Social legislation and social activity

by American Academy of Political and Social Science

TENEMENT HOUSE REGULATION—THE REASONS FOR IT—ITS PROPER LIMITATIONS

By Robert W. De Forest

Tenement House Commissioner of the City of New York

When Theodore Roosevelt, then Governor of the State of New York, attended the opening of the Tenement House Exhibition of the Charity Organization Society of New York, and looked over the models of tenements, old and new, and the charts which showed the close connection between the housing of the vast majority of that city’s population, and health, pauperism and crime, he said to the few of us who had organized this exhibition—“Tell us at Albany what to do, and we will do it.” The result was the New York State Tenement House Commission of 1900, the enactment last year of the most advanced code of tenement house laws as yet put in force in any American city, and the creation for the first time in this country of a department directly charged with the oversight of the construction and proper maintenance of tenement houses.

The tenement house problem we had to meet in New York was the most serious of any city in the civilized world, for in New York, according to the last census, out of 3,437,202 inhabitants, 2,273,079, or more than two-thirds, lived in tenement houses, and there were 82,652 of these tenements in the city.

The interest in this particular phase of the housing question is not confined to New York. No one who has followed, even carelessly, public opinion on this subject can fail to realize the hold it has upon the public conscience. It may be that some tremble at the effect upon their own fortunes of a possible social revolution, and seek to protect themselves, for their own sake, by trying to make what they call the lower classes more comfortable in their homes. But the large body of men and women in this country who are giving to this subject attention, are doing so from love of their fellow-men, and an earnest desire to give them in their homes some of the healthful surroundings and comforts they enjoy in their own.

There are few large cities in America in which there is not some tenement regulation, and some agitation for its extension. At the moment there is an active movement in Boston for the appointment of a commission to frame a new code of tenement house laws for that city. There is a similar movement in Chicago and in Cincinnati. Nor is this activity confined to the larger cities. Kansas City in the West, Hartford in the East, Yonkers, Syracuse and Rochester in New York, are already moving in the same direction, and the subject is receiving close attention in Washington, Cleveland and Pittsburg.

The New York law of last winter was a state law applicable to all cities of the first class. It included Buffalo as well as New York, and Buffalo did its full part in securing the enactment of the law. Philadelphia is emphatically the City of Homes, and not of tenements. Fortunately for Philadelphia, its working classes are almost exclusively housed in single family dwellings. It has, as most of you know, an admirable code of tenement house laws, which has proved very useful to us at New York in preparing ours, and it has its Octavia Hill Association to advance the cause of housing reform.

In some quarters benevolent people are proposing to build model tenements. That is good as far as it goes, but if at the same time other people, not benevolent, who have no motive but gain for themselves, are permitted to build tenements which are not models, the extent of progress is very limited. What we must do, first and foremost, is to secure proper legislation, using that term in its broadest sense, to include city ordinance, as well as state law. Legislation to regulate building, so as to secure for new buildings proper air and light space and proper sanitation; legislation to regulate, in buildings old and new, their maintenance so that health conditions may be improved and at least not be impaired; legislation, moreover, that provides the means for its own enforcement, by proper inspection.

Most of us have been brought up to believe that, as owners of real estate, we could build on it what we pleased, build as high as we pleased, and sink our buildings as low as we pleased. Our ideas of what constitutes property rights and what constitutes liberty are largely conventional. They vary with time and place. They are different in different countries. Liberty, proper liberty, to-day, may, under changing conditions, become license to-morrow. I came home from Europe not long since with a French friend, who had gone home to his native country to take possession of his ancestral estates. He told me of having found the trees grown up quite thickly around his father’s country home, and of the difficulties he had encountered in obtaining permission from the public authorities to cut down some of them, which was finally only granted on condition that he replanted elsewhere. That his trees could only be cut down with the consent of the public authorities, and that he could properly be required to replant elsewhere as a condition of obtaining that consent, seemed to him a part of the eternal order of things. He no more questioned it in his mind than we, who live in cities, question the propriety of obtaining from the city building department a permit to build, based upon approval of our architect’s plans.

