PropertyProf Blog

Editor: Stephen Clowney
Univ. of Arkansas, Fayetteville

Saturday, December 8, 2012

"It's Easy to Tell Who's Going to Win in Eviction Court"

That's the conclusion of sociologist Matthew Desmond, reporting in the New York Times on his study of eviction court proceedings.

On one side of the room sit the tenants: men in work uniforms, mothers with children in secondhand coats, confused and crowded together on hard benches. On the other side, often in a set-aside space, are not the landlords but their lawyers: dark suits doing crossword puzzles and joking with the bailiff as they casually wait for their cases to be called.

Desmond reports that in many housing courts around the country, 90% of landlords are represented by counsel, and 90% of tenants are not.  What difference does it make?  As Desmond reports, a recent study of the Boston Bar Association showed that in a randomized sample of 129 cases, "two-thirds of tenants offered full representation avoided eviction, compared with one-third who were offered limited assistance like instructional clinics."  

As Desmond points out, the consequences of eviction can be at least as economically, socially, and psychologically devastating for the evictees as incarceration.  And, there is a benefit to providing representation to low-income tenants facing eviction for the rest of us: it's expensive, but providing shelter to those left homeless by eviction is actually more expensive.

And yet . . . there is something in us that revolts at the thought that someone behind in their rent should get a free lawyer.  I know that if I presented the idea to my students, some would balk.  Especially my older students who are landlords, who believe that the system is already stacked against them, not against their tenants.  It seems to me that there is a greater disconnect about the balance of legal power between landlords and tenants than in most other areas of law.  Both sides see the other as unfairly advantaged by the system.

I'd be curious to know whether other professors find the same about their students.


Mark A. Edwards



December 8, 2012 in Landlord-Tenant | Permalink | Comments (0) | TrackBack (0)

Thursday, March 1, 2012

Welcome Back, Tenant

The New York Times has a fun editorial by a landlord in Cleveland, Ohio:

At cocktail parties, I say, “I’m a landlord.” People hate that. Everybody hates landlords. That’s because nobody paid rent as a child. Renters think apartments should be free, like the wind, rain and baby food. I used to say, “I’m in real estate.” That sounded better; however, I spend a fair amount of time peering in apartment windows for cats, to charge pet fees. That probably doesn’t say “real estate” to most people.

Steve Clowney

March 1, 2012 in Landlord-Tenant | Permalink | Comments (0) | TrackBack (0)

Tuesday, December 6, 2011

The Number One Sign Your Land Use Controls Might be Too Restrictive. . .

. . . landlords can get away with charging a $40 application fee to anyone interested in renting an apartment.  In San Francisco, a very tight rental market has allowed landlords to milk thousands of dollars from desperate prospective tenants:

At a “nice” $3,500-per-month loft in the Mission, “80 people showed up for the open house,” said Ms. Lamas, 23, who recently began working at a tech company in SoMa. “And the landlord said to me that he’d gotten 250 applications.” The cost of applying was $40, so if the landlord wasn’t exaggerating, he grossed $10,000 in application fees.

Steve Clowney

December 6, 2011 in Landlord-Tenant | Permalink | Comments (1) | TrackBack (0)

Monday, November 21, 2011

Tips for New Landlords

The New York Times runs an article designed to help first-time landlords navigate their rights and obligations:

Five suggestions for beginning landlords.

KNOW YOUR RIGHTS Will your building allow subletting? In condos, generally the answer yes. For co-ops, well, it’s complicated.

LEGALESE Don’t make it up as you go along: standard lease and sublease forms are available online. It may be wise to line up a lawyer before problems develop.

MR. FIX-IT Compile a list of trusted tradespeople, and make sure they’ll come at all hours of the day or night.

PICKY, PICKY Friends, colleagues and acquaintances are usually a safer bet than strangers as tenants. A broker can take a lot of the emotion out of the screening process.

