In Defense of the Landlord: A New Understanding of the Property Owner

I. Introduction

People are out there hoarding hand sanitizer.

They’re driving the prices up because they’re buying all of it. Now they’re reselling it for higher and higher prices and making huge profits. Some of them are charging ridiculous prices just to let other people use it. So now there are people who can’t afford it even if some is available, because it costs so much. People are getting sick and dying because they don’t have any!

Oh wait. Did I say hand sanitizer? Housing. I meant housing. Damn autocorrect.¹

With rent prices skyrocketing and affordable housing in high demand, legislatures and advocates naturally focus on establishing, promoting, and protecting tenant rights. A recent example is the rush to pass tenant-protective legislation in the wake of COVID-19 when emergency measures were tailored to protect tenants while leaving property owners with fewer protections and less support, many struggling as they wait in line with businesses from various industries to collect government subsidies.² Generalizations, including the hand sanitizer quote above, are dangerous because they imply that institutional investors own the vast majority of rental properties given that only a massive business entity can “hoard” large numbers of residential units. In reality, nearly half of all rental units within the United States are owned by individual or “mom and pop” owners, who own an “average of two units each, many with just one unit.”³

Suitable, affordable rental housing remains in short supply,⁴ and the notion of the “greedy” property owner, charging the highest rent the market will bear while spending the least amount possible to maintain tenant units, is prevalent.⁵ Landlord-tenant laws have been criticized as being overly tenant-protective, placing the tenant’s interest over the property owner’s investment, presuming it is the tenant, with the least bargaining power, who requires protection.⁶

This article is in defense of the landlord. The property owner is one of many market participants in the heavily regulated business of housing, which encompasses both residential property sales and leasing. Although the landlord is in the business of real estate, and some of the more experienced property owners may have more knowledge about the law and market conditions, more bargaining power, and exclusive control of the desired commodity, the tenant cannot be presumed to be the faultless victim of circumstance. Savvy tenants have capitalized on well-intended rent-control ordinances to fraudulently take or maintain possession of units at the expense of property owners, both large and small. For example, New York, seeking to preserve the creative culture of Manhattan, imposed rent control on work-live artist lofts throughout the city.⁷ While many artists continue to work and live as intended in these spaces, many have taken advantage of the mandated low rents, subleasing them to others at a profit,⁸ renting them out on Airbnb,⁹ or using them as an office and living elsewhere,¹⁰ in violation of the terms of the ordinance.¹¹ Each unit rents for thousands of dollars per-month below market level.¹² Extrapolated out for a large building, the result is that the landlord may face rising maintenance costs and property taxes, with little to no commensurate increase in rental income, frequently operating at a loss.

Generally, under rent-control regulations, a baseline rent is established when the resident first takes possession of the property.¹³

Rent increases may then be allowed upon a change in ownership of the apartment unit, upon the completion of certain necessary improvements, upon some formula that reflects the increasing costs of maintenance and repair, upon some general rule that is tied to the consumer price index or any other neutral yardstick, or even upon proof of tenant or landlord hardship.¹⁴

Far from a perfect system, scholars have described the concept of rent control as both a general theory, and as applied to particular communities, describing, for example the “oddities, favoritism, intrigue, and corruption of New York’s system of rent control.”¹⁵

The nomenclature currently defining the landlord-tenant relationship is both generalized and antiquated, failing to acknowledge the evolution of the legal rights and duties of the parties to a residential lease. In this article, we will refer to the residential landlord as the property owner, as the owner is no longer the “lord of the land.”¹⁶ Additionally, although they are notably different, because the focus of this article is on the broader theories, when discussed in general, this article will refer to rent control and rent stabilization collectively as “rent control.”¹⁷

This article will first discuss regulating the business of housing, including data regarding the attributes of housing units and property owners. This article next explores problems challenging individual property owners, assessing affordable-housing requirements and rent-control ordinances in large metropolitan areas. What follows is an examination of the history of the term landlord, as well as the landlord’s rights and duties as originated in feudal times. As landlord tenant law has evolved, so too has the constitutional debate surrounding rent control, discussed in the subsequent section. Finally, the article addresses the challenges faced by property owners in the wake of COVID-19, which has prompted governments to prohibit evictions and require the acceptance of delayed rent.

II. Regulating the Business of Housing

The business of housing is like many other industries with market participants of varying sizes, ranging from individual owners to large corporations. At the time of the 2015 American Housing Survey, a HUD-sponsored biennial national housing survey,¹⁸ there were over 48 million rental units in the United States,¹⁹ and 43.9 million units situated within 22.5 million properties were occupied.²⁰ The owners of these units were divided into two major categories: “individual investors” and “business entities.”²¹ Individual “mom and pop” investors owned 22.7 million units within 16.7 million properties, primarily single-family and duplex homes.²² Business entities own the remaining 25.8 million units, many in larger multi-family complexes. In contrast to the narrow subset of population that rent control seeks to protect, the imposed controls and limitations apply to all actors in the marketplace, large and small, individual and corporate.²³

The “landlord” or property owner is a market participant in the highly regulated business of housing. Regulation is expected in the business of housing, just as in other industries that directly touch and concern human health and fundamental rights,²⁴ such as the food industry, the medical field, law, and pharmaceuticals. Rent control falls within the realm of residential landlord-tenant law, which is based, in part, on the Uniform Residential Landlord Tenant Act (URLTA) of 1972, drafted by the National Conference of Commissioners on Uniform State Laws in an effort to define and standardize the rights of tenants and the responsibilities of landlords nationwide.²⁵ The URLTA was not a law, but rather a proposal to the states.²⁶ The states had the power to adopt all, part, or none of the URLTA, which has been adopted in only some states.²⁷ As a result, there is great disparity in the requirements imposed by the various states as it relates to the landlord-tenant relationship generally, and rent control specifically.²⁸

The existence and content of rent-control and rent-stabilization statutes vary widely across the United States.²⁹ As of September 2020, six jurisdictions have statewide or local rent control: California, New York, Oregon, District of Columbia, New Jersey, and Maryland.³⁰ Thirty-one states preempt local governments from imposing rent control, and nine states have no rent control or preemptions.³¹ Five remaining states have adopted Dillon’s Rule, which requires states to explicitly grant rent-control powers to local governments, although none of these states have affirmatively granted that power.³²

