Recent Developments In The Law Of Landlord And Tenant: The American Experience*
| Author | David Tiplady |
| Date | 01 March 1981 |
| DOI | http://doi.org/10.1111/j.1468-2230.1981.tb02742.x |
| Published date | 01 March 1981 |
THE
MODERN
LAW
REVIEW
Volume
44
March
1981
No.
2
RECENT DEVELOPMENTS IN
THE
LAW
OF
LANDLORD AND TENANT:
THE
AMERICAN EXPERIENCE
*
THE
extent of protection from eviction, and the standard of habit-
ability guaranteed by English law to the residential, non-owning
occupant depend upon the legal category to which that occupant
is
assigned. It is the contention of this paper that English law is
over-refined and unnecessarily complex, utilising concepts and dis-
tinctions which are often inappropriate or irrelevant, and therefore
only fortuitously responsive
to
the actual issues which a problem of
eviction
or
of habitability may present.’ The essentially straight-
forward regime currently being developed in certain of the United
States should be studied as the prototype of an alternative approach.
This body of law, while taking
a
far simpler form than its English
counterpart, is potentially more alert to the practical issues of a
particular case and is more accessible to those most likely to need
it.?
THE
ROAD
TO
SECURITY
OF
TENURE:
Issues relating to eviction represent, in essence, a conflict between
a
landlord’s interest in his property and an occupant’s interest in
THE
DOCTRINE
OF
RETALIATORY
EVICTION
*
I
wish to express my gratitude
to
Gray’s Inn for the Churchill Award, which in
part financed the research on which this paper is based.
1
In
Shaw
v.
Groom
[I9701
2
Q.B.
504
a
semi-literate landlord sued a semi-literate
tenant. Sachs L.J. commented at p.
519:
“The chances of either of them really
understanding the mammoth rent legislation
is
[sic]
minimal. There must be literally
thousands of tenancies in London
of
a
similar nature in which the landlord and
tenant are no less handicapped.” What does the figure become when projected for
the whole country?
2
Law reform by itself will not solve the problems
of
slum housing: the law is
simply a tool
or
a weapon. But
if
the law is
to
contribute to the alldation
of
housing stress it must exist in
a
form which those in need can comprehend, and
there must be ready access to justice. In addition, there must be community
involvement in the whole process
:
the traditional lawyer-client relationship, in the
context
of
a
slum housing problem, is often simply
a
reinforcement of the sense
of
poverty from which the problem sprang. Without involvement and equality even
the outlay
of
vast sums
of
money
is
no answer-as
Liverpool
City
Council
v.
Itwin
demonstrates.
A
start could be made by introducing special, low-key courts, open in
the evenings and weekends, and in which no professional representation was allowed;
and by extending neighbourhood law centres-many of which are, in this writer’s
experience, little better than first aid stations.
129
VOL.
44
(2)
1
130
THE
MODERN
LAW
REVIEW
[Vol.
44
his home. The law may take three approaches to such issues: first,
always to prefer the landlord's interest; or, secondly, always to
prefer the occupant's; or, thirdly,
to
choose between them according
to selected circumstances of the particular case. English law adopts
the third approach, resolving the conflict of interests in accordance
with the complex rubric
of
the Rent and Housing Acts or
of
the com-
mon
law. Thus the protected tenant, the protected shorthold tenant,
the secure tenant, the tenant who shares or receives board or
attendance, and the tenant of a resident landlord each attracts a
different degree of protection, as does the licensee who has
a
so-
called restricted contract, the licensee without this often-fortuitous
benefit, and the squatter. Categories come and
go,
and the degree
of protection within categories changes, with almost schizophrenic
frequency. This occurs even though the situation of each occupant
is, in at least one important regard, the same: they have all made
their homes in property owned by someone else.3
Why, then, are the distinctions drawn?
In
some instances the law
demurs to the fact that the occupant has made his home there, for
he was not justified in
so
doing.
In
the case of the squatter it is
relatively easy to see why this attitude should prevail: according
to Lord Denning M.R.4 a squatter is
"
one who, without any colour
of right, enters an unoccupied house or land, intending to stay there
as long as he can..
.
.,,
Even the excuse of necessity must fail for,
"
if homelessness were once admitted as a defence to trespass,
no-
one's house could be safe..
. .
So
the courts must, for the sake o'f
law and order, take a firm stand. They must refuse to admit the
plea of necessity to the hungry and the homeless.
.
.
.,,
The best a
squatter can hope for is to be evicted by the procedures of the law
rather than the agents of self-help.6
A
similar theoretical justifica-
tion can perhaps be seen behind the now-defunct
"
furnished
tenancy
"
exception to Rent Act protection: one does not, it might
be said, make one's home in premises furnished with another's
3
This list is given by way
of
example and is not intended to be complete.
Further categories-sub-tenants and tenants' families, for instance-merely add to
the complexity. But at least one
of
the listed distinctions is fundamental in English
law
:
that between tenant and licensee. The division supposedly reflects the intention
of the parties, but very often in practice occurs fortuitously, or
is
manipulated by
the landlord in order to avoid the Rent Acts. (Such manipulation is not contrary
to public policy: see
Somma
v.
Hazelhurst
below.) Whether
or
not the landlord
succeeds in doing this, however, seems itself often to be a matter
of
chance. Courts
will analyse agreements in detail to see if
a
licence or tenancy is created, and each
case appears
to
turn upon its own particular, and often complex, circumstances.
Recent decisions agitate the already difficult distinction still further, leaving both
landlords and occupants in a situation
of
unjustifiable uncertainty. See
Somma
v.
Hazelhurst
[1978]
1
W.L.R.
1014
(C.A.) and compare
Aldringfon Garages
v.
Fielder
(1979) 37
P.
&
C.R.
461
(C.A.) and
Demuren
v.
Seal Estates Ltd.
(unreported
(C.A.)
).
The distinction should be abolished.
4
In
McPhail
V.
Persons Unknown
[1973]
Ch.
447, 453
(C.A.).
5
See
London Borough
of
Southwark
V.
Williams
[1971]
Ch.
734
(C.A.) and the
6
See the Criminal Law Act
1977,
s.
6.
Housing (Homeless Persons) Act
1977.
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