THE LITTLE THINGS Build a relationship with your tenants by picking up checks in person, or allowing them to manage minor repairs on their own.

Steve Clowney

November 21, 2011 in Landlord-Tenant | Permalink | Comments (1) | TrackBack (0)

Monday, November 7, 2011

Weird Landlord-Tenant Hypo of the Week

A reader asks the Chicago Tribune the following question:  My landlord comes into the house I'm renting to use the shower and groom himself.  I feel so violated that I stopped paying rent, fo which he immediately served me eviction papers.  What are my rights in this situation?  Was I justified in not paying rent?

The paper's real estate pro responds:

My experience tells me that it is not a good idea to withhold the rent — regardless of the reason. . . .  My suggestion: You should give your rent to a third party — usually your attorney — to hold in escrow. That shows good faith on your part. Clearly, however, your landlord has no right to interfere with your privacy and your right to peaceful enjoyment of the home. I hope you have a good attorney to defend you in the eviction procedure. I suspect you will prevail.

Steve Clowney

November 7, 2011 in Landlord-Tenant | Permalink | Comments (0) | TrackBack (0)

Tuesday, November 1, 2011

Must Tenants Allow Landlords to Install Equipment to Benefit the Building

If the landlord wants to install antenna equipment on your balcony to improve Wi-Fi reception, do you have to allow it?

The L.A. Times says no.

Steve Clowney

November 1, 2011 in Landlord-Tenant | Permalink | Comments (0) | TrackBack (0)

Tuesday, October 11, 2011

Steve Clowney is Complaining About His Landlord

How social media is changing the landlord-tenant relationship.

Steve Clowney

October 11, 2011 in Landlord-Tenant | Permalink | Comments (0) | TrackBack (0)

Tuesday, August 30, 2011

A Landlord's Letter to Her Tenants

Jodie Allen writes a handful of sarcastic notes to the anonymous every-tenant, explaining how to properly care for her property.

Steve Clowney

August 30, 2011 in Landlord-Tenant | Permalink | Comments (1) | TrackBack (0)

Tuesday, August 23, 2011

Nichols on the Federal Protecting Tenants at Foreclosure Act

Elan-nichols Elan Nichols (Michigan State) has posted Unanswered Questions Under the PTFA: Exploring the Extent of Tenant Protections in Foreclosed Properties (Journal of Affordable Housing) on SSRN.  Here's the abstract:

The somewhat new Federal Protecting Tenants at Foreclosure Act (the “PTFA”), as recently amended, still leaves many questions of interpretation in states with the foreclosure by advertisement process, and in states with laws related to issues on which the PTFA is silent. The PTFA is vague in places, and does not address certain issues raised by the foreclosure processes in certain states, where state law is not clearly preempted.

This article will examine how the PTFA, including the recent amendments and any recent judicial and advisory opinions, applies in states with the foreclosure by advertisement process (as opposed to judicial foreclosure). The article will use Michigan as a case study for this inquiry, briefly discussing other states with a similar process. In so doing, the article will discuss issues raised in these states concerning matters on which the PTFA’s terms are vague or wholly silent.

To that end, this article picks up where the article, “Interpreting the Protecting Tenants at Foreclosure Act of 2009,” 19 J. of Affordable Housing & Community Dev Law 205 (Winter, 2010), by Allyson Gold, left off. Of particular assistance will be the recent statutory amendments, any relevant case law, interpretive statements from the Department of Housing and Urban Development, and the “working interpretation” adopted by legal services providers and others agencies dealing with the foreclosure crisis. Consequently, this article will conclude with a proposal for a reasonably fair interpretation of the PTFA in states with foreclosure by advertisement and in states where the PTFA is not expressly preempted but still leaves questions.

Steve Clowney

August 23, 2011 in Home and Housing, Landlord-Tenant, Recent Scholarship | Permalink | Comments (0) | TrackBack (0)

Friday, July 22, 2011

From Apartments to Vacation Rentals

Property owners in San Francisco are converting large numbers of rental apartments into short-term quarters for tourists.  Some are blaming the city's rent control laws for this "hotelization:"

Ms. Kelley predicted that more units would be turned into vacation rentals as landlords sought to avoid rent-control laws available to long-term tenants.

