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A Short History of Landlord Tenant Law

Egypt and Mesopotamia

Sharecropping leasing was common in ancient Egypt and Mesopotamia. 

Code of Hammurabi, 1760 BC, Ancient Babylon, featured sharecropping lease laws:
–        Stipulated to equal share of lost revenue due to natural disaster.  Some pre-Hammurabi leases are known to have made the tenant strictly liable for losses.
–        If a tenant failed to cultivate field, liable to landlord for amount of grain cultivated by adjacent landowners in same year
–        The property owner had the right to reenter for breach of contract
Early Mesopotamian leases were very brief which suggests:
–        Leases, if written at all, were adjudicated by custom rather than formal court system
–        Scribes were expensive

Roman Leases
–        In theory the tenant could be excused for unforeseeable events.
–        In practice under Roman law tenants could rarely escape lease obligations.
–        Roman law resisted the establishment of situations in which a lease could be cancelled and instead sought the minimum disturbance to the contractual agreement of the lease.
–        Thus “infestation of a grain by birds or weeds” and “the theft of a passing army” are deemed foreseeable events in the Code of Justinian.
–        Pliny the Younger laments in extant letters of the debt load of tenants who were in arrears for such “foreseeable” events.  He eventually abandoned cash payments in favor of a sharecropping arrangement.

Feudal England and Early Evolution of Modern Leasing

-Prior to the 14th century non-aristocrats were serfs with virtually no rights.
The tenant had a right of specific performance against the landlord but no legal remedy against third party invasions of the leasehold.
The landlord could alienate the property at any time free of the tenancy.
The tenancy did not survive the landlord’s death.
-Black Death caused a shortage of labor, landowners were forced to grant rights to attract and retain labor. Initially land owners (lords) did intended the feudal leases to be short-term, temporary expediencies until their economic hegemony could be reestablished. This never occurred and instead gradually the length of leases and rights of tenants expanded.
-During the reign of Edward II (1307-1327) Tenants were granted the right to bring an action “de ejectione firmae” [ejectment] against all disturbers.
-This has been said to be the “point at which the modern concept of leases…was crystallized”. Friedman, Milton Friedman on Leases §1:1.3 at 1-11 (Fifth Ed. 2008).

The Industrial Revolution

Leases were viewed as a conveyance of interest in land. Covenants were independent, not bi-lateral dependant covenant as with contracts.
Breach by the tenant did not allow the landlord to recover possession. Breach by the landlord did not relieve obligation to pay rent.
“[T]he distinguishing feature between lease and contract” – Friedman.
Western Leasing Before and During the Industrial Revolution
–        Tenants were more often urban dwellers, rather than agrarian workers tied to the land upon which they dwelled.
Courts and legislatures sought to protect landlords interests in property in the face of increased mobility and housing vacancy in the growing urban environment.
Modern building codes were enacted.
Courts became uneasy with the common law rule of caveat emptor and began to analyze leases as contracts for services – the provision of safe housing in exchange for rent – rather the strictly as a conveyances of right in an estate.
–         New York – Landlord-tenant law evolved particularly quickly
1820 – summary eviction proceeding statute
1826 – Doctrine of constructive eviction established. Dyett v. Pendleto, 8 Cow. 727 (N.Y. Supp. 1826). Physical eviction not pre-condition to avoidance of rent obligation.
1863 – New York Court of Appeals held that destruction of leased premises at no fault of tenant nullified the obligation to pay rent.
1890 – The doctrine was expanded to include constructive eviction – Graves v. Berdan, 26 N.Y> 498 (1863).
1901 – stringent housing code passed.
1942 – rent control laws enacted in reaction to housing shortage upon return of was veterans. Allowed abatement of rent for code violations or curtailment of essential services.

Present Day
Landlord-tenant law is governed by general contract principles as well as a federal and state and local law and regulations.
Residential Leases
–        Federal – Fair Housing Act, Lead Based Paint Disclosures
–        Residential Landlord-Tenant Act
–        Local building codes, just cause eviction ordinances, rent control ordinances
–        All mandate implied, non-waivable terms and/or prohibit or render unenforceable certain terms in leases
–         “Regulated public utility” – Friedman
Commercial Leases
–        Generally jurisdictions have not made the same wholesale substitution of traditional property rights notions.
–        Nevertheless, discernible movement in viewing all leases as both a conveyance and a contract.