Lecky, in one of his later books, speaking of sanitary legislation, says: “Few things are more curious than to observe how rapidly, during the past generation, the love of individual liberty has declined; how contentedly the English race are committing great departments of their lives to the web of regulations restricting and encircling them.” It is not that love of liberty has declined, it is that the English race are meeting new conditions with the same genius with which they have evolved their great system of common law. Living, as most of them did a century ago, in separate houses, and in small villages or towns, every man could build as he pleased and could maintain his building as he pleased without seriously endangering the liberty of his neighbors, but with the steady movement of the population from the country to the city, and the marvelous growth of cities, not only horizontally but vertically, new conditions must be met, and the property rights and liberty of one neighbor must be limited to protect the property rights and liberty of another. If a man built an isolated house in the country, without light or air for the bedrooms, and kept it in such filthy condition as to breed disease, it is a fair question whether his liberty should be infringed by any building or health regulation. He may be fairly left free to suffer the consequences of his own misuse of his liberty. His death, and that of his family, from disease so caused may, as an awful example, do more to advance civilization by making his neighbors more careful, than would his life and theirs under enforced sanitary regulation. But if that same man is separated from you and me only by a board partition or twelveinch wall, and our families meet every time they go into the street or into the back yard, his liberty must be restricted in some degree in order to enable you and me to enjoy ours.

How and why has tenement house law been evolved in American cities? In the same way in which the Anglo-Saxon mind deals with any such problems. Just as it evolved common law, and for the same reasons. First a case—that is, an evil—to be remedied; afterward a decision—the application of the remedy, and the establishment of a principle or law by which similar evils shall be remedied. It is not according to the genius of our race to provide the remedy in advance of the supposed disease. Better be sure that the disease really exists, even if some few die from it, and then provide the remedy which will be sure to meet actual conditions, than to burden the community with advance remedies for diseases that after all may prove to be imaginary. Even if the disease be not imaginary, such remedies are apt to be worse than the disease itself. Thus, in Anglo-Saxon countries, a conflagration has usually preceded precautions against fire, and the evils of sunless, airless and unwholesome tenements have preceded any attempt to prevent these deplorable conditions. Eventually we act, and when we do we act practically.

It may be well to define what is meant by a tenement house, for without definition there is infinite confusion in the use of this term. In one of our recent civil service examinations in New York, a candidate, evidently “learned in the law,” or supposing himself to be so, defined it as being “That which is neither land nor hereditament.” It has its popular and its legal meaning. Popularly, it is used to designate the habitations of the poorest classes, without much thought of the number of families living under any particular roof. The National Cyclopedia significantly says: “Tenement houses, commonly speaking, are the poorest class of apartment houses. They are generally poorly built, without sufficient accommodation for light and ventilation, and are overcrowded. The middle rooms often receive no daylight, and it is not uncommon in them for several families to be crowded into one of their dark and unwholesome rooms. Bad air, want of sunlight and filthy surroundings work the physical ruin of the wretched tenants, while their mental and moral condition is equally lowered. Attempts to reform the evils of tenement life have been going on for some time in many of the great cities of the world.”

Legally, tenement is applied to any communal dwelling, inhabited by three, or in some cities four, or more families, living independently, who do their cooking on the premises. It includes apartment houses, flat-houses and flats, as well as what is popularly called a tenement, if only built to accommodate three, or as the case may be four, or more families who cook in the house. It is in its legal sense that I use the term. At first blush it may seem objectionable to class apartment houses, flat-houses and tenements, so called, together, and subject them to the same code of regulation. Practically, it has never been possible to draw any line of separation between different houses which are popularly designated by these different words. Nor has anyone ever suggested any regulation proper for the poorest tenement, using the word now in its popular sense, which would not be voluntarily, and as matter of self-interest, complied with in the most expensive apartment house. Nor is there any certainty that what to-day is popularly called an apartment house may not to-morrow, in popular parlance, be a tenement of the worst kind. My own grandmother, within my own recollection, lived in what was then one of the finest houses, in one of the most fashionable streets of New York. Not long since I passed the house, and noticed on the front door a sign reading, “French flats for Colored People.”