California has enacted the most recent statewide rent-control laws. On October 8, 2019, California Governor Gavin Newsom signed The Tenant Protection Act of 2019 (Assembly Bill 1842), limiting year-over-year rent increases to 5 percent plus inflation, effective January 1, 2020, until January 1, 2030.³³ New York’s Housing Stability and Tenant Protection Act of 2019 (HSTPA) was also enacted in 2019 to address perpetual housing shortages.³⁴ The law was widely criticized for its indirect impact of benefiting high-income residents, as illustrated in a Wall Street Journal article asserting that New York’s “rent-stabilization laws never targeted low-income populations and instead frequently benefited wealthy individuals more than anyone else.”³⁵ Critics argued that the 2019 amendment only widened the “benefit gap [] by removing previous exceptions that allowed landlords to charge market rates for tenants earning more than $200,000 or living in luxury apartments.”³⁶ These changes did not apply to New York State government housing, which is more effective at ensuring that affordable housing goes to those in need by requiring an Annual Recertification of Income.³⁷ Critics lamented that “[a]s a result, more than 37,000 additional rent-stabilized units will be occupied by individuals who don’t need the public to subsidize their rent.”³⁸ A particularly egregious example of rent-control abuses is illustrated in the case of actress Faye Dunaway, who maintained a rent-controlled unit in Manhattan, while also owning a residence in California.³⁹ Although her landlord was able to prove that she was not using the unit as her primary residence and successfully evict her, she has been regarded as “the picture perfect example of a financially undeserving tenant occupying a rent-regulated apartment.”⁴⁰

Legislators in Oregon, D.C., New Jersey, and Maryland have acted to enact similar legislation. Unfortunately, the problem of unaffordable housing persists despite legislative enactments, and it may be time to look beyond the property owners as the single-party solution to unaffordability in housing, and instead identify and address the root causes of unaffordable housing.

A. Expansive Government Intervention in the Housing Industry During COVID-19

Indisputably, rent has been historically unaffordable for a large percentage of the rental population.⁴¹ This unaffordability has magnified to crisis levels in the wake of the COVID-19 pandemic when 36 percent of renters were unable to make their housing payment in July 2020.⁴² Notably, missed payments were concentrated among “renters, young and low-income households, and residents of dense urban areas.”⁴³ A shocking 40 percent of renters under 30 and renters making under $25,000 annually missed their July 2020 rent.⁴⁴ Inability to pay rent is “correlated with population density, and in medium- and high-density areas where the early spread of the virus compounded the existing stress of high housing costs, over one-third of residents are still finding it difficult to pay their bills.”⁴⁵ Interestingly, renters in multi-family buildings have less trouble paying rent, with 28 percent of residents in buildings with 50 or more units unable to pay rent compared to 38 percent of renters in single-family homes.⁴⁶ This inability to pay rent disproportionately impacts the individual or “mom and pop” property owners who are less able to absorb losses than corporate owners of large buildings containing multiple rental units. Given that small-time, individual property owners collectively own almost half of rental units within the United States, the inability of tenants to pay rent presents an endemic crisis to property owners and tenants alike.⁴⁷

Prior to action taken by the Centers for Disease Control and Prevention (CDC) placing a four-month ban on evictions,⁴⁸ it was estimated that “[a]s many as 23 million renters could be evicted by the end of September [2020], according to the COVID-19 Eviction Defense Project, with Latinx and Black renters affected the most.”⁴⁹ The CDC imposed the drastic eviction moratorium in the face of the looming housing crisis induced by COVID-19 after many called upon the government to impose and extend eviction moratoriums.⁵⁰ The background accompanying the CDC notice explains “[i]n the context of a pandemic, eviction moratoria —like quarantine, isolation, and social distancing —can be an effective public health measure to prevent the spread of the communicable disease.”⁵¹ In the findings and actions required under the moratorium order, the CDC declares that the order is a “necessary measure under 42 CFR 70.2 to prevent the further spread of COVID-19 throughout the United States.”⁵² The CDC has placed the burden of mitigating the spread of COVID-19 on property owners, who otherwise would have had the legal right to pursue eviction. How then will the mom and pop property owners, who may be dependent upon the rental income for their own living expenses, get by?⁵³

Supporters of eviction moratoriums largely ignore the impact on residential rental property owners and warn against an uptick in evictions (lawful or not) if they are not imposed.⁵⁴ “When Wisconsin lifted its state moratorium on rent increases in May, Milwaukee saw a 13% increase in eviction cases by the end of June, two-thirds of which were in majority Black communities.”⁵⁵ As noted by Peter Hepburn, a researcher at Eviction Lab-Princeton University, “[e]victions disproportionately target Black renters, especially Black women with children.”⁵⁶ For this reason, “[a] wave of eviction serves to exacerbate entrenched racial inequalities in this country.”⁵⁷ Hepburn further explained that the entire rental housing market could be undermined by a surge of evictions, which would “make the Great Recession look insignificant.”⁵⁸ Evicted tenants face an eviction “ripple effect” that may outlast the pandemic. “Evictions inhibit your ability to find future housing, they spoil your credit, they often lead to job loss, they can exacerbate health problems, and lead to increased reports of stress, depression and suicidal ideation.”⁵⁹

Property owners are also facing unprecedented times. As highlighted by a recent NPR article, “it’s intense for landlords, too. Many have mortgages on their properties. If they aren’t paid the rent they’re owed, they could default on their loans and possibly lose their businesses. Small operations could lose their livelihoods.”⁶⁰ In the NPR article, Vanek Smith interviews Sterling Lunsford, the occupant, and Gary Zarumba, the property owner. Sterling contracted COVID-19, and Gary has done all he can to support Sterling, telling him “[D]on’t worry. You just take your time. Get it together. We know you’re under a lot of pressure . . . .”⁶¹ Gary even allowed Sterling to use the office printer and fax machine to apply for unemployment. Gary remarked, “you know, we’re the landlords, but we’re also people. And we want to make sure that, you know, we’re taking care of our tenants in the ways that we can.”⁶²

Sterling and Gary are in this weird position, where they are both suddenly depending on the government for their livelihoods. The government ordered an economic shutdown, which cost Sterling his job. And now Sterling is waiting on the government to pay him the unemployment he was promised by Congress in the CARES Act. Gary is waiting for that money in the form of Sterling’s rent and the rent of his other tenants to be able to pay his mortgage to the bank. And the bank is waiting on that money. And investors are waiting on that money. And the entire economy is kind of waiting on that money to stabilize the millions of businesses and people who have all had their lives turned upside down by the coronavirus pandemic.

