3 ms·

It is confiscation of property, and an illegal one, since it's not for public use. Not allowing an owner to exercise all of his rights of ownership is a taking

It is confiscation of property, and an illegal one, since it's not for public use. Not allowing an owner to exercise all of his rights of ownership is a taking, even if it's not permanent. You see this often with construction projects that expropriate not only the title to land needed, but also temporary servitudes (leases) on adjacent land for site access or extra room for construction. Point being, the "temporary" nature of the order, and the fact that the landlord retains title/ ownership, doesn't preclude it from being an (un)constitutional "taking" of private property.

bronzeage 5y ago
It's kind of done for the public good. If it didn't happen, there's a chance the rent/housing market would spiral out of control along with the economy, dragging down the landlords with it.
DannyBee 5y ago
Most courts to consider it so far have not considered the state-level eviction moratorium laws to be a taking that is occurring without compensation. See, e.g., https://www.inversecondemnation.com/files/eviction-moratorium-decision.pdf https://www.inversecondemnation.com/files/eviction-moratoriu... (massachusetts) (A federal court also declined to block it) I am too lazy to look at all of them. The reason they are usually found not to be takings is twofold. First, they only prevent a specific type of relief. In most of them, nothing in them stops the landlord from suing for money damages, or even necessarily for breach of contract with ejection as a remedy. They only usually prevent you from filing eviction petitions. Second, they generally do not state that you are not owed the money, only that you may not temporarily collect it. https://www.law.cornell.edu/wex/takings https://www.law.cornell.edu/wex/takings goes through most of the current tests, and most moratorium rules fail them. For example, taking again the MA one: 1. It does not allow permanent physical occupation (they are temporary) 2. It does not cause loss of all beneficial/productive uses of the land (you are still owed the money, and in fact can sue for money damages) etc
philistine 5y ago
Where I live, a renting agreement is covered by certain government guarantees. For example, you cannot evict someone if they fail to pay, you need to obtain consent from a judge to do that. To my mind, if the government suddenly refuses to evict anyone for public health reasons, the taking of intangible property rights is minimal, non-discriminatory and justified. We’re at war with a virus here, some sacrifices will have to be made. If people can be evicted, more people will die than if they stay put.
- deleted 5y ago
  [deleted]
- 6510 5y ago
  We should make the virus pay for it.
- setr 5y ago
  >you need to obtain consent from a judge to do that. It's not that the judge needs to step in to decide whether failing to pay rent should result in eviction. It's that you can't forcibly evict someone as an individual (because forcible eviction can go nasty, from either party, very quickly, and historically abused). You need the judge to determine that it's now time to invoke the police to enact a forcible eviction, because the renter won't leave quietly/on his own. The judge does not determine whether the renter is qualified to live there despite not owning up to his side of the renter's agreement -- the judge determines whether the use of force is now justified. >To my mind, if the government suddenly refuses to evict anyone for public health reasons, the taking of intangible property rights is minimal, non-discriminatory and justified. But that's not the problem at hand. Any reasonable person over the last 1.5 years should have not paid rent, regardless of capability to do so, because the law guaranteed you couldn't be evicted for it (inability to pay was a qualification for the law, but it's hardly trivial to prove it wasn't covid-related). The worst case scenario is you have to pony-up when the moratorium expired (and did you really expect the majority of the population who couldn't pay rent, to suddenly have enough money to cover 1.5 years of rent? The government bailing them out was inevitable -- the alternative is a massive wave of backed-up evictions). Furthermore, you could barely even evict misbehaving tenants, let alone sufficiently-wealthy-but-not-paying, because the courts assumed it would fall under a covid eviction. The entire thing was a naively well-intended shitshow.
kayfox 5y ago
After Lech v. City of Greenwood Village I don't have any faith in any litigation going well for the people suing the government.

bronzeage 5y ago

It's kind of done for the public good. If it didn't happen, there's a chance the rent/housing market would spiral out of control along with the economy, dragging down the landlords with it.

DannyBee 5y ago

Most courts to consider it so far have not considered the state-level eviction moratorium laws to be a taking that is occurring without compensation. See, e.g., https://www.inversecondemnation.com/files/eviction-moratorium-decision.pdf https://www.inversecondemnation.com/files/eviction-moratoriu... (massachusetts) (A federal court also declined to block it) I am too lazy to look at all of them. The reason they are usually found not to be takings is twofold. First, they only prevent a specific type of relief. In most of them, nothing in them stops the landlord from suing for money damages, or even necessarily for breach of contract with ejection as a remedy. They only usually prevent you from filing eviction petitions. Second, they generally do not state that you are not owed the money, only that you may not temporarily collect it. https://www.law.cornell.edu/wex/takings https://www.law.cornell.edu/wex/takings goes through most of the current tests, and most moratorium rules fail them. For example, taking again the MA one: 1. It does not allow permanent physical occupation (they are temporary) 2. It does not cause loss of all beneficial/productive uses of the land (you are still owed the money, and in fact can sue for money damages) etc

philistine 5y ago

Where I live, a renting agreement is covered by certain government guarantees. For example, you cannot evict someone if they fail to pay, you need to obtain consent from a judge to do that. To my mind, if the government suddenly refuses to evict anyone for public health reasons, the taking of intangible property rights is minimal, non-discriminatory and justified. We’re at war with a virus here, some sacrifices will have to be made. If people can be evicted, more people will die than if they stay put.

deleted 5y ago
[deleted]
6510 5y ago
We should make the virus pay for it.
setr 5y ago
>you need to obtain consent from a judge to do that. It's not that the judge needs to step in to decide whether failing to pay rent should result in eviction. It's that you can't forcibly evict someone as an individual (because forcible eviction can go nasty, from either party, very quickly, and historically abused). You need the judge to determine that it's now time to invoke the police to enact a forcible eviction, because the renter won't leave quietly/on his own. The judge does not determine whether the renter is qualified to live there despite not owning up to his side of the renter's agreement -- the judge determines whether the use of force is now justified. >To my mind, if the government suddenly refuses to evict anyone for public health reasons, the taking of intangible property rights is minimal, non-discriminatory and justified. But that's not the problem at hand. Any reasonable person over the last 1.5 years should have not paid rent, regardless of capability to do so, because the law guaranteed you couldn't be evicted for it (inability to pay was a qualification for the law, but it's hardly trivial to prove it wasn't covid-related). The worst case scenario is you have to pony-up when the moratorium expired (and did you really expect the majority of the population who couldn't pay rent, to suddenly have enough money to cover 1.5 years of rent? The government bailing them out was inevitable -- the alternative is a massive wave of backed-up evictions). Furthermore, you could barely even evict misbehaving tenants, let alone sufficiently-wealthy-but-not-paying, because the courts assumed it would fall under a covid eviction. The entire thing was a naively well-intended shitshow.

kayfox 5y ago

After Lech v. City of Greenwood Village I don't have any faith in any litigation going well for the people suing the government.