“The city has made its bed with restrictive rent-control laws,” she said, “but with a vacation rental you can avoid that.”

Steve Clowney

July 22, 2011 in Home and Housing, Landlord-Tenant | Permalink | Comments (1) | TrackBack (0)

Wednesday, July 13, 2011

Marion Barry's Housing Shenanigans

For those that haven't kept up with the career of Marion Barry, you'll be happy to hear that the erstwhile crack smoking mayor of D.C. is back on the city council.  And not only is he back, he's proposing aggressively stupid legislation. Specifically, Barry plans to introduce a bill that would ban the construction of all new apartment buildings in his Ward (Here's a copy of the Bill's text).  Why???  Barry thinks this plan will encourage home-ownership and the renovation of the area's dilapidated housing. "The American dream is to own a home. And black people have not gotten the American dream as much as they need to," he says. "Somebody can rent for 20 years, and has no equity in their unit at all."

It's hard to see how this bill helps the people of Ward 8 in any way.  If anything D.C. in general, and Ward 8 in particular, needs denser & more affordable housing.  Right now, DC's population is exploding.  So any proposal to artificially limit the supply of available rentals seems likely to push (poor) long-term residents out of the neighborhood.  It's also tough to comprehend how this land use measure would help the folks of Ward 8 acquire the downpayments and credit history that are the normal barriers to home ownership.  

Perhaps the really interesting question here isn't about the policy but rather, why do people in D.C. keep voting for Barry? 

Steve Clowney

July 13, 2011 in Home and Housing, Land Use, Landlord-Tenant, Law Reform | Permalink | Comments (0) | TrackBack (0)

Friday, May 27, 2011

Blasi on Tax Benefits in Leasing Transactions

Ron_Blasi Ronald Blasi (Georgia State) has posted Electing Tax Benefits in Leasing Transactions (Daily Tax Report) on SSRN.  Here's the abstract:

This article recommends allowing a lessor and a lessee to decide between themselves which party will be entitled to the tax benefit associated with the ownership of the leased property. It describes why the current linkage of tax benefits to property ownership is economically inefficient and disadvantageous to the parties and to the economy as a whole. Existing law diminishes the intended effect of tax incentive legislation, reduces a firm’s cash flow and reported earnings, distorts competition and decision making, and inhibits investment in efficient business assets. The proposed election addresses these shortcomings, while not violating anti-avoidance tenets of taxation.

Steve Clowney


May 27, 2011 in Landlord-Tenant, Recent Scholarship | Permalink | Comments (0) | TrackBack (0)

Tuesday, May 24, 2011

A Landlord at the Door

Wednesday, May 4, 2011

Rose on The Due Process Rights of Tenants in Mortgage Foreclosure

Rose Henry Rose (Loyola Chicago) has posted The Due Process Rights of Residential Tenants in Mortgage Foreclosure Cases (New Mexico Law Review) on SSRN.  Here's the abstract:

The purpose of this article is to explore the rights of tenants who reside in buildings undergoing foreclosure to receive notice and an opportunity to be heard when foreclosures threaten to terminate their tenancies. The federal Protecting Tenants at Foreclosure Act of 2009 (PTFA) will significantly reduce the incidence of residential tenancies being terminated as a result of foreclosure. However, PTFA offers weak procedural protections if the mortgagee or the person who acquires ownership pursuant to a foreclosure seeks to terminate the tenancies of residents in the foreclosed building. In those states that require judicial foreclosures, the Due Process Clause of the Fourteenth Amendment to the United States Constitution should afford tenants faced with termination of their tenancies due to foreclosure with notice and an opportunity to be heard before their tenancies are terminated. In states that allow non-judicial foreclosures, Due Process protections are not likely to be available to tenants due to a lack of state action in the foreclosure process. PTFA should be amended to afford all tenants, including those who reside in non-judicial foreclosure states, with notice and an opportunity to be heard before their tenancies are terminated pursuant to a foreclosure.

