As the housing affordability crisis in the U.S. has intensified, it has also become a political flashpoint. In response, a growing bipartisan consensus has coalesced around a supply-oriented solution: remove the regulatory barriers—including zoning restrictions and environmental review requirements—that stand in the way of developers building more housing; eventually and inevitably, by the laws of economics, this will reduce its cost for both renters and owners. While empirical evidence to date is limited, this “abundance” agenda has had some early success in jurisdictions that have adopted zoning reforms.
However, the abundance movement’s focus on increasing housing supply overlooks the deeper legal and political structure that systematically disadvantages tenants and renders their housing insecure—a doctrinal body of law and policy we identify as “anti-tenancy.” While the supply-side reforms of the abundance agenda respond to one facet of the housing crisis—price—the crisis is not simply the result of the unaffordability of housing; it’s also the result of an underlying structural anti-tenancy bias that exists in a legal, political, and economic system that treats housing as both an asset and a need. Without confronting anti-tenancy, abundance reforms risk producing more housing within the same inequitable structural framework.
The Anti-Tenancy Doctrine
In a 2024 article, we identified a structural pattern that exists in property law, as well as numerous other areas of law, which systematically disadvantages tenants in previously unrecognized ways. While anti-tenancy includes structural imbalances in the landlord-tenant relationship—such as the lack of just-cause eviction requirements or rent stabilization in most jurisdictions—anti-tenancy extends far beyond insufficient tenant protections. It is a doctrinal and institutional bias embedded in the legal system, whereby tenants receive less favorable legal treatment than similarly situated owners across a wide range of contexts.
For example, the federal tax code systematically disadvantages renters, who, unlike owners, do not benefit from an equivalent to the federal mortgage interest deduction for their cost of shelter. Because mortgage law provides widely available, long-term, fixed-rate mortgages, owners have predictability in housing costs that most renters lack. In disaster relief law, federal and state laws put tenants at an increased risk of being underprepared for weather-related hazards because they do not require disclosure of flood risk to prospective tenants, only to prospective owners. Similarly, tenants are undercompensated when those disasters do strike as disaster relief assistance goes disproportionately to homeowners.
In the context of eminent domain, renters are less likely than owners to receive compensation if their residence is condemned. Further, renter-occupied properties are also more vulnerable to condemnation in states with post-Kelo laws restricting the use of eminent domain for owner-occupied residences, but not those occupied by tenants. Notification standards for public land use hearings in local ordinances often only require notice to property owners, not renters, thereby exacerbating the overrepresentation of NIMBY voices in opposition to development.
Even seemingly neutral principles of law result in tenants receiving fewer legal protections. For example, tenants often have diminished Fourth Amendment privacy protections due to the physical configuration of multifamily buildings that differ from the traditional single-family home curtilage. In the consumer law context, tenants in multifamily buildings often pay effectively higher per energy unit utility costs in energy-inefficient buildings because they have no way to access the energy efficiency rebates and tax credits made available to owners.
The prevalence and persistence of single-family zoning is also a facet of anti-tenancy—both because of its correlation with owner-occupancy and its effect on constraining housing supply overall—lending support to the abundance movement’s zoning reform efforts. But by and large, the coalition that supports supply-side deregulation—developers and landowners and a growing faction of market-oriented lawmakers on both sides of the political aisle—benefits from the existing anti-tenancy legal infrastructure.
Anti-tenancy doctrine is, from the perspective of the asset-holding class, a feature rather than a bug: it preserves the ability of investor-owners to set prices and gain tax advantages that make rental property a profitable asset. Investor-owners profit from the absence of just-cause eviction and rent stabilization. Homeowners benefit from policies that are systematically unavailable to renters. Local governments, dependent on property tax revenues and captive to “homevoters,” have structural incentives to support policies that keep property values high.
The anti-tenancy doctrine is so pervasive in part because it reflects a fundamental contradiction at the heart of American housing policy: we expect housing to function simultaneously as an investment asset and also to fulfill a basic human need for shelter. For owner-occupants, housing serves both purposes. For investor-owners, it serves solely as an asset. For renters, it serves solely as shelter. As an investment, housing must appreciate in value; but to fulfill the need for shelter, housing must remain affordable. On balance, it seems like asset treatment is winning the tug-of-war.
More Supply Leaves Anti-Tenancy Intact
The abundance agenda does little to respond to anti-tenancy because abundance is framed primarily around the asset function of housing. By treating housing as a largely homogeneous good subject to standard supply-and-demand dynamics, it overlooks the use-value of housing—the interest that occupants have in secure, stable shelter—and the need for a legal system which accords renters’ shelter interest parity with similarly situated owners. This use-value is distinct from whether housing supply as a whole is expanding or contracting. Supply solutions do not ask who will occupy new units, on what terms, and with what legal protections. But these questions determine whether increased housing supply actually improves the lives of the people most impacted by the housing crisis.
