Conquering Renters’ Blues

Originally appeared in the November 1998 issue of the ABA Journal.

Harmless Error - A Truly Minority View on the Law

Conquering Renters’ Blues

BY ANDREW J. McCLURG

As you might recall from law school, modern property law developed out of the Norman Conquest in 1066 A.D. What you might not know is that the whole mess started because the king of England refused to return William of Normandy’s security deposit on a castle he rented.

The king, adopting a tactic still used by landlords today, claimed William left too many holes in the walls when he vacated the premises. William argued the king was being unreasonable since there’s no way to bludgeon serfs with a mace without leaving holes in the wall. But the king wouldn’t budge and the Norman Conquest followed.

Property law hasn’t changed much in the last thousand years. Landlords continue to withhold security deposits at an alarming rate. Meanwhile, most renters lack the resources to mount a conquest, placing them at a bargaining disadvantage.

So what’s a renter to do? Expert property lawyers agree there’s only one reliable legal strategy to avoid losing a security deposit: never, ever rent. Buy a house. But before you do, review these important property law concepts for your protection:

Covenants Running with the Land

Always check to see if there are any covenants running with the land, which can restrict your use and enjoyment of the property. To run with the land, the covenant must “touch and concern” the land. To investigate this, sit down with your land and talk openly about the covenant. If the land is sincere, it should be touched and concerned. If not, it’s probably an insensitive jerk that should be dumped for another parcel.

Marketable Title

When buying property, be sure it has a marketable title. The more marketable the title, the higher the value. For example, Graceland, Little House on the Prairie and Wrigley Field are all very marketable titles. On the other hand, Place Where Joe Lived, Temple of Doom and Chernobyl aren’t.

Fixtures

A major concern in buying a house is determining what are and are not fixtures. Fixtures are items permanently attached to the property. If an item is a fixture, it goes with the house as part of the transaction.

To avoid later disputes, iron out in advance which items are fixtures. In a recent landmark case, a judge ruled that a couch potato named Ernie was a fixture who went with the house. The decision was bad news for home buyers, but great news for Ernie’s wife, Coleen.

Easements by Prescription

Make sure you have proper egress and ingress rights to the property prior to purchase. If not, you’ll need to get an easement from your neighbor. The simplest kind of easement to obtain is an “easement by prescription.” Follow these four easy steps: invite your neighbor over for dinner, dump some Valium in his beverage, wait thirty minutes, hand him a pen and the necessary papers.

Lateral Support Rights

Honestly, I’m not too sure what these are, but rumor has it this will be the next big “rights” movement to sweep the nation. Whatever you do, don’t violate the rights of your lateral supports because you could get slapped with a big lawsuit.

If you absolutely must rent, you might as well get your money’s worth out of your security deposit. Hang your pictures with a sledge hammer.

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Andrew Jay McClurg is a law professor whose teaching and research interests include tort law, products liability, legal education, privacy law and firearms policy. He holds the Herbert Herff Chair of Excellence in Law at the University of Memphis Cecil C. Humphreys School of Law.
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