Steve Clowney

May 4, 2011 in Landlord-Tenant, Mortgage Crisis, Real Estate Transactions, Recent Scholarship | Permalink | Comments (1) | TrackBack (0)

Thursday, April 28, 2011

Property Issues and the Royal Wedding

Coat A childhood full of playing Dungeons & Dragons and trading Magic: The Gathering cards has left me far too interested in the Royal Wedding (it is, sadly, the closest I'll ever get to wearing chain mail or wielding a broad axe).  Luckily, there's at least a little overlap between my scholarly interests and the pageantry of Will and Kate's nuptuials.  As far as I can tell, the wedding raises at least three property issues:

1.  The shortage of hotels has inspired many Londoners to rent out their homes and become temporary landlords.  One expert estimates that London homeowners stand to take in an estimated $170 million in rents during this week.  Prices range from $50 a night for a single room in a private home to more than $6,000 a week to rent an entire house in central London.

2.  Royal watchers are gossiping about whether Kate and Will have signed a prenuptial agreement.  Family Law Solicitor Louise Liu speculates that even though William is worth $45 million, it's unlikely he's been encouraged to get a prenup with Kate. According to Liu, while prenups are routine in the U.S., they are persuasive but not legally binding in England.

3. What titles will the Queen bestow on William and Kate?  All titles are gifts from the monarch, so it is the Queen's perogative to choose which one to grant to her grandson and his new wife.  As the Telegraph explains, "Tradition dictates that royal men receive a title on their wedding - and often more than one."  Leading contenders include the Duke of Cambridge, the Duke of Sussex, and the Duke of Clarence.  A couple of Duchies produce serious income.  Prince Charles' Duchy of Cornwall estate, which stretches over 135,000 acres in the south-west of England, has an estimated value of $1 billion (647 million pounds) and produces $25 million a year in profits.  One final note on titles; according to tradition Kate would not become HRH Princess Catherine of Wales because she is not a Princess in her own right. Instead, she becomes HRH Princess William of Wales.

If you're looking for me tomorrow, I'll be the guy having tea and crumpets, glued to the TV.

Steve Clowney

April 28, 2011 in Gifts, Landlord-Tenant, Marital Property, Miscellaneous, Recording and Title Issues | Permalink | Comments (2) | TrackBack (0)

Friday, April 8, 2011

Renting While Deaf

This is troubling:

In a year-long test conducted by the Fair Housing Partnership of Greater Pittsburgh, researchers found 28 percent of landlords contacted by deaf people either hung up the phone, gave false information or used some other illegal means to deny the deaf person a place to live.

Test reviewers found 11 violations were so severe they filed complaints against the landlords with the U.S. Department of Housing and Urban Development, and the Pennsylvania Human Relations Commission. Seven of those cases have been settled and those landlords have undergone training in fair housing law. The other cases are pending.

Steve Clowney

April 8, 2011 in Home and Housing, Landlord-Tenant | Permalink | Comments (0) | TrackBack (0)

Wednesday, March 30, 2011

Iglesias on the FHA and Private Residential Occupancy Standards

Tim Iglesias (U. San Francisco) has posted Moving Beyond the Two-Person-Per-Bedroom: Revitalizing Application of the Federal Fair Housing Act to Private Residential Occupancy Standards on SSRN.  Here's the abstract:

New empirical evidence demonstrates that the common residential occupancy standard of two-persons-per-bedroom substantially limits the housing choices of many thousands of families, especially Latinos, Asians and extended families. The federal Fair Housing Act makes overly restrictive policies illegal, but the enforcement practices of the U.S. Department of Housing and Urban Development (HUD) have enabled the two-persons-per-bedroom standard to become de facto law. This article urges HUD to use its regulatory authority to remedy the situation and offers several solutions. And, if HUD fails to act, it encourages private plaintiffs to challenge the two-persons-per-bedroom standard and provides guidance to courts in deciding these cases.

