Change In The American1 Law Of Landlord And Tenant

AuthorCharles Donahue
DOIhttp://doi.org/10.1111/j.1468-2230.1974.tb02380.x
Publication Date01 May 1974
CHANGE IN THE AMERICAN'
LAW
OF
LANDLORD AND TENANT
THE last ten years have witnessed an extraordinary ferment in
landlord-tenant law in the United States. Changes have been made
both by the courts and the legislatures, and the process
of
change
has by no means come to rest. The changes have been greatest
in the law of residential tenancies and within that broad field, parti-
cularly in the law concerning the physical condition of leased pre-
mises. That law will provide the principal focus of attention of
this paper, but a few prefatory remarks broadly comparing land-
lord-tenant law and institutions in England and America may be
helpful in explaining why the changes have occurred in America
in the way they have.
First, America, in marked contrast to the united Kingdom, had,
until recently, relatively little legislation on the topic
of
landlord
and tenant.
No
American jurisdiction has any legislation remotely
approaching the scope of the Law of Property Act,2 and we have
little which corresponds to the Rent Acts
or
to the various Land-
lord and Tenant and Housing Acts.' The Second World War
legislation designed to control the price of rented housing and to
give tenants some measure of security
of
tenure was repealed in
almost every American jurisdiction shortly after the war.s
The reasons for this comparative lack of legislative activity in
the landlord-tcnant field are complex but are probably to be found
in the differences between our political systems. In America, the
Federal legislature has little to do with the private law of landlord
and tenant. The malapportionment of state legislative districts
gave state legislatures a conservative cast, and they generally had
little concern with urban problems. Further, the American Federal
constitutional system of checks and balances,
a
system which is
mirrored in most of the states, has meant that it is extraordinarily
difficult to get any legislation passed unless a great deal of political
pressure can be brought to bear. Landlords as a group were quite
happy with the state of the law as it was, and tenants as a group
lacked the organisation necessary to put pressure on the legislatures.
Landlord-tenant law until recently was also neglected by the
1
The title
of
this paper may be deceptive. It
is
not about the law
of
two
continents but almost exclusively about that
of
the United States. Convenience
of
expresnion and,
I
fear,
a
certain arrogance which is
all
too
typical
of
my
country dictate that,
at
times,
I
refer
to the United
States
a8
"
America."
2
15
Qeo.
5.
c.
20.
3
Mostly cdniokated in the Rent Act
1968,
c.
28;
see
Megarry,
The
Rent
Acts
4
e.g.
Landlord and Tenant Act
(2
&
3
Eliz.
2,
c.
60);
Housing Act
1969
(c.
33).
5
Vestkges
of
the World War
I1
rent control legislation remain
in
New
York.
(10th
ed.
1967,
Supp.
1970).
See
2
R.
Powell,
Real
PToperty
5
232
(P.
Rohan
ed.
1971).
242
MAY
1974
CHANGE IN AMERICAN LANDLORD AND TENANT
LAW
248
American courts. Most leases, particularly residential leases, in-
volve relatively small amounts of money, and it is rarely worth the
parties' while to appeal against lower court judgment to a court
which can render an opinion which will appear in the reports. Thus,
most of the reported twentieth century landlord-tenant cases in-
volved commercial leases drafted by counsel for parties of approxi-
mately equal bargaining power. These cases rarely concerned the
basic principles of landlord-tenant law, but rather offered refine-
ments of the law
of
the interpretation of written instruments.
This
lack of legislation and recent judicial opinions meant that
a major characteristic of American landlord-tenant law was its
antiquity. is still good
law in many American states;
it
was abolished by legislation in
this country in
1859.7
The rule in
Paradine
v.
Jane,8
that the
total destruction of leased premises without fault by the tenant
does not, in the absence of an express agreement to the contrary,
relieve the tenant of his obligation to pay rent, has suffered set-
backs in the hands of a few state legislatures but is still frequently
applied by the courts in the absence of legi~lation.~ Until very
recently it was settled doctrine that, again in the absence of express
provisions to the contrary, most lease covenants are independent.1°
This doctrine of independence has its origins in a time when the
rule of
Nichols
v.
Raynbred
"-that
no
covenants are dependent-
prevailed. Finally, in the area of remedies, it is probably still the
law in most American jurisdictions that rent may not be appor-
tioned (a doctrine which was considerably modified here by legis-
lation in
1870
12)
and also that the landlord is under no obligation
to mitigate damages. The no-apportionment doctrine can lead to
harsh results when the tenant holds over after the expiration of the
lease term, and the no-mitigation doctrine can lead to similar, harsh
results when the tenant abandons the premises before the expiration
of the term.13
A
second major difference between
our
two countries in the
institutional setting of landlord-tenant law is that in the United
States, in marked contrast to the United Kingdom, residential
housing, and hence rented housing,
is
almost exclusively a matter
For example, the rule in
Durnpor's
Case
6
7
a
8
10
12
18
(1603) 4
Coke
119b;
76
E.R.
1110.
For
the
status
of
the rule in America, see
1
American Law
of
Property
(hereinafter cited as
"
A.L.P.")
5
3.58
(A.
J.
Casner ed.
1952).
Law
of
Property Amendment Act
1859 (22
&
23
Vict. c.
35),
now replaced
by
the
Law
of
Property Act
1925,
s.
143.
(1647)
Aleyn
2G; 82
E.R.
897.
See
1
A.L.P.
$5
3.103, 3.75,
for
the
common law rule.
For
legislative changes.
see
e.g.
Minn. Stat.
5
504.05 (1969);
N.Y. Real Prop. Law
5
227
(McKinney
1968).
-
.-
See
2.g.
Brown's
Admr.
v.
Bragg, 22
Ind.
122
(1864):
Stewart
v.
Child,? CO..
86
N.J.L.
648; 92
A.
892
(1914).
1*
(1615)
Hobart
88:
80
E.R.
238.
Apportionment Act
1870
(33
&
34
Vict. c.
35).
See
e.g. A.
II.
Petting
Mfg.
JeweZry
Co.
V.
Waltz,
160
Md.
50; 158
A.
434
(1930)
(holdover):
Gruman
V.
Investors Diversified Seraices, Inc.,
247
Minn.
502; 78 N.W.2d 377 (1956)
(abandonment).

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