One rent check is kind of a link in a chain that connects the entire economy.⁶³

Critical of the eviction moratoriums, landlords are concerned that “people will get the message that rent is optional” and stop paying rent, even if they have the funds.⁶⁴ Gary Zarumba echoes the concerns of many property owners, explaining:

You’re asking me as a private sector to become part of the public sector by providing free housing. That’s kind of what’s going on because we don’t want people evicted. They have no place to go. They end up homeless or on a neighbor’s couch, et cetera. So I understand the concept. But I’m being asked to do the job of the government, and I’m not getting reimbursed for it. So some folks are just not paying their rent because they don’t have to. They know they’re not getting evicted.⁶⁵

When thinking about the landlord-tenant relationship, it is simple to envision the tenant as an individual, with less bargaining power than the landlord, who is frequently depicted as a wealthy property owner or large business entity, passively enjoying a monthly positive cash flow—a veritable David and Goliath in the residential housing arena. But what happens when “Goliath” is a “David,” too?

B. Balancing the Hardships Imposed by Housing Unaffordability Legislation on Owners and Occupants

The requirements imposed on the business-entity landlords frequently apply equally to the individual “mom and pop” property owners who may be renting out just one or a handful of units, relying on the rents for income, or maintaining them as their retirement nest egg.⁶⁶ With “between 10 million and 11 million individual investor landlords managing an average of two units each, many with just one unit,” the burden of dealing with heavy-handed regulations cannot be balanced by the economies of scale attendant to multiple-investment property ownership.⁶⁷

Many rent-control regulations incorporate some protective provisions, such as allowing an incremental rent increase to offset the cost of capital improvements,⁶⁸ or allowing a property owner to dispossess a tenant to move in an immediate family member.⁶⁹ Unfortunately, these provisions are frequently inadequate to protect a rental-income-dependent landlord from tenant abuses.⁷⁰

C. Economic Impact of Price Controls

Rent control is a form of price control, which has been heavily debated and often litigated. The Supreme Court first “formulated the constitutional problems raised by government price control” in the 1876 case of Munn v. Illinois.⁷¹ Often, when the government imposes price controls, it is to address a public interest related to health or the economy.⁷² Here, the public interest attendant to unaffordability in housing implicates both. In the 1970s, the U.S. government set price controls on a number of products and services, the most newsworthy of which was oil.⁷³ The price controls affected the supply and demand of the goods and the results were negative, reducing supply and raising demand, resulting in economy-crippling shortages.⁷⁴ Price controls in residential leases may have a similar effect.⁷⁵

III. Understanding the Problem—The Property Owner as the Flawed Solution to Unaffordable Housing

Consider the story of Irwin O., the son of Polish immigrants who came to America in pursuit of the American dream.⁷⁶ His parents carved out their slice of Americana by owning and operating a small supermarket in Brooklyn that was open for more than 40 years. From an early age, Irwin was taught that if he worked hard enough in this country, he, too, could succeed in this land of opportunity. America is also the home of the brave, and Irwin fulfilled his civic duty and enlisted in the Army Reserves. He later married, and, at the age of 28 in 1971, he fulfilled his dream of owning and operating a small business. “My parents always said ‘best to own, than rent. Who needs the hassle of landlords!’” He trailed off with a long pause and then looked up and said, “little did they know.”⁷⁷

Irwin had already been a broker for the printing industry, and the thought of creating a more efficient system with faster service by owning and operating his own location was the dream. After scouting locations, he believed that he had stumbled on the perfect spot: a building that formerly housed a spring manufacturing company. The realtor and prior owners told him the building was perfect. The building would be an investment in his future, a future where he would have roots and income for years to come, and it would be a nest egg like no other. For the business savvy, investing in real estate is never wrong.

Irwin stood at the door of a building in the heart of Chelsea in Manhattan, New York. Staring up at the building, he imagined what could be. As he pulled the door open, he felt the tinge of cold metal move up his hand and along his arm, invigorating him. The brightness of the hallway solidifies his belief that he has made the right choice for his future. Irwin describes this moment as the turning point in his life “opening the door to endless possibilities . . . it was a joyous moment.”⁷⁸

The building was a modest one compared to the towering giants that dotted the New York skyline. It had four units occupied by residential tenants above a commercial space on the ground floor. He scraped together every last cent that he had, borrowed from his family and friends, and mortgaged the rest. He purchased the building for $215,000, which was not inexpensive at that time. Irwin housed his printing business on the ground floor and intended to use rent from the four rental units above to help pay the bills. Although a large purchase, Irwin viewed the property as a retirement investment.

In 1973, the residential tenants asserted that the units were protected from rent increases under artist loft laws.⁷⁹ These laws were not in effect when Irwin purchased the building. From 1971–1973 when litigation began, Irwin collected $100.00 per month from each tenant for rent. After years of no rental revenue and almost $250,000 in legal fees, the building transitioned to a rent-stabilized⁸⁰ property. In order to pay the mortgage he used earnings from the commercial business while his tenants lived for free, withholding rent for years.

By 1995, none of the tenants had paid rent for 15 years. Of the four tenants, one was living in Atlanta, Georgia, a second was living in Maine, and a third tenant was living in another unit around the corner on 19th Street. Irwin forgave the rents for the unpaid units and paid additional monies so the tenants would agree to vacate the property.⁸¹ The remaining tenant pays $1,400 per month for an apartment with a $6,000 market price, in one of the most sought-after neighborhoods. This tenant has two houses outside of the city, and when Irwin offered a buyout for $300,000, the tenant scoffed at the notion, returning with a $2,000,000 counteroffer. After owning rental property in Manhattan for almost 50 years, Irwin continues to incur losses on the property after maintenance, taxes, and other expenses as a result of rent control.

