What is the right to exclude?


Landlord-tenant disputes are often the product of poor communication, miscommunication, or a total lack of communication between the parties involved. Sometimes a landlord will require a tenant to do or refrain from a particular action such as having guests, and the tenant will wonder whether the landlord’s request is legal.

To answer the question, one must  have a general knowledge regarding the attributes of property ownership. The attributes of property ownership are often referred to as the bundle of rights—the interests or rights an owner has in his or her property.  This “bundle of rights” includes the rights to exclude, convey, and destroy when you are a property owner, such as the landlord in our present situation. This blog post concerns the right to exclude.

In short, the right to exclude is a fundamental right to prevent others from using one’s property. However, there are limits to an owner’s right to exclude, such as:

1) Governmental limits (e.g., Fair Housing Act)
2) Private limits, covenants, and easements
3) Private necessity (e.g., docking a boat at a private pier during a storm)
4) Public necessity (e.g., waste removal, putting out a fire, etc.)

In a general sense, the right to exclude will either be stronger or weaker depending on whether the property is considered public or private.  In modern law, there are two prevailing views on the topic.  To illustrate these views, let’s imagine a scenario where an owner of a shopping center wants to exclude visitors from his establishment.  The minority view is to elevate the shopping center to the level of public property; for example, shopping centers are private places, but they invite guests and thus appear to guests as a public facility.  Few states follow the notion that a shopping center is “semi-public” in nature.  The majority view is that shopping centers are considered private property.  Accordingly, shop-owners have greater rights to restrict expressive activity.  When there is a temporary invasion onto private property, courts will look to public policy, attempting to balance policy with the constitutional rights of the private property owner.

When the right to exclude involves landlord-tenant disputes such as restricting the tenant from having guests, longstanding public policy mandates that landlords can’t restrict the right of tenants to have guests in their rentals. However, landlords might place clauses in the lease agreement to circumvent this policy.  It is amazing how often people sign lease agreements without even reading the contents, let alone having an attorney review the agreement prior to signing it.  Attorneys are able to determine the exact parameters of your tenancy, and determine if any of the clauses contained in the agreement are invalid and unenforceable.  Conversely, for landlords it is imperative to know whether the provisions in your lease are valid and enforceable.  Qualified attorneys are available to assist with drafting or reviewing these incredibly important lease agreements.

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