Contractarian Risks for Tenant Rights in a Time of Constitutional Property Formalism

Abstract As European scholars contemplate the right to housing through a contractual lens, a comparative perspective on housing rights and the property/contract interface in the leasing context may be instructive. Lessons may be gleaned from the United States Supreme Court’s current efforts to reexamine the constitutional dimensions of property, as part of a project of revisiting long-standing elements of the regulation of the landlord-tenant relationship, including rent regulation and other tenant protections. One conceptual underpinning to calls for the Supreme Court to curtail the state’s ability to protect tenants is a conception of the leasehold as grounded as much in contract as it is in property, a legacy of the “revolution” in American landlord-tenant law in the 1960s and 1970s. While it would be possible to justify tenant protections in contractual-regulatory terms – from a consumer-protection perspective – the Supreme Court’s focus on rental housing as a property right for owners and a contractual right for tenants threatens to unbalance the authority of the state. Re-centering the common-law property foundations of the tenant interest in a leasehold would not necessarily move a skeptical Court, and the contractual-remedial infrastructure of the leasehold is a legal innovation still worth celebrating a half-century after its rise. But doing so could provide an alternative grounding for understanding the limitations of a seemingly absolutist turn in constitutional property in the United States that has the potential to spark a second revolution in rental housing.