In its earliest form (and many cities have not yet passed beyond the first stage) the tenement was a discredited private house, or other building, not originally built for the occupation of several families, but altered for the purpose. Each floor of what was originally a private dwelling was changed so that it could be occupied by a family. Later on—it may be at the beginning—each floor was subdivided between front and rear, so that it could be occupied by two families. One of the chief evils of such tenements arose from cellar occupation, and consequently some of the earliest tenement house regulations relate to the occupation of cellars.

In its second stage the tenement house is built for the purpose, imitating, not infrequently, in a servile manner, the arrangement of the altered house, with its dark rooms, and only gradually being adapted to a new architectural form growing out of its special use. The introduction of running water and city health regulations made it possible and desirable to locate water-closets inside. Courts and air-shafts increased in size. Fortunately, the process of evolution is not exhausted, and is still going on.

The tenement is still regarded in many places as an exotic, not adapted to our climate. But, judging from the history of New York and other cities, West and East, the tenement house has come to stay, and is, perhaps, destined to crowd out other and better forms of housing. I remember well when the first tenement to be dignified by the term apartment house was built in New York. It was in the early 70’s. Now it is a prevailing type of new building for dwelling purposes on Manhattan Island. There were no less than 82,652 tenements in Greater New York at the time of the last census. The development of the tenement has been largely influenced by legislation intended to prevent its worst evils. To test the reason for such legislation, and to define its limitations, a brief summary of particular subjects of regulation is desirable.

Protection against fire is almost universal. Structural provisions directed to this end are contained in the building laws of all cities. In New York, Philadelphia, San Francisco, Jersey City, Providence, Syracuse and Nashville, all tenements must have fire-escapes. All tenements over two stories in height must have fire-escapes in St. Louis, Baltimore, Louisville, Minneapolis, St. Paul, Denver, Toledo and Columbus. In Chicago, Cleveland and Cincinnati, this rule only applies to tenements over three stories in height. In many cities tenements must be fireproof throughout when over a certain height. In Philadelphia this is true of all over four stories; in Washington of those over five stories; in New York, Buffalo, Louisville, Minneapolis and Denver, of those over six stories in height. In Boston, the limit is 65 feet.

Light and ventilation are protected by minimum open spaces. In Philadelphia there must be open spaces at the side or rear equal to one-fifth of the lot area, and the minimum width of all spaces is eight feet. In Buffalo, under the local law in force before the general state act of 1901 was passed, the minimum width of any outer court was six feet in two-story buildings, eight feet in three and four-story buildings, and one additional foot in width for each additional story. The minimum interior court was eight by ten. In Boston, a clear open space at the rear must be left equal to one-half the width of the street on which the tenement fronts, and there must be two open spaces at least ten feet wide. In some cities the required court area is expressed in square feet, without regard to minimum width or length, and increases proportionately with the height of the building. This principle is adopted in New York, where the minimum width of exterior courts in buildings five stories high is six feet on the lot line and twelve feet between wings, and the minimum area of interior courts on the lot line in buildings of the same height is twelve by twenty-four, reduced this winter in three-story tenements to eight by fourteen. Such buildings must have an open yard at least twelve feet wide in the rear. The height of rooms is almost universally regulated, the minimum usually being eight feet. The height of tenements is limited in many cities.

Water supply is prescribed. In New York, water must be furnished on each floor. In Philadelphia and Buffalo, on each floor, for each set of rooms. In Boston, Chicago, Jersey City and Kansas City, in one or more places in the house or yard.

Water-closet accommodation is very generally prescribed. In Philadelphia, and in New York under the new law, there must be one for every apartment. Under the old law in New York, and at present in Chicago and Detroit, there must be one for every two families. In other cities the unit is the number of persons. It is twenty persons in Boston, Baltimore and Denver; ten persons in Rochester.

