With tenant organizing on the rise across the United States, legal scholars have been drawn to the idea that tenant unions, backed by the right legislative framework, could serve a function akin to labor unions. Kate Andrias and Benjamin Sachs helped start the conversation by exploring how law could enable tenant unions, among other mass-membership organizations, to build countervailing power among the poor and working class. John Whitlow then explored how a tenant collective bargaining framework could increase countervailing power against financialized landlords. More recently, Duncan Kennedy, Karl Klare, and Michael Turk have put forward a proposal to strengthen tenant unionism through the creation of government agencies that would supervise collective bargaining with landlords, what they call “A Wagner Act for Tenant Unions.”
The appeal of the analogy between labor and tenant unions is not difficult to see. Since at least 1904, when garment workers organized in the labor movement of New York City’s Lower East Side directed their militancy toward landlords, tenants have called their refusal to pay rent “strikes” and referred to replacement occupants as “scabs.” And both types of unions have relied upon a combination of suasion and direct action to pursue greater bargaining power. In turn, there have been several proposals and experiments to formalize bargaining between tenants and landlords, from a Tenant Union-Landlord Relations Act proposal in 1970 – inspired by Southern Christian Leadership Conference and United Auto Workers efforts to organize tenant unions in Chicago at the time – to a San Francisco ordinance last year requiring landlords and tenant associations to “confer with each other in good faith.”
But while tenant and labor organizing share a great deal, both historically and in their potential, this does not mean both need the same statutory agenda. Labor and tenancy serve different functions for capitalism. Tenants are purchasers not producers, so their ability to leverage interventions such as price controls, possessory rights, and product standards – as well as their potential need to drive a landlord out of business in order to decommodify the building – require different legislative agendas than what the labor movement has pursued. Instead of adopting the model of labor law, the tenant movement would be better served by strengthening the legal framework on which it already relies.
Leverage Consumer Protections, Not Bargaining Rights
Tenant unions already bargain with landlords. Although they do not negotiate within a framework like the National Labor Relations Act, the bargaining is shaped by each tenant’s equivalent of consumer protections. This is because housing is a commodity that tenants consume rather than produce.
In productive industries, workers seek both to grow the pie generated by consumers and, by withholding production through the strike, to take home a bigger share. But in the housing context, the tenants are the consumers, with the pie grown only through raising rents on current tenants (not good), through higher-paying replacement tenants (usually worse), or through the landlord raising more capital from the building’s equity or from government subsidies and tax abatements (rarely the subjects of collective bargaining). Likewise, tenant unions don’t have a power that is comparable to controlling production. Even when done collectively, withholding rent does not function the same as withholding production.
From that perspective, the best analogy is not labor law but government intervention in consumer markets. Rent control, along with the statutory right to renewal leases that make rent controls workable, operate as price controls. Housing codes that require owners to preserve or improve a building are akin to product standards. Where these protections are strong and enforceable, they establish the leverage tenants need for bargaining and strengthen the union’s hand.
For instance, in 2020, as the coronavirus pandemic spread, the Ivy Hill-Alice Street Tenant Union in Oakland, California, went on rent strike with the support of the Bay Area Tenant and Neighborhood Councils. The union’s strategy leveraged their unique possessory rights and California’s framework for rent withholding. Oakland’s City Council had passed an eviction moratorium, barring evictions for nonpayment of rent. Each tenant also held a rent-controlled lease, meaning the landlord was required to renew it, with rent increases capped. Additionally, if the landlord took them to eviction court (after the moratorium ended) and the court found a substantial breach of habitability, they would owe no more than the difference between the rent they withheld and the damages awarded for their claims. A combination of strong possessory rights, rent withholding protections, federal rent relief dollars (the government-grown pie), and militant courage allowed the union to effectively negotiate rent abatements without a formalized bargaining framework. Now the landlord is required to provide renewal leases without the tenants having to litigate retaliation claims.
The KC Tenants in Kansas City, Missouri, also escalated their organizing around the same time. However, tenants in Kansas City did not have access to the same underlying legal protections as in Oakland. They were only protected by the Center for Disease Control’s short-lived, widely ignored eviction moratorium, landlords were not required to renew leases, and there was no cap on rent increases. If these tenants withheld rent, the court would require them to post the full amount owed as a bond before ever hearing claims about conditions. Operating in the shadow of these laws, KC Tenants did not declare mass rent strikes and attempt to negotiate directly with their landlords. Instead, KC Tenants with many different landlords chained themselves to courthouse doors and Zoom-bombed court appearances to stop evictions.
Because KC Tenants lacked the same underlying rights as their counterparts in Oakland, they used direct action to shut down eviction courts. Yet even though they did not target landlords directly, KC Tenants members report their landlords now refusing to issue them renewal leases. What would have enabled these tenants to both bargain directly with landlords and to hold onto whatever they won was the protections that the union in Oakland leveraged: price controls, strong possessory rights, and sanctioned rent withholding. Not only do laws like that ensure universal protection, tenant unions can leverage these rights in unsupervised bargaining to contract into relief that is more expansive or specific than the remedies available to them in court.