After the buyouts I kept two of the apartments vacant for two years as I did not want to fall into the same issues I had already faced. The way the law is designed is that Landlords must enter into two-year leases with tenants, but every year the state renews the rental laws, never giving us an opportunity to increase rents and keep up with cost of living expenses. This is an oppressive system. All the while I have to pay property taxes and maintain the building and units. Didn’t anyone ever wonder how the people in Friends⁸² afforded their apartment? It makes me so angry. The law really stifles us in so many ways. We are made out to be the bad guy, meanwhile I work hard and do all the things right, and yet I am not protected. This guy who owns other properties, is certainly not poor, is taking what is rightfully mine and then has the audacity to ask for millions of dollars to buy him out. Isn’t that extortion, by any other standard? Do you get how absurd that is, he is a renter, he doesn’t own the apartment and yet I can’t get him out? Had I known this would be my life, I would have never purchased all those years ago.⁸³

Irwin’s story is just one of many⁸⁴ since New York City’s housing stock is predominantly renter-occupied, rather than owner-occupied. According to the Census Bureau’s 2017 New York City Housing and Vacancy Survey, almost 63 percent of the housing is rental, compared to around 37 percent across the U.S. Of the 2,183,064 rental units in New York City, only 42.9 percent are unregulated. Almost 22,000 housing units are rent-controlled and almost 1,225,000 units are rent-stabilized or rent-regulated apartments.⁸⁵ Median regulated rental rates in New York City are 53 percent below the median market rates.⁸⁶

A. A Property Owner Has the “Right to Possess, Use, and Dispose”87 of Property—Unless the Owner Is a Rent-Controlled Landlord

Property ownership has been succinctly, yet broadly, defined as the right to “possess, use and dispose of it.”⁸⁸ The rights conferred upon owners coming into possession of real property are commonly characterized as a collective “bundle of rights”⁸⁹ with each right signified by a distinct “stick” in the bundle.⁹⁰ These sticks include the right to control,⁹¹ cash flow,⁹² security,⁹³ water rights,⁹⁴ mineral rights,⁹⁵ air rights,⁹⁶ easement rights over servient estates,⁹⁷ and the right to possess the property to the exclusion of all others.⁹⁸

A landowner’s right to exclude others has been recognized as “one of the most essential sticks in the bundle of rights.”⁹⁹ However, rent-control legislation limits, and frequently eliminates, a landlord’s right to exclude, sometimes requiring lease renewal in perpetuity, with legacy rights, and allowing the eviction of tenants under only the rarest of circumstances.¹⁰⁰

The Supreme Court has observed, “[i]t seems to us that the property owner necessarily expects the uses of his property to be restricted, from time to time, by various measures newly enacted by the State in legitimate exercise of its police powers.”¹⁰¹ While property owners, indeed, may necessarily expect regulation governing the use of real property, the extent to which the State should be legislating, especially in the context of the landlord-tenant relationship, is debated and voted upon often.¹⁰²

B. Lord of the Land? Dethroning the Modern Property Owner

Once a lord over the land that they owned, the rights and adulation of the modern property owner have been slowly stripped away with increasing regulation. The term “landlord” originated during a time when the subject matter at issue was the actual land—the dirt—that the tenant sought for purposes of establishing a farm and home, both at the tenant’s sole expense. The owner, as lord of the land, provided only possession and permission to locate on the property. The tenant was solely responsible for erecting and maintaining a home and farming or otherwise utilizing the land. Today, the landlord and tenant operate under entirely different circumstances. Their relationship is purely dependent upon the nature of the property as a safe, habitable structure within the built environment. The landlord is now a participant in the business of housing, not of permitting occupancy and management of one’s own dirt.

The first known use of the term “landlord”¹⁰³ predated the 12th century during feudal times.¹⁰⁴ “Feudalism was based on a system of tillage, where landlords of large properties subdivided their land into small parcels which were then farmed by serfs¹⁰⁵ or tenants.”¹⁰⁶ The tenant/serf cultivated the land of its natural resources and provided the harvest in exchange for the right to possess¹⁰⁷ the farm property. “The tenant/serf lived in a virtual state of slavery; they worked for the lord and in return received support from the lord, but in effect they were the property of the lord of the land, who could dispose of them by sale or gift.”¹⁰⁸ The tenant/serf was bound¹⁰⁹ to the land for life, and the lord of the land had no responsibility towards the actual home of the tenant/serf. The tenant/serf erected the structure on the land in which they were to live. In addition, the landlord had no obligation to provide upkeep, maintenance, or repairs to the home. Ensuring habitability was the responsibility of the tenant/serf, not the landlord. If for any reason the structure built by the serf/tenant was destroyed, the rent was still due.

For centuries and across the pond in the United States this practice held true, but it has long since evolved. In those early years, the land was recognized as the most important part of the leasehold, and even if any building on the land was destroyed, the tenant’s obligation to pay rent was not forgiven under the common law.¹¹⁰ By this reasoning, a tenant in an upper-story apartment would be required to continue to pay the rent, even after the apartment building burned down.¹¹¹

By the late 1800s, the courts started to recognize that “the factual assumptions of the common law were no longer accurate in some cases.”¹¹² In 1863, the Court of Appeals¹¹³ of New York did away with that notion, declining to hold that an upper-story tenant was obliged to continue paying rent after his apartment building burned down.¹¹⁴ “[T]he urban tenant had no interest in the land, only in the attached building.”¹¹⁵ The focus of the leasehold estate had shifted from the bare dirt to the amenities of the built environment.