This blind spot is not incidental. The abundance framework assumes that lower cost is the appropriate ultimate measure of welfare. It assumes that more supply creates more competition for renters in the rental market, allows some renters to exit that market into homeownership, and thus, by itself, gives renters more agency. But costs are only part of the calculus for tenant welfare. Consider a tenant who, as a result of abundance reforms, secures a more affordable unit in a more competitive rental market. That tenant still faces eviction without cause. They still receive no federal tax benefit equivalent to the mortgage interest deduction. They are still uncompensated if their building is condemned through eminent domain. They are still omitted from the notice provisions of local land use hearings. Lower rent does not cure any of these disadvantages because the harms of anti-tenancy are not caused solely by the supply-side housing shortage.
This insight parallels arguments from the antitrust context: that measuring market health by price alone obscures how concentrated power distorts democratic participation and distributional fairness across the legal system more broadly. Just as consumer welfare—understood narrowly as low prices—is an inadequate benchmark for evaluating market structure, tenant welfare cannot be adequately measured by rental costs alone, without also accounting for the legal and political power imbalances that shape outcomes for tenants more broadly.
Further, even if lower prices mean more former-tenants can become owners, merely enlarging the potential number of asset-owners does not restructure the patterns of anti-tenancy that reflect and reinforce the political power of asset-holders. This is especially evident when one considers who is likely to purchase the additional housing supply produced because of zoning deregulation and other abundance reforms. If it’s primarily institutional investors or high-income owners seeking additional wealth-building assets, the market, over time, may simply replicate today’s. The new supply of assets may drive even higher demand for those assets, driving the price even higher. Like the well-known induced demand paradox in transportation, building more supply (whether freeway lanes or market-rate housing) may simply lead to more demand (whether cars or investors), so much so that the intended social good (whether less traffic or lower housing costs) does not result.
The pattern of entrenched structural power revealed by anti-tenancy reflects a broader critique of the abundance agenda: it is insufficiently attentive to the fact that financial power shapes markets as much as government (over-)regulation. As Senator Elizabeth Warren noted in a recent speech: “[Y]es, we need more government efficiency, a lot more, but many in the abundance movement are doing little to call out corporate culpability and billionaire influence in creating and defending those very inefficiencies . . . [O]ngoing inefficiencies that we cannot seem to fix often exist because powerful people have captured the regulatory process, and they use those regulations to block improvements that would bite into their own profits.” The abundance agenda, if left unattended, may become a politically convenient substitute for the deeper structural change that is actually needed.
Supply-Plus Solutions
The abundance agenda is having a political moment, and for good reason. We do need more housing, and we need it sooner rather than later. Reforms to increase housing supply—zoning liberalization, ADU legalization, modular construction incentives, public sector innovation in housing production—are meaningful and we support these efforts.
But building more housing and providing greater legal parity to tenants are not mutually exclusive. Properly aligned, abundance reforms and anti-tenancy reforms can complement and reinforce each other—what we call supply-plus. For example, conditioning upzoning and federal housing incentives on tenant protection requirements—such as mandated just-cause eviction and rent stabilization lease terms—would do more to ensure that new supply enters the market with structural protections attached.
Tax restructuring could reduce the advantages of investor ownership (such as depreciation deductions and capital gains preferences), instead redirecting tax expenditures toward direct subsidies and property tax relief for de-commodified alternatives (like community land trusts and social housing), addressing the asset-versus-shelter contradiction at its root. And where “wicked hard politics” make more far-reaching reforms politically challenging, non-housing policy interventions may provide alternative approaches. Championing publicly supported pensions, for example, could help counter the financialization of housing by alleviating homeowners’ dependance on a single asset (and the associated pathologies like NIMBYism) that result from the dominance of the housing-as-asset model.
Of course, some of these proposals will be in tension with each other, and policymakers and commentators will likely disagree about the tradeoffs. But the answer to this tension cannot be to ignore it and build more housing while leaving the second-class status of tenants fundamentally unchanged. More supply without structural change means more tenants living within the same anti-tenancy legal framework—subject to eviction at will, unable to build equity, unable to benefit from the tax advantages that their owner-occupant neighbors have, and with no guarantee that the home they occupy today will still be available to them when their lease expires.
The housing crisis is a crisis of scarcity, to be sure. But it is also a crisis of equity. The underlying legal infrastructure of anti-tenancy is not a neutral background but an active, doctrinal system of distributional choice that serves the political-economic project of homeownership promotion, financialization, and overwhelming market power. Abundance and anti-tenancy must be in conversation with each other to effect real change.