The reasons for tenement regulation may be roughly classed as follows—precise classification is impossible, as it is seldom that any particular regulation is attributable solely to a single reason:

The protection of property rights in adjacent property. Such is the reason for regulations requiring fireproof construction in whole or in part. Such is the chief reason for limitations of height and for leaving an obligatory open space at the rear of each house so as to preserve thorough ventilation for the block. The protection of neighbors and the community from unsanitary conditions, by which they might be affected, or which might breed contagion. Under this class falls the great body of sanitary law and tenement house regulation of a sanitary kind. That all legislation which falls within these classes can be justified as a proper restraint on the liberty and property rights of some, in order to protect and preserve the property rights and liberty of others, is clear.

There is another and increasing class of regulations intended to protect the life and health of those who cannot, it is supposed, protect themselves by any means within their control. Fire-escapes, which are almost universally required by law in non-fireproof tenement houses, belong to this class. There is no such regulation for private houses, and there is usually no such requirement for two-family houses. The reason for the fire-escape in tenements and hotels must rest either on the supposed inability of the inmates to protect themselves, as the owner of a private house can protect himself and his family, or else from the greater number of persons exposed to risk. Of such class also is the law providing that there be a separate water-closet for each apartment, as in New York, or for every two families, as in Detroit and elsewhere, and that lights be kept burning in public halls at night. No such regulations exist for private houses. They can be only justified in tenement houses on the theory that the tenants in such houses must live in them, cannot control their maintenance in these particulars, and are entitled to the protection of affirmative law for these necessities or conveniences. It may be answered that they need not rent rooms in houses not furnished with separate water-closets, and the halls of which are not kept lighted, unless they wish to, and that they should not be restricted in their liberty to rent rooms in such houses, it may be at a lower rent, if they so desire. The reply may be, and in some cities would properly be, that they would have no choice unless the law intervened to protect them. Moreover, it might be urged that in the provision for separate water-closets for each apartment, and in the lighting of public halls, there was an element of protection to public health and morals in which the community had an interest, and which the community by regulation should insure.

I have sought by these illustrations to point the closeness of the dividing line between justifiable restriction of the individual liberty of the house builder and house owner, for the protection of the liberty of others, and paternalism. It is undoubtedly true, as Mr. Lecky states in the concluding part of the paragraph to which I have already referred, that “the marked tendency of these generations to extend the stringency and area of coercive legislation in the fields of sanitary reform is one that should be carefully watched. Its exaggerations may, in more ways than one, greatly injure the very classes it is intended to benefit.” There is real danger lest in our eagerness and earnestness to improve the condition of others, we legislate from the point of view of those fathers and mothers who are always ready to regulate the affairs of every family but their own, and break down the habit of self-dependence and the spirit of individual responsibility upon which the vigor of our American social fabric so largely depends.

Perhaps the most important limitation to tenement house reform, in the construction of new tenements, is the question of cost. If tenements cannot be rented at a profit they will not be built. There are many things which it would be desirable to have in a tenement, each one of which adds to its cost, and if they be required by law to an extent which makes it unremunerative, tenement building will cease. It is undoubtedly desirable that all tenements should be fireproof throughout; indeed, the same may be said of private houses. In 1892, Boston so prescribed; but few, if any, were erected, and the law was consequently modified in 1899.

The amount of rent which the average American workingman in any particular city can pay approximates a fixed quantity. Any legislation which materially increases this rent, or which prevents building and therefore prevents his finding shelter, is quite certain to be repealed. This proposition, however, is not so discouraging as it may appear at the outset. The standard of living among our working classes is steadily improving. What yesterday was a luxury, to-day is a necessity. In many cities, apartments which are not provided with running water are unrentable. Bathing facilities are increasingly in demand, and are frequently being provided. Families that have once lived in apartments where the bedrooms have light and air, will not hire apartments which are dark and unventilated. The supply must meet the demand. Interest rates are receding; economies in construction are being introduced, which some time ago were unknown, largely by the building of houses by the wholesale. The large profits which were demanded as the normal income on tenement houses in the past are no longer expected. Rooms up to the standard of the modern tenement house law can be provided without increasing the rental.

