Rent Control

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Please plan on joining us on Wednesday, July 22, 2020, at 1pm ET (10am PT) for a long-form program on “Emergency and Police Power: Property Claims in Times of Crisis.”

Our speakers are Professors Craig Konnoth (Colorado) and John Nolon (Pace), and one of the lawyers on the forefront of the nationwide legal challenges, Harmeet Dhillon (San Francisco). I’ll be moderating, along with Professor Sarah Adams-Schoen (Oregon).

Here’s the program description:

On the eve of the centennial of Pennsylvania Coal Co. v. Mahon (US 1922), this panel will revisit the question: How far can the police power be stretched to protect the public against dangers? The panel will evaluate the scope of state and local authority to respond to emergencies and the implications for private property rights—asking, how far is too far? What is the scope of implied limitations on private property rights in times of crisis? When…

Continue Reading July 22, 2020: “Emergency and Police Power: Property Claims in Times of Crisis” (ABA Webinar)

As we noted here, property owners sued the New York governor asserting that one of his emergency measures to respond to the coronavirus crisis (a suspension of eviction proceedings) is a taking.

Yesterday, the District Court denied the plaintiffs’ motion for summary judgment, and entered summary judgment in favor of the governor. Order Denying Plaintiffs’ Motion for Summary Judgment and Granting Defendant’s Motion for Summary Judgment, Elmsford Apt. Assocs., LLC v. Cuomo, No. 20-cv-4062 (CM) (June 29, 2020).

No physical take (see Yee: you invited the tenants in, owners). And no regulatory taking either because — you guessed correctly — this is “temporary” and Tahoe-Sierra. When this is all done, no-harm, no-foul. And not a Lucas taking because the restrictions left the owners with some use and value, so this is a Penn Central analysis. And you can guess where the Penn Central analysis leads, no?…

Continue Reading SDNY: No Taking For NY’s Eviction Moratorium (It’s Temporary, And You Invited Them In Landlords)

104481738_2170057539806372_2938554143515873721_nphoto: Patricia Salkin

Just published: the 2020 Zoning and Planning Law Handbook (Green Book). The first section of the Summary of Contents is about Takings, and includes as the lead piece Professor Gideon Kanner and Michael Berger’s tour-de-force article, “The Nasty, Brutish, and Short Life of Agins v. City of Tiburon.” It also includes my articles on Murr, “Restatement (SCOTUS) of Property: What Happened to Use in Murr v. Wisconsin?”

Check it out. The Green Book is a one-stop shop for the best articles on land use in a given year, and this edition includes chapters on housing, agriculture, cell tower placement, RLUIPA, and (of course) zoning.

Our thanks to Dean Patty Salkin who edited the volume for including us.

Summary of Contents, 2020 Zoning and Planing Law Handbook (Green Book)

Continue Reading Available Now: 2020 Zoning and Planning Law Handbook (Green Book)

Here’s the latest lawsuit challenging a government’s response to the coronavirus pandemic. This one challenges the California Judicial Council’s Emergency Rule 1, which indefinitely closed the courthouse doors to eviction proceedings (what California calls “unlawful detainer”).

This one does not employ a takings rationale, but takes a separation-of-powers approach. It’s concisely drafted, so we recommend you read the entire document. 

Here’s the Introduction:

On April 6, 2020, the California Judicial Council responded to the coronavirus pandemic by issuing 11 emergency rules of court. Among these was Emergency Rule 1 (“ER 1”), which violates the fundamental rights of property owners by indefinitely suspending their right to initiate unlawful detainer actions. The rule creates the perverse incentive for all tenants, whether they face financial hardship or not, to refuse to pay their rent during the crisis. And it immunizes from eviction even tenants who create nuisances, damage property, conduct illegal activity…

Continue Reading New Lawsuit Challenges California’s Indefinite Eviction Moratorium

Here’s the latest complaint challenging coronavirus-related orders (in this case, the City of Los Angeles’ rent payment and eviction moratoria) as a taking.

More here from the LA Times: “Landlord group sues city of L.A. over coronavirus anti-eviction protections.”

You should probably read the entire document, as it is drafted well. But it is long (48 pages – it even has a Table of Contents and a Table of Authorities), so here are the key parts of the Introduction in case you don’t have time to digest the whole complaint:

1. In the wake of the novel coronavirus, Defendants City of Los Angeles, City Council of the City of Los Angeles, and Mayor Eric Garcetti (collectively “City” or “Defendants”) hastily instituted a series of ordinances which prohibit lessors and landlords, such as Plaintiff’s members, from exercising their contractual remedies where tenants refuse to pay rent on the…

Continue Reading New Fed Ct Complaint: Coronavirus Rent Freeze And Eviction Moratorium Is A Taking

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Next Wednesday, June 17, 2020, at 5:30pm Hawaii Time, we’ll be speaking for the King Kamehameha V Judiciary History Center about “Constitutional Law and States of Emergency: Lessons from the COVID-19 Pandemic.”

