12.06.2012

When the law is not what it seems

Last year I read a case in my property textbook that has stuck with me.  It illustrates the ways that seemingly generic laws are used to empower the powerful at the expense of the weak.

Suppose Landlord has a piece of property. Tenant A is currently in possession and will be moving out, and Tenant B has signed a lease to takeover the premises. If Tenant A does not move out, who should be responsible for taking the time and trouble to evict Tenant A? The Landlord, or Tenant B who has already signed a lease and has the legal rights to the use of the property?

On its face it is a strait forward question. There are pros and cons on both sides. We simply need to pick a rule and apply it consistently so that the market will know what to expect. For some, as long as the rules are followed, that is justice. Which rule we use is not a question of justice. This is not a particularly moral question.

There is a certain logic to requiring the person who now wants to use the land, and who has the legal right to the land, the lease holder, to get rid of the person who has overstayed their lease. But who is more than likely to know that Tenant A will not be moving out, and is in fact three months behind on their rent. Would Tenant B know anything about this? In fact, it is quite possible that the Landlord might rent the property to Tenant B so he could get paid knowing full well that Tenant A was not going anywhere without a fight. Meanwhile, the Landlord is trying to collect rent from both parties, and has shifted this problem to the unwitting Tenant B who had no idea what was going on prior to him leasing the land.


In response, the Landlord says, look, I had no idea either. I did not create this problem. And I don't want to use the land. If you, Tenant B, want to use the land, you get rid of him. Meanwhile, you signed a lease giving you the rights to this land, so pay up. Or suppose the Landlord takes pity on him, or more likely, the law requires that he not be required to pay until Tenant A is evicted. Still, if Tenant B has no place to live, or need to get his crops in the ground, or needs the office ASAP or his business will suffer, and if he is held responsible to evict Tenant A and cannot get out of the lease he signed...

But again, there are pros and cons both ways, right, it is not really a moral question, right? No. Wrong. This case was decided in early 1900's Virginia. This is Jim Crow country. Who owns land? White men. And who rents land. Black men. And who decided the case? A white judge. To whose advantage?  Of Course.


When Sharecropper A (tenant A), already impoverished because his father was a slave, catches a fever due to unsanitary drinking water, falls behind on his payments and is going to be evicted; plantation owner goes out and rents the land to Sharecropper B. When Sharecropper B comes to him and says, "wait a second, you rented land to me that is occupied." Plantation owner responds, "not my problem, pay up. If you want to actually use the land, you get rid of him." And when a judge is asked to decide this type of question for the first time in this particular state, (meaning that he does not have to comply with an already established precedent) he makes the toss-up question in favor of the sub-group that comes naturally to him.
 

Just to be clear, generally speaking this is no longer the law.  You do not need to worry about evicting a hold-out tenant the next time you rent an apartment.

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