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Excerpted From: Sarah Schindler and Kellen Zale, How the Law Fails Tenants (And Not Just During a Pandemic), 68 UCLA Law Review Discourse 146 (2020) (38 Footnotes)(Full Document)

SchindlerandzaleAs states throughout the country have enacted orders to “shelter in place” and “stay healthy at home” in response to the COVID-19 pandemic, many people--both members of the general public and decisionmakers--have turned their attention to housing insecurity. Legislators on both sides of the aisle are contemplating how to protect public health by keeping people in their homes, even if they can no longer afford their monthly mortgage or rent payments.

Yet the legal approaches that have been implemented to achieve that goal differ wildly, both in structure and likely effectiveness. Homeowners have seen an easy-to-access and robust federal response, while renters have been largely left to rely on their landlord's goodwill and limited protections in an ad hoc assortment of federal, state, and local laws. While this disparity is stark and disconcerting, it is unfortunately not unique to our current crisis. Our research suggests that the law has long bestowed favored treatment upon homeowners at the expense of renters. The response to this pandemic is just another example in a long line of laws and policies that treat tenants as less important, and less deserving of protections, than homeowners.

Part I of this Essay describes various legal protections that have emerged during the COVID-19 pandemic to address housing insecurity and unpacks how these measures offer unequal protections to renters as compared to property owners.

Part II situates the current response within our broader framework, which recognizes that a wide variety of legal doctrines, governmental programs, and public policies favor property owners and disfavor tenants. Historic distinctions between freehold and leasehold estates, a central feature of the common law system, have resulted in modern laws and policies that not only lack a doctrinal justification, but which also result in harmful, disparate treatment for poor people and people of color.

The Essay concludes by offering some suggestions for reframing the problem and bringing greater parity to the law's treatment of renters and owners.

[. . .]

For too long, the cumulative, systemic effects of legal doctrines that treat tenants as having second-class status have gone unexamined. Yet the impacts have been profound: The disparate treatment of renters under the law has widened the wealth gap, worsened the affordable housing crisis, and subsidized homeownership by shifting costs to renters. The COVID-19 pandemic has amplified these disparities even further, just as it is amplifying preexisting disparities along familiar fault lines in other contexts, from education to health to food insecurity.

But by exposing these disparities, this pandemic also gives us the opportunity to reexamine our assumptions and consider how the law could be reformed so that renters are treated more equitably. Short-term fixes like a single $1200 check may help some renters with this month's rent, but what about next month? We must seriously consider making significant investments in safety net infrastructure: universal basic income; expanding the federal housing voucher program to all renters who need housing; and thinking about housing as a fundamental human right, rather than an investment vehicle or for-profit enterprise.

It also means reassessing the role of federal law: Unlike most other developed countries, the United States has very little in the way of a nationwide land law or housing policies. While states and local governments often can serve as valuable laboratories of democracy, during a nationwide crisis, a nationwide response is needed. For example, Representative Ilhan Omar's proposed Rent and Mortgage Cancellation Act would cancel both rent and mortgage payments for the duration of the pandemic and provide landlords and mortgage lenders access to an emergency fund. There is also potential for even greater federal leadership on land use policy and landlord-tenant law--through federal zoning guidelines, rent control, or a restructuring of the legal conception of housing more broadly.

Although the COVID-19 pandemic continues to be a time of pain and uncertainty for many, we are also learning to appreciate the value of all types of work, and the need for all people to have a secure place in which to shelter. Now that the current crisis is illuminating the large number of people who are directly affected by the deep systemic inequities in housing and landlord-tenant relationships, it is time for the law to respond and evolve.

Sarah Schindler is the Associate Dean for Research and the Edward S. Godfrey Professor of Law at the University of Maine School of Law.

Kellen Zale is an Associate Professor at the University of Houston Law Center.

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