Modern-day urban tenants are not the multi-faceted, skilled laborers of the past. They live in multiple-unit buildings that they did not construct, and they rarely “have the skills to deal with major problems in the heating, plumbing and electrical systems, nor with structural defects.”¹¹⁶ In the 1960s and 1970s American landlord-tenant law underwent a revolution.¹¹⁷ “To many, the essence of the change has seemed to be that the basis of lease law has shifted from principles of property to principles of contract.”¹¹⁸ Kings would no longer bestow land to anyone who would pledge fealty and military service,¹¹⁹ and serfs no longer worked the land in exchange for food and shelter.¹²⁰ The term “landlord”¹²¹ echoes a distant and outdated past, its rights and duties antithetical to the modern property owner. The importance of language and word choice has been a highlight of recent news with major companies reexamining the branding and naming of their products to be more in line with modern values.¹²² Labels are now approached with increasing scrutiny. Similarly, the business of housing has changed and so have its market participants. The terminology, however, remains static, and with increasing regulation and price controls, the term “landlord” has evolved from a label to a misnomer.

C. The Modern Tenant—From Serf on the Land to Occupant of the Asset

Above we explore the narrative around the landlord-tenant relationship, and we note that it has failed to evolve lockstep with economic and social conditions now predominating the business of housing. Tenants no longer till a landlord’s soil. Rather, tenants establish homes in assets within the built environment, which property owners have chosen to introduce into the housing stream of commerce. The tenant no longer plays an active role in farming or generating consumable goods on the property, but rather only plays the passive role of enjoying the property’s benefits.¹²³ The behavior of the parties has changed, the currency has changed, but the vernacular, and its attendant connotations, have remained.

Although there is some socio-economic diversity within the category of the modern tenant, many tenants face real struggles within unaffordable housing markets. Rent control has not solved this problem. The U.S. Department of Housing and Urban Development estimates that “12 million renter and homeowner households now pay more than 50 percent of their annual income for housing.”¹²⁴ Painting a stark picture, the National Low Income Housing Coalition states, based upon HUD fair-market rental rates, that “[i]n no state, metropolitan area, or county in the U.S. can a worker earning the federal or prevailing state or local minimum wage afford a modest two-bedroom rental home at fair market rent by working a standard 40-hour work week.”¹²⁵ Struggling to pay rent imposes a hardship on tenants with negative impacts extending well beyond their bank accounts.¹²⁶ Experts have noted that “[c]ompared with working families in more affordable housing, families that pay more than half of household expenditures for housing reduce expenditures for other essentials such as food, clothing, and healthcare.”¹²⁷ These spending habits lead to poor physical and mental health, including depression in mothers and an increased risk of suicide,¹²⁸ and to negative outcomes for children, decreasing academic performance and increasing the likeliness of dropping out of school.¹²⁹

IV. Constitutional Questions Raised by Rent Control

The United States Constitution explicitly protects property interests against government infringement. As described below, America’s founders emphasized and protected individual property rights from the outset.

[T]he importance of individual rights in property predated the Declaration of Independence and the American Constitution. Blackstone noted that property is an “absolute right, inherent in every Englishman . . . which consists of the free use, enjoyment, and disposal of all his acquisitions, without any control or dominion, save only by the laws of the land.” From the pronouncement that “a man’s house is his castle” to William Pitts’ argument that the “poorest man” in the meanest hovel can deny entry to the King, the common law recognized the individual right in the ownership and use of private property. Blackstone captures the essence of this right when he notes that the right of property is the “sole and despotic dominion . . . over external things of the world, in total exclusion of the right of any other person in the universe.” The individual rights in private property are part of the common law heritage that our founders brought with them to America . . . .¹³⁰

Despite the entrenched history of protection afforded to property rights, property owners have faced increasing regulation directly impacting their ability to earn income and recover possession of their property.¹³¹ Property owners have argued that the imposition of rent-control legislation constitutes unlawful takings, has deprived them of due process, and has impaired contract obligations.

A. Property Owners Argue Price Ceilings and Succession Rights Are Unconstitutional Takings

Many participants in the business of housing are experiencing increasingly financially unsustainable outcomes related to increasingly restrictive legislation.¹³² Many have argued that these laws deprive a land owner of “due process” guaranteed by the Fourteenth Amendment,¹³³ and represent an actual expropriation of their property without compensation in violation of the “takings” clause of the Fifth Amendment¹³⁴ because, at the very least, these legislative restrictions require permanent physical occupation of the property. For example, New York State allows for succession to a tenant’s spouse, child, sibling, or grandparent, and to step-children, parent-in-laws, and other “family-like relationships.”¹³⁵ These succession rights almost guarantee an unlimited and permanent occupation of the property, transferring the right from the original renter to whomever fits the “family-like” threshold.

Most states follow the Uniform Probate Code (“UPC”), the statutory inheritance model, developed specifically to protect the succession rights of the “nuclear family”¹³⁶ and not loose connections that can take any form and go on in perpetuity. Although the traditional notions of nuclear family have changed and the UPC has evolved to reflect those changes,¹³⁷ New York for example, maintains that tenants continue to hold succession rights for property that the tenant does not own.¹³⁸

Imagine the following scenario:

If the state moved A out of a $100,000 house, it could not satisfy its constitutional obligation by paying A $60,000 in exchange: it would still owe $40,000. Now assume that this same house rented for $10,000 per year. The state cannot escape paying A only $6,000. The state has short-changed the landlord $4,000 per year, even if the tenant’s credit is impeccable. If the lease is renewable in perpetuity, the shortfall over time amounts to the same $40,000 that it is with outright confiscation. The state’s position is hardly made better because the landlord may look only to the tenant for compensation. Quite the opposite, this improper delegation of its own duty to compensate only throws the additional risk of tenant insolvency on the landlord instead of bearing it itself. Rent control statutes never provide just compensation to the landlord.¹³⁹

The Takings Clause is “designed to bar the Government from forcing some people alone to bear public burdens which, in all fairness and justice, should be borne by the public as a whole.”¹⁴⁰ This burden “cannot be constitutionally placed on individual landlords who happen to have hardship tenants.”¹⁴¹

B. Protection of Private Property from the Intrusion of Government—Takings and the Third Amendment

The United States Supreme Court has established that “if regulation goes too far it will be recognized as a taking.”¹⁴² Therefore, it is incumbent upon courts to “examine the effects of government regulation on private property interests, their economic value, and landowner’s investment expectations.”¹⁴³

