Property, Psyche, and the Theory of Tenancy: Independent and Interdependent Lease Law Covenants Through the Lens of Cultural Psychology

Abstract

Is it property or contract? This question has perplexed scholars studying the residential lease for most of the last century. The present contribution combines the complementary perspectives of legal history and cultural psychology to clarify our theory of tenancy. From a historical perspective, I find that the oscillation of tenancy between competing doctrinal paradigms has resulted in a compromise solution rather than a coherent theory. While piecemeal reforms in the 1970s revised the doctrine of independent covenants, they did not provide a theoretical justification for increasing interdependence. From a psychological perspective, I suggest that such a theoretical justification may come from cultural psychology as the discipline that studies the behavioral effects of independent and interdependent self-construals. I provide the first comprehensive review of how this strand of psychology has informed legal issues in the last twenty years, and I extend this line of inquiry to include tenancy. I conclude that whether we regard tenancy as property or contract (i.e., as based on independent or interdependent covenants) will affect the amount of cooperation that we should expect from landlords and tenants. A theory of tenancy based on this insight would open up avenues for further research in law and society, comparative law, and contract theory.