Another limitation in many cities is the prevailing lot dimension. If Dante were to-day writing his “Inferno,” the lowest depth would be reserved for those men who invented the twenty-five foot lot and imposed it on so many American cities. In unbuilt districts, where several lots, whatever be their dimensions, can be purchased and built upon together, the lot dimension does not necessarily control the frontage of the building, and the tendency in such districts in New York is to build tenement houses of wider frontage, which admit of better court arrangement, but there are usually so many lots separately owned, and so many which are situated between lots already built upon, so that their enlargement is impossible, that any proposed legislation prescribing court areas which, however desirable, puts the prevailing lot unit at a disadvantage, will meet with overwhelming resistance. No better illustration of this can, perhaps, be found than the story of New York legislation this winter, of which I intend to speak. From the point of view of proper tenement house construction, happy that city in which land is sold by the front foot, instead of by any procrustean lot unit.

There is another practical limitation, not necessarily to the enactment of tenement house law, but to its permanence, in the extent to which it, either actually or supposedly, interferes with the profits of builders and material men, and perhaps no better illustration of this practical limitation can be given than a simple recital of the contest over the radical amendment of the New York law which has been waged at Albany during the past few weeks, and which terminated only a few days ago. The New York law of 1901 marked the longest step in advance that tenement house reform in that state has ever taken, though in its provisions for court areas, the particular point in which it was assailed this winter, it does not go so far as the Philadelphia law, and but little further than the previous Buffalo law. It unquestionably increased the cost of construction by its fireproof provisions, as well as, though in a less degree, by its larger court areas. That there would be, this winter, organized effort on the part of building and real estate interests to modify it was certain and inevitable. Many bills were introduced amending it, but my illustration only concerns two, the City Administration bill, in the preparation of which I myself had part, and a bill introduced by a Brooklyn member of the Legislature in the interest of Brooklyn builders and material men, who claimed that they represented the people of Brooklyn. It is a fair question whether Brooklyn did not really have a grievance against last winter’s law. One of the prevailing types of Brooklyn tenements is a three-story house on a twenty-five foot lot, with two families on a floor, making six families in all, each apartment running through from front to rear. These houses had been built with interior courts or air-shafts about two and a half feet wide and ten feet long. These light-shafts were supposed to light and ventilate the interior rooms of each apartment. As a matter of fact, they furnished little light or ventilation to any bedrooms below the top floor. The same type of air-shaft in taller tenements of Manhattan was one of the chief evils against which the new law was directed. These evils were undoubtedly less in a three-story building, but still existed. The minimum interior court or air-shaft permitted by the new law in such buildings was eleven feet wide by twenty-two feet long. Such a court prevented the building of this type of house, and no tenements of this type were consequently built on twenty-five foot lots from the time when the law went into effect. The Brooklyn bill sought to amend the law, as respects three and four-story houses, by permitting a return to the old air-shaft, with an increased width of six inches, and with a somewhat increased length, making it three by twelve. We conceded that under the law it was impossible to build this particular type of tenement on a twenty-five foot lot, with each apartment running through from front to rear, but we demonstrated that it was perfectly practicable to build what seemed to us a much better two-families-on-a-floor tenement on such a lot, by putting one apartment in the front and another in the rear; that it was perfectly practicable to build, under the law, apartments running through from front to rear on a somewhat larger lot, and that the law interfered with no other current type except the one in question. The separate front and rear apartments, which were practical under the new law, are usual in Manhattan, and the rent obtainable from the front apartment differs but little from that obtainable from the rear apartment. Our Brooklyn friends insisted that though Brooklyn was a borough of New York and only separated from Manhattan by the East River, Brooklyn people were so accustomed to apartments running through from front to rear that they would not rent rear apartments, and indeed, that the social distinction between families who could afford to live in the front apartment, and those who would be forced to live in the rear apartment, was so great that they would not rent apartments in the same house.