Ben Barros

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March 30, 2011 in Home and Housing, Landlord-Tenant, Recent Scholarship | Permalink | Comments (0) | TrackBack (0)

Friday, March 11, 2011

$99/week Apartment on Upper West Side

As a former New Yorker, I tend to read stories like this with a mix of envy and disgust at the bizarre quirks in NYC landlord-tenant law.

On the other hand, as a current resident of central PA, I'm glad that I live somewhere with a better price per square foot.  There aren't that many places where that price for that place would be a good deal.

Ben Barros

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March 11, 2011 in Landlord-Tenant | Permalink | Comments (1) | TrackBack (0)

Tuesday, January 18, 2011

Anyone Need a Leaseholds Exam Question?

Cause I gotta beauty for ya, right here.

The New York Times reports that real estate developers have made such a visually appealing $80 million alteration to the facade and entrance of 112 West 34th Street in Manhattan that they are candidates for a prestigious development award.

The problem: they are tenants, not owners of the building, and the 1963 lease that the then-owners and then-tenants signed (both current owners and tenants are assignees) provides that the tenants must get prior written approval from the owner before making structural changes worth more than $100,000.  As a result, the owner wants the lease terminated and the tenants out.  The lease isn't supposed to expire until 2077.

Why on earth would a landlord object to a tenant making -- at its own expense -- $80 million dollars worth of awarding-winning improvements to a property, you ask?

Because the lease provides that the annual rent for the property is $840,000 per year.  This, for a 26-story building that sits across from Macy's.  This, for a building the tenants lease out to office and retail tenants for many, many times that sum.

So are the owners being unfairly opportunistic in trying to terminate a lease so they can capture the building's increase in market value?  Or are the tenants being hypocritical in arguing that a literal reading of the lease applies to the rent, but not the alterations clause?  How will a court likely decide the issue and why, or is it more likely that a market solution will be found, and how?

Life doesn't throw perfect hypotheticals at us very often.  Take it!

Mark A. Edwards

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January 18, 2011 in Landlord-Tenant, Teaching | Permalink | Comments (1) | TrackBack (0)

Wednesday, September 22, 2010

A Squatter in the Empire State Building

There is a short article in yesterday's New York Times that provides an interesting landlord/tenant issue for students to unravel.

Landlord leased an office suite in the Empire State Building to a mortgage broker.  Mortgage broker (apparently contrary to the terms of the lease) sub-leased a portion of the space to a law firm.  Law firm, through no written agreement, arranged for a solo practitioner to use "an alcove."  The attorney had keys to the suite and a building-issued security ID.

Mortgage broker defaulted on the lease and landlord pursued eviction proceedings.  Everyone but the solo practitioner left.  It apparently took the landlord seven months to officially notice that the solo practitioner was still there.

So question #1 would be to try to characterize the legal status of the solo practitioner both before and after the eviction of the mortgage broker. 

But the other interesting aspect of the article is that the lawyer didn't think he did anything wrong. 

Mr. Perlman said he did not consider himself a squatter or law-breaker. Yet he had no sympathy for the building’s management, which he complained had been trying to push out small tenants to make way for larger tenants. The mortgage broker was one of several small tenants that sued the Empire State Building over their electricity bills. “I didn’t think of it as a scam,” Mr. Perlman said. “If I’m guilty of anything, I’m guilty of procrastinating.”

Perhaps I represented landlords for too long, but I find it striking that an attorney can think that he can take something of value (possession of space in the Empire State Building) for seven months without paying the owner a dime and then think that he has done nothing wrong. 


Tanya Marsh

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September 22, 2010 in Landlord-Tenant | Permalink | Comments (3) | TrackBack (0)