We recognize that such substantive consumer protections are not incompatible with greater supervision of collective bargaining. Kennedy, Klare, and Turk, for instance, propose a higher statutory floor for individual tenant rights alongside government formalization of the bargaining process. But our point is that if what we care about are such protections, then there is no reason to subject these protections to bargaining rather than just universalizing them. Why bargain over renewal leases or rely on anti-retaliation provisions when renewal leases can be obligatory? Why bargain over conditions when there are poorly enforced housing codes for which tenants could instead seek private rights of action, fee shifting, and the ability to aggregate claims? Why bargain against face recognition surveillance in hallways when a legislature can make it illegal?
In short, the political power necessary to pass a collective bargaining ordinance would be put to better use by passing universal protections instead. It’s the same reason that organized consumers are better off securing product safety through legislation than negotiation, or that police abolitionists are better off banning face recognition than enacting a framework for bureaucratic approval of surveillance. Rights negotiated on a building-by-building basis are a step down from the protections that tenants have already shown their ability to win universally. Moreover, those universal protections give tenant unions more bargaining leverage than a duty of “good faith” negotiation would.
We recognize that pursuing tenant protections through legislation rather than bargaining might seem like settling for dependence on the state. But calling for government supervision of collective bargaining is also an appeal to state power, a power we believe is better spent policing landlords than policing tenant bargaining. Likewise, it’s true that direct action (blockades, squatting, guerilla repairs, and the like) will sometimes get the goods. Those tactics also make a moral case about the system’s barbarity. But as we saw in Oakland, it is laws increasing a tenancy’s possessory rights and rent withholding protections that establish a basis for tenants to collectively bargain.
Decommodification, Not “Good Faith” Bargaining
Just because housing is a commodity does not mean it should be. Yet this raises another, perhaps more dangerous downside to formalizing collective bargaining with landlords: it could undermine tenant union strategies to decommodify housing. The Wagner Act for tenants includes a ban on evicting rent-striking tenants wherever the owner is found to bargain in bad faith. But what appears dangerous to us is the potential of a tenant union’s reciprocal obligation to bargain in good faith. While such reciprocity is not explicit in what Kennedy, Klare, and Turk propose, it’s difficult to imagine a framework where the government coerces only landlords to bargain in good faith.
Labor law and a landlord-tenant collective bargaining framework both assume a perpetual detente between the union and the boss or landlord, the promise of peace. However, whereas labor unions rarely strive to seize ownership of a business, the tenant movement has long sought to take control and even ownership away from landlords by driving them out of business. Takings jurisprudence makes laws that deprive owners of something of value without compensation unconstitutional. Undeterred, tenants have used extralegal tactics like squatting and eviction blockades, as well as indirect legal strategies like the appointment of rental receivers, tax foreclosures, and covenants on public loans to secure control or ownership of their homes, converting them into community land trusts and limited equity cooperatives.
If tenant unions are required to bargain in good faith, the danger is that the economics of a building will frame adjudication of “good faith.” Whether a speculator paid an inflated price based on expected appreciation once they replace longtime residents or a slumlord is “milking” a property without reinvesting in upkeep, tenants create opportunities to acquire and decommodify housing when they force an unwanted owner into the red, leaving the owner no choice but to divest. Any framework where rent needs to justify a speculative asset’s acquisition price will tie tenant unions to the terms of the owner’s bet.
Here again, why force tenants to bargain over condominium conversion when courts have upheld laws requiring approval from fifty-one percent of tenants? Why bargain over sale of the building when you can give tenants a first right of refusal to purchase it? Where these mechanisms have failed to deliver tenant ownership, it is hard to see how a vaguer bargaining obligation would increase tenant leverage.
None of this is to say decommodification either can or should be the sole priority of legislation to support tenant organizing. Given the Takings Clause among other realities, many factors need to align to make tenant acquisition a possibility. An owner’s constitutional entitlements always ensure that the market retains some say. Tenants who successfully force out one landlord may struggle to fend off the next, and even new ownership can be a defeat where the tenants’ possessory rights don’t survive the sale. In most jurisdictions today, tenant unions will prefer strategies focused on bargaining with their landlords. But an important lesson of the labor movement’s contest with globalization is that we should be wary of designing a positive legal framework around the political economic context of a particular moment.
The tenant movement’s strategies will shift with material changes. A half century ago, real estate in cities like New York City drastically lost value, and landlords abandoned or even burned down buildings. Organized tenants used that opportunity to develop extensive, permanently affordable social housing. Now, with the highest rents in the country, New Yorkers are fighting harassment, eviction, and displacement, so tenant ownership feels financially out of reach. But just as white flight in the 1960s and white return starting in the 1990s upturned housing markets, a fiscal crisis, a pandemic, and climate change – all of which have recently transformed urban life – can change a city’s property values, population size, and demand for scarce units, requiring a different agenda for building tenant power. And while every tenant union might not want the government to police their bargaining, all tenants will benefit from increasing their rights over a tenancy that the landlord wants total discretion to end.
Instead of government supervision of tenant bargaining, any legislative agenda to advance tenant power should focus on increasing tenants’ flexibility and leverage. This will strengthen whatever blows tenant unions aim at landlords without limiting their bargaining outcomes to what the speculative housing market can bear.