This is a one-hour program, open to the public, where we will take a dive into Hawaii’s emergency preparedness and response laws, how Hawaii’s courts have treated emergencies, plagues, pandemics, and quarantines in the past (we have a long history there), and respond to (moderated) audience questions.

Space limited to 100 attendees, although it will be recorded and posted on the Center’s YouTube channel. Here’s the program description:

The King Kamehameha V Judiciary History Center invites you to join our live webinar with attorney Robert H. Thomas as he shares his expertise about constitutional rights and civil liberties during the COVID-19 pandemic. He will share lessons from Hawaiʻi’s history of public health laws during…

Continue Reading Upcoming Judiciary History Center Program: “Constitutional Law and States of Emergency: Lessons from the COVID-19 Pandemic” – Wed., June 17, 2020, 5:30pm HST

Here’s the latest complaint that alleges a taking arising out of the coronavirus situation. It joins a long list of similar lawsuits (See here, here, here, here, here, here, here, here, here, here and here, for example.

This one challenges the State of New York’s executive order that bars property owners from pursuing residential evictions for nonpayment of rent and requires the owners to apply security deposits towards rent.

Some interesting elements in the case:

  • The complaint was filed in federal court against the Governor.
  • It avoids the Eleventh Amendment issue by not seeking compensation, only declaratory and injunctive relief.
  • Does that raise the issue of whether such relief is available for a taking?

Stay tuned, this isn’t going to be the last of these things. We wrote up how we think these type of claims should be handled…

Continue Reading Latest Coronavirus Complaint: NY State’s Order Suspending Evictions Is A Taking

Our shut-in time has got us to thinking.

We’re all environmentalists now. This is the precautionary principle writ large. In a way, this is only part of a greater problem.

Welcome to the Twitterverse. We now have access to a vast amount of data — very often on a granular level — and this moves faster than the ability

Americans like to work

Americans are pretty wiling to give our elected leaders a lot of slack

playground Constitution has serious legs

Most don’t understand that their rights are, in normal time, highly restricted, at least in courts

takings lawyers are not really surprised as everyone else – we’re used to courts deferring to what may look like excessive and unwarranted assertions of governmental power. Unlike a lot of other litigation involving the government, representing property owners in eminent domain or takings cases

basic takings doctrine is really incoherent

we already…

Continue Reading Things I’ve Learned (Am Learning) About #CoronavirusLaw

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This fall, we’ll be back at the William and Mary Law School (hopefully in-person, depending on the circumstances and the yet-to-be-announced approach to be taken by the College of William and Mary), teaching two of our favorite subjects.

Not only will this be the third time leading Eminent Domain and Property Rights (Law 608), but we’ll also be undertaking another subject, Land Use Control (Law 425). This semester, we’re stepping into the (big, figuratively speaking) shoes of Professor Lynda Butler who recently retired after a stellar and trailblazing career. Thankfully, Lynda is continuing to lead the Brigham-Kanner Property Rights Project and is underway with planning October’s Brigham-Kanner Conference, honoring Harvard lawprof Henry Smith.

Land Use is, of course, related to Eminent Domain and Property Rights, but the law school understands that they are each worthy of separate study, and they should not be folded into a single course (or…

Continue Reading Land Use Also On The Fall Semester Agenda At William And Mary Law

Here’s another coronavirus-related complaint asserting a taking.

But unlike other, recently-filed complaints (see here, here, here, here, here, here and here), this one doesn’t object to shut down orders. Instead, it challenges two measures undertaken by local authorities related to the owner/tenant relationship.

To deal with the pandemic, Union City, New Jersey adopted two ordinances. First, for units already subject to the city’s rent control ordinance, it froze rents retroactive to March 1, 2020. Second, it froze all evictions. These, according to the Complaint, are takings. Here are the allegations:

78. Plaintiff repeats and realleges the previous allegations as if fully set forth herein.

79. By adoption of the Freeze Ordinance, Plaintiff and its members have been deprived of their vested contractual and property rights without due process of law or adequate compensation in violation of the United States and New Jersey Constitutions.

80. …

Continue Reading Yet Another Coronavirus Complaint: Eviction, And Retroactive Rent Freeze In Rent-Controlled Apts Is A Taking