Thursday, March 10, 2011

Kehoe's Bill Infringes Upon Landlord Rights

Coming soon to an apartment building near you!
Sen. Christine Kehoe (D-San Diego) proposed a bill prohibiting California landlords from preventing their tenants from posting political signs on their windows. The Legislature should reject this proposal because it improperly infringes landlords' rights to regulate the outward appearance of their properties.

Sen. Kehoe's bill—SB 337—would add the following provision to the California Civil Code:

1940.4. (a) A landlord shall not prohibit a tenant from posting
or displaying noncommercial signs, posters, flags, or banners on or
within any portion of a dwelling unit leased by the tenant, unless
the posting or display would violate a local, state, or federal law.
(b) The Legislature finds and declares that this section is
declaratory of existing law.

(emphasis added).

First of all, the italicized language makes it clear that this bill applies to far more than simple political signs. This would allow tenants to post eyesores that have absolutely nothing to do with politics, and could be as obscene as existing law permits. It is fine, of course, for homeowners to post whatever they wish on their windows; they enjoy dominion over their property, and should be allowed to make whatever use of their homes they deem fit.

Renters, however, do not own the homes in which they reside—their landlords obviously do. Property ownership comes at great cost: down payments, mortgages, property taxes, property insurance, maintenance, and (for rental property) tenant relations. The end result of this cost is the owner's right to look at his property and say, "That's mine."

SB 337 infringes upon this notion by stripping the owner's dominion of the appearance of his property. We lawyers are taught to view property not as a lump sum, but as a "bundle of sticks." For example, landlords initially possess all of their properties' "sticks," but then they transfer some of those sticks to their tenants. The landlord may own the tenant's rental unit, but the landlord has also granted the tenant specific interests in the unit, particularly involving control over the unit. That is why landlords do not object to tenants using their units however they deem fit, generally so long as they do not cause damage or disturb their neighbors.

However, tenants' property interests are generally limited to the confines of their units; existing law allows landlords to retain control over the appearance of their buildings. SB 337, however, will deprive landlords of this control. It will essentially transfer part of landlords' property interests to their tenants, without compensation. This creates a catch-22 for landlords: they may attempt to recoup this loss by charging additional rent, but tenant-created eyesores makes the property less appealing and depresses rent levels.

Furthermore, I am not really going into the notion of free speech because the First Amendment applies to the government, not landlords. Tenants have the right to express themselves however they wish, but the First Amendment does not entitle them to use their landlords' property to do so.

Ultimately, this is a question of property rights. Tenants who wish the right to express themselves by posting on their windows ought to purchase their own homes. Until then, they should keep in mind that someone else owns the windows they are using.

Ryan T. Darby is a renter, but he doesn't cause too much trouble for his landlord. He's also a staunch defender of property rights and a landlord-tenant attorney.

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