“Takings jurisprudence consists of takings theories that identify and examine the severity of the impact of government regulation on the exercise of private property rights.”¹⁴⁴ The most straightforward takings claim arises when the government physically occupies some part of a landowner’s property without compensation. It is a “taking” of some property without compensation.¹⁴⁵ In some cases, a direct physical occupation, temporary or permanent, results in a taking.¹⁴⁶ To protect against this, the Third Amendment of the United States Constitution places restrictions on housing soldiers without owners’ consent.¹⁴⁷ Although the Supreme Court has rarely addressed the Third Amendment,¹⁴⁸ the amendment was important at the time of drafting. “The quartering of soldiers on private property was a real, pressing threat to liberty when the Bill of Rights was drafted.”¹⁴⁹ In essence, the Third Amendment “is about more than the simple quartering of soldiers. It is a protection of private property from the intrusion of government.”¹⁵⁰

Before and during the Revolutionary War, the British passed laws called Quartering Acts that authorized British soldiers to inhabit the homes of the American colonists. The first Quartering Act was passed by the British parliament in 1769.¹⁵¹ It said that the American colonies must pay for the British soldiers protecting the colonies. In addition, if British soldiers needed a place to stay, they could freely stay in the barns, stables, inns, and alehouses of the colonists. The second Quartering Act was passed in 1774 and allowed more leeway to the British troops regarding where they could quarter.¹⁵² The British soldiers had free reign over the colonies, staying wherever they wanted, including the colonists’ homes. Coined the “Intolerable Acts” by the colonists,¹⁵³ these laws were recognized as intolerable violations of privacy by the British government, further pushing the colonies towards war. Patrick Henry¹⁵⁴ said that the quartering of soldiers “was one of the principal reasons for dissolving the connection with Great Britain.”¹⁵⁵

The framers of the Constitution were aware that the sanctity of the home had been violated,¹⁵⁶ and the sanctity of the home was one of the sparks that ignited the American Revolution.¹⁵⁷ In this way, the Third Amendment is related to the Takings Clause, which “protects private property but does not prevent the government from taking it when necessary, but only with due process and just compensation.”¹⁵⁸ The Constitution states that the government cannot intervene in the sanctity of the home or interfere with the right to exclude all others. On this basis, the constitutionality of modern rent control and regulation come into question.

In 2019, a coalition of property owners filed a federal lawsuit against New York City and a New York State official,¹⁵⁹ challenging the constitutionality of the state’s rent-control laws, including the 2019 Housing Stability and Tenant Protection Act, intended to further enhance tenant protections.¹⁶⁰ The property owners challenged the Act as a “regulatory scheme” and a “regime in which tenants, not property owners, control who occupies the property, how it is used, and who may be excluded from it.”¹⁶¹ Property owners argued that this is tantamount to an unjust regulatory taking.¹⁶²

The New York rent laws impose meaningful restrictions on choices a landlord can make involving the property. The laws dictate when and how a landlord can increase rents, when they can evict, who has succession rights, elimination of high-income regulation,¹⁶³ removal of the “owner-use” clause,¹⁶⁴ and how much of a security deposit landlords can receive,¹⁶⁵ therefore “effectively eliminating” an owner’s ability to choose how to manage the property.¹⁶⁶

C. Property Owners Argue That Mandated Cost Ceilings in Private Residential Rental Contracts Violate Due Process

The U.S. Constitution states in the Fifth Amendment and in the Fourteenth Amendment that due process of law is required before a government can deprive a person of life, liberty, or property.¹⁶⁷ Property owners have argued that rent-control laws violate the Due Process Clause by depriving them of property through losses of rental income and market value because the laws advance no legitimate governmental purpose.¹⁶⁸ Courts have rejected the due process argument and ruled that rent control in general is constitutional, arguing that if property owners earn a reasonable return, the law does not violate the property owner’s due process rights.¹⁶⁹ This begs the question: What is a reasonable return? Evidence shows that rent control can cause property owners to lose substantial rental income as well as reduced market values for their properties.¹⁷⁰ Consequently, the battle is less of a legal one and more of a political and public-relations battle.¹⁷¹

In Community Housing Improvement Program v. City of New York, the plaintiff alleged that rent-control laws do not fulfill their stated purpose of promoting affordable housing and violate the Constitution’s Contracts Clause and are therefore violative of due process.¹⁷² The lawsuit further alleges that under these laws landlords are now required to continue charging a preferential rental rate—a rate lower than the legal rent—until an apartment is vacated.¹⁷³ Therefore, “landlords are unfairly bound to abide by these lower rents even if tenants signed a lease explicitly spelling out that the lower rent was a one-time deal.”¹⁷⁴

Ostensibly, rent ceilings are intended to benefit the public by addressing the broader issue of rent unaffordability. In imposing price ceilings and regulations, the government utilizes its police power to “prevent the use [of the property] in a manner that is detrimental to the public interest.”¹⁷⁵

D. Rent Control as a Catch-22,176 Creating Shortages Used to Justify Imposition

“The very conditions that rent control creates—shortages—is used to constitutionally justify the practice.”¹⁷⁷

Rent control in the United States has its origins in World War I, which directed material resources away from housing, and soon led to an acute shortage of new buildings.¹⁷⁸ There was almost a “complete cessation of residential construction during and after World War I,”¹⁷⁹ especially in New York City. This cessation created a housing shortage, “dropping the city’s vacancy rate to a fraction of 1 percent,” and put New York in a state of emergency.¹⁸⁰ In reaction to these dire circumstances, the city officials passed a rent control program.¹⁸¹ Other jurisdictions around the country passed similar legislation.¹⁸²

The housing “emergency” of New York lasted until 1929 when state laws expired, putting an end to rent-control for the time being.¹⁸³ However, the notion of rent-control lingered on, only to make a comeback in the aftermath of World War II. “When veterans returned to New York City from WWII, they were met with a Depression-era housing shortage that resulted from a nearly 15-year lack of new development.”¹⁸⁴ Yet although the New York skyline is one at which to be marveled, New York City’s continuation of rent control has caused a housing shortage since World War II.¹⁸⁵ To date, rent-cost ceilings and restrictions on property owners have not served to eliminate the disparity between the demand for affordable housing and its availability, yet rent controls persist.

