Note on relationship between contract law and property law

As your casebook explains, landlord-tenant law has evolved from a system where property law defined almost every aspect of the relationship to a system in which the relationship is defined partially by contract law and partially by property law. Not only that, legislative bodies have modified the common-law of property, especially for residential tenants, as part of an effort to increase consumer protection.

When you analyze landlord-tenant problems, you should be sensitive to the interaction of these three different sources of law in determining the respective rights, duties, privileges, powers, and liabilities of landlords and tenants. Always, when you claim a right or assert a duty, privilege, or power, you should be able to identify its source.

The challenge is not unlike that in many other areas of law. Family law is a particularly good example. The commence of marriage is largely a contractual undertaking, while most of the details of the relationship are entirely creatures of common-law as modified by statute. Few marital partners execute detailed pre-nuptual agreements.

You also should be sensitive to the distinction between common-law or statutory "default rules," which can be overriden by contract, and other common-law or statutory rules, which may not, regardless of what a contract says. In Hohfeldian terms, anyone usually has the power to define relationships through contract; in some instances the legislature has extinguished this power; i.e. the parties have a disability instead of a power.