the warranty of habitability. The second component’s entrenchment is often attributed to legislative reforms that rejected rent control. In fact, however, courts played a major role in instating this component as well. Through a heretofore largely ignored resort to multiple local government law doctrines, courts have consistently rejected municipal measures aimed at regulating the pricing of rental units.
This prevalent distinction courts have instituted between quality controls (which they require) and price controls (which they reject) cannot be justified in traditional economic terms. The academic literature does not support the contention that one measure is more effective in aiding poor tenants than the other. The current regime can hardly be viewed, therefore, as geared toward redistribution and fairness. Rather, this Essay argues, the distinction between quality and price controls that characterizes American landlord–tenant law serves to operationalize a certain view of the meaning of tenancy in modern times. Courts engaged in what they perceived as a traditional common law exercise of updating the contours of the landlord–tenant legal relationship. In doing so, they were inspired by, and then implemented, an image of the new urban tenant as requiring—and expecting—certain amenities and rights. Importantly, this image of the modern tenant was general and class neutral. It thus lent support to measures benefitting—at least theoretically—all tenants, but not to those explicitly, and exclusively, focused on poor tenants.