This proposition may seem strained, but we of the City Administration were finally satisfied that so much regard should be paid to local habits and customs, that it was wise to modify our minimum court areas in three-story houses to such a point as would permit the building of this particular type of Brooklyn house. Plans were then made which demonstrated beyond peradventure that by reducing the minimum court area to 8x14, instead of 3x12, this particular type of house could be built, with bedrooms infinitely better lighted and better ventilated than those opening upon the narrow shaft. One would have supposed that this improved plan, which permitted Brooklyn builders to construct a front-to-rear apartment, for which they claimed so many advantages, would have been received with acclamation as a solution of the difficulty. Not at all. Some insisted that Brooklyn must have what it was accustomed to, narrow air-shaft and all. Others more openminded, while frankly admitting that the new plans made better apartments, which should bring in an increased rental of from fifty cents to a dollar a month, insisted that tenants would not pay more rent, and that because the buildings under these new plans cost say $800 per house more than under the old plans, they would not be commercially profitable, and therefore would not be built. Not a word was said as to the interests of tenement dwellers. There was no dearth of apartments in Brooklyn at current-rents. Indeed, the supply was far beyond the demand. The whole issue turned on the commercial profitableness of building under the law, as amended by the City Administration bill, to meet this Brooklyn condition. The Brooklyn builders were perfectly frank in their arguments. They started with the premise that the building of tenements in Brooklyn must be made commercially profitable; that buildings under the new plan, with a minimum court area of 8x14, would not be commercially profitable, because about $800 was added to their cost, and therefore insisted that the law should be amended to meet their ideas of commercial profitableness. That the purpose of the law was not to promote building operations, or increase the value of real estate, but to provide healthy habitation for tenement dwellers, and that that purpose was certainly being accomplished under the new law so long as tenement dwellers could house themselves without any increase in rent, was ignored, nor if it had been urged would it have seemed to them an argument worth considering.

I am happy to say that they did not succeed, but they demonstrated the influence which can be exerted upon the average legislator by men of their type through their trade and allied labor organizations, and had those who, at the moment, represented the unorganized public in the cities been less active, and had the force of public opinion as voiced by the press been less outspoken, the result might have been different.

The advance of tenement house reform undoubtedly means some diminution in the profit of the landlord, or some increase in rent. Improved tenements must cost more. Someone must pay that cost. If any material rise in rents would produce such opposition to the law as to repeal or modify it, then either the cost must be borne by the landlord, or the law must be modified. Whether the landlord’s rent will by the law proposed in any city be diminished below the point of legitimate profit, cannot be certainly demonstrated until the experiment be tried. Some enlightened landlords, with a sense of their obligations toward their tenants, are perfectly willing to suffer this small diminution of income. Others are not, and the others, who usually constitute the majority, in alliance with the builders and material men, will always seek to prevent legislation which affects their pockets. Tenement house reform must always be militant, not only to gain ground, but to hold the ground that has once been gained.

There is something for almost everyone to do. Let none suppose that our cities, however small, will remain free from the evils of the tenement house, which in larger cities has necessarily evolved in self-protection tenement house regulation. The tenement has come to the United States, like the Canada thistle, to grow and to multiply. The smaller cities need not go through the bitter experience which is teaching New York and other cities their lesson. They can, by timely regulation, prevent the crystallization of unsanitary conditions into brick and mortar. I do not recommend the adoption in every city of the New York law. It was framed to meet the special conditions there existent. The remedy should be no greater than the prevailing or expected disease warrants. A few elementary regulations with regard to court areas, vacant spaces, and regular and official inspection to make certain that these simple regulations are followed in construction and that ordinary sanitary rules are complied with in maintenance, will suffice, if there always be a keen eye to look some years ahead, to meet future needs before they make themselves unpleasantly manifest in your own surroundings, and before conditions are created, as in New York, which cannot be changed except at great cost to owners and to the municipality.