E. COVID-19, an Avalanche in the Face of an Already Uphill Battle for Residential Property Owners

COVID-19 is not the only pandemic causing a national crisis. Evictions for failure to pay rent have been spreading across the nation like wildfire.¹⁸⁶ Court closures and eviction moratoriums prevent property owners from evicting non-paying tenants, and as a result, the burden to provide free or subsidized housing falls on the property owner. One judge noted, “The government should not expect one group of property owners who lease their property to tenants to finance their unfortunate circumstances.”¹⁸⁷ This sentiment was echoed by a property owner, who objected, “[y]ou’re asking me as a private sector to become part of the public sector by providing free housing.”¹⁸⁸ With court closures, a preference for one set of litigants over another has been created.¹⁸⁹ “The judicial branch should not put a heavy thumb on the scales of justice and deny property owners access to the courts and enforcement of their long-established rights under the law.”¹⁹⁰

Moratoriums on evictions closes “the courthouse doors to some litigants [property owners] on the ground that enforcing their legal rights would economically harm other litigants [tenants].”¹⁹¹ Without access to the courts,¹⁹² property owners feel “stymied at every turn by various directives (politically) aimed and designed to forestall a landlord’s ability to enforce his contractual rights”¹⁹³ Those in defense of the landlord argue “that this is an improper push by the judicial branch to take on a quasi-legislative role.”¹⁹⁴ “The housing crisis is a true emergency, to be sure. But it is a socio-economic emergency—not a judicial emergency.”¹⁹⁵ An eviction moratorium order

does not appear to absolve the landlord from any continuing legal obligations to comply with common-law, statutory, and contractual duties imposed upon him—the very duties the landlord has a right to avoid when the lease is terminated by the tenant’s breach. The order is wholly one-sided by placing a judicial moratorium on enforcing the legal rights of the landlord but not the tenant. A breaching tenant would still be free to file suit seeking damages or injunctive relief to enforce the landlord’s alleged duties to provide habitable premises, to repair unsafe conditions, to maintain common areas, to provide agreed-upon security, to supply running water, and to perform any other duties required by either the common law or [statute].¹⁹⁶

There is an embedded assumption in the eviction moratorium orders that due to the pandemic the vast majority of tenants cannot pay rent. The orders generally do not account for tenants who just do not want to pay rent during this time, tenants who have not lost their jobs, “tenants who lost their jobs because of the pandemic but have collected unemployment insurance payments previously supplemented by the $600/week CARES Act unemployment benefit and the $1,200 CARES Act one-time payment.”¹⁹⁷ It does not account for any of these, but still insists that a property owner should be denied his legal rights. “Ye shall do no unrighteousness in judgment: thou shalt not respect the person of the poor, nor honor the person of the mighty: but in righteousness shalt thou judge thy neighbor.”¹⁹⁸

“[I]t is a general and indisputable rule, that where there is a legal right there is also a legal remedy, by suit or action at law, whenever that right is invaded,”¹⁹⁹ except for residential rental property owners. A moratorium on evictions invites the same constitutional arguments that have been made for rent control. Government-issued moratorium orders deny property owners access to the judicial process, while confirming that tenants can stay on the premises regardless of their ability to timely pay rent. This amounts to a temporary taking,²⁰⁰ and violates the Contract Clause. Notably, by requiring landlords to continue to host tenants rent-free in their property, the government, while not quartering soldiers, is quartering tenants.

F. Disproportionately Negative Economic Impact of COVID-19 Shutdowns on Small Owners of Residential Rental Property

Small property owners of residential real estate have suffered disproportionately from the shutdowns and economic fallout from COVID-19. A survey of tenants and property owners by Avail²⁰¹ revealed interesting details regarding property owners and COVID-19’s impact on them. The percentage of small property owners comprised almost half of the respondents, and over a third are retired, many with only modest incomes.²⁰² Over 45 percent of property owners surveyed have changed the tenant’s payment schedule or pattern, with almost two-thirds discounting and/or deferring one or more months of rent.

The eviction freeze imposed by state and local governments has a similar effect as rent control on small property owners as discussed previously. Landlords are expected to subsidize housing costs for their tenants, but at the same time, they must pay for all ownership costs.²⁰³ For example, California passed a law extending the moratorium on evictions for missed rent through January 31, 2021.²⁰⁴ The CDC then acted to impose this moratorium nationwide. Under California law, tenants were exempt from eviction as long as they paid partial rent. Yet the unpaid rent becomes consumer debt, which is challenging to collect.²⁰⁵ In the process, the property owners lose their only tool to stop losses from tenants living in the property without paying—the ability to evict the tenant and rent instead to a paying tenant.

V. Conclusion

Methods of property acquisition, the business of housing, and the built environment have evolved significantly since a property owner was last regarded as the lord of the land. While towering skyscrapers dot the skyline of every major city, today’s “landlord” has been relegated to a mere property owner. Indeed, the rights and distinctions conferred upon the landlord have been removed, the landlord has been dethroned, and all that remains are the common rights and duties attendant to property ownership.

In the era of COVID-19, a legal system born to protect the rights of both parties is falling short. While emergency legislation has been passed to protect the tenant, property owners’ rights are being trampled and their duties are being magnified. This socio-economic problem has found its way into the courts where judges are bound to a history of unsuccessful challenges to rental-price controls. Although in many instances, the small-time property owner is no less affected by this pandemic than the tenant, they continue to be burdened by assumptions attendant to their mere status as a property owner. The stigma of the landlord—the lord of the land, anointed by a king—continues to carry the connotation of power. Whether it is the financial power to absorb the losses or the power to evict and regain possession, the facade of power has done little to serve the interests of the small rental property owner, whose hands are tied and whose wallet is empty.

The restrictions placed on property owners render the notion of ownership virtually meaningless, leaving the property owner with limited ability to use, possess, and dispose of what they own. Misconstruing who the property owner is and enforcing restrictive legislation under the guise of the greater good contradicts the Founding Fathers’ principles of protecting the sanctity of home. Has legislation really created a means to address unaffordability in housing by burdening the “mom and pop” property owners?

The need for affordable housing is the product of many societal forces, together creating lasting inequities, income disparities, and opportunity gaps. Crafting a single-party solution by restricting property owners’ rights to address unaffordability in housing, a problem with many causes, lacks the requisite dynamism to embody a full solution and is bound to fail. By reframing the conversation and injecting accurate terminology to create a greater understanding of the stakeholders involved, this article dethrones the landlord and illuminates the parity and need for protection for both the small property owner and the tenant.

Endnotes

1. Lisa St. Clown (@stclairjpeg), Twitter (May 7, 2020, 3:30 AM), https://twitter.com/stclairjpeg/status/‌1258298225414434816. Many unscrupulous Amazon.com retailers took advantage of the shortage of hand sanitizer in the early days of the COVID-19 pandemic, attempting to sell hand sanitizer at astronomical prices to a panicked public. “‘Amazon stands ready to work with Congressional leaders,’ Huseman wrote, noting that Amazon has removed more than half a million items listed by alleged gougers. ‘A federal price gouging law would . . . help retailers like Amazon more effectively prevent bad actors and ensure fair prices.’” Emily Birnbaum, Amazon’s Been Under Fire over Price Gouging. Here’s Why It Wants a Federal Ban., protocol (May 13, 2020), https://www.protocol.com/amazon-coronavirus-price-gouging-legislation.

2. See Business Assistance for Landlords, Justia, https://www.justia.com/covid-19/eviction-bans-and-mortgage-relief-during-covid-19/business-assistance-for-landlords/ (last updated April 2020); Coronavirus (COVID-19): SBA Disaster Assistance in Response to the Coronavirus, U.S. Small Bus. Admin., (last visited Sept. 12, 2020); Diana Olick, Small Landlords Struggle As Renters Either Can’t or Choose Not to Pay Amid Coronavirus Layoffs, CNBC (Apr. 2, 2020, 1:32 PM), https://www.cnbc.com/2020/04/02/coronavirus-small-landlords-struggle-as-renters-stop-payments.html; COVID-19: Landlord Emergency Grant Program for Small Rental Complexes, Morris Cnty, NJ (Aug. 10, 2020), https://morriscountynj.gov/2020/08/covid-19-landlord-emergency-grant-program-for-small-rental-complexes/; Businesses and Employers, COVID19.CA.GOV (Sept. 11, 2020, 9:47 AM), https://covid19.ca.gov/business-and-employers/; The CARES Act Provides Assistance to Small Businesses, U.S. Dep’t Treasury, https://home.treasury.‌gov/policy-issues/cares/assistance-for-small-businesses (last visited Sept. 12, 2020).

3. Todd M. Richardson, Landlords, PD&R Edge, https://www.huduser.gov/portal/pdredge/pdr-edge-frm-asst-sec-061118.html (last visited Sept. 12, 2020).

4. Affordable Housing, Women in Gov’t, (last visited Sept. 12, 2020) (“An estimated 12 million renter and homeowner households now pay more than 50 percent of their annual income on housing.”); Rental Burdens: Rethinking Affordability Measures, PD&R Edge, (last visited Sept. 12, 2020) (“HUD defines cost-burdened families as those ‘who pay more than 30 percent of their income for housing’ . . . .”); The Gap: A Shortage of Affordable Rental Homes, Nat’l Low Income Hous. Coal., https://reports.nlihc.org/gap#:~:text=The%20U.S.%20has%20a%20shortage,extremely%‌20low%2Dincome%20renter%20households (last visited Sept. 12, 2020) (“The U.S. has a shortage of seven million rental homes affordable and available to extremely low-income renters, whose household incomes are at or below the poverty guideline or 30% of their area median income. Only 36 affordable and available rental homes exist for every 100 extremely low-income renter households.”).

5. Indeed, a Google search (as of September 12, 2020) for “greedy slumlord” yields numerous results. The subject is the frequent topic of documentaries, most recently “Dirty Money,” wherein Jared Kushner is featured in an episode titled “Slumlord Millionaire.” Judy Dry, The Most Shocking Discoveries About ‘Slumlord’ Jared Kushner in Netflix’s ‘Dirty Money,’ IndieWire (Mar. 12, 2020, 2:30 PM), https://www.indiewire.com/2020/03/‌dirty-money-jared-kushner-slumlord-netflix-1202216998/.

6. See Gabrielle DeNaro, Welcome to the Jungle, Where the Rent Is Too Damn High: Using Rent Regulation in New York City to Maintain an Affordable Housing Stock, 16 Cardozo J. Conflict Resol. 939, 946–49 (2015).

7. See id. at 939 (citing Josh Barro, Lena Dunham is Right About Rents Driving Artists Out of New York, Bus. Insider (Aug. 9, 2013, 10:38 AM), 

8. Stephanie M. Stern, Rent Control Sharing, 13 L. & Ethics Hum. Rts. 141, 142–43 (2019).

9. Id.

10. DeNaro, supra note 6, at 948.

11. Id.

12. Stern, supra note 8, at 143 (“In rent control, the wealth transfer (in the form of below-market rent) is from private landlords to their tenants. The public pays indirectly through lower property values and higher, non-controlled rents that typically result from rent control.”).

13. Richard A. Epstein, Rent Control and the Theory of Efficient Regulation, 54 Brook. L. Rev. 741, 742–43 (1988).

14. Id. at 743.

15. Id. at 742.

16. See infra Section III.B.

17. Although the terms differ, for purposes of this paper, we will use the term “rent control” to include both rent control and rent stabilization. Both types of regulations limit the amount that rent can increase. In New York City, rent control is the older system and caps rent at a certain amount. Rent stabilization limits rent increases to a certain percentage each year. Rent Control FAQ, NYC Rent Guidelines Bd., https://rentguidelinesboard.‌cityofnewyork.us/resources/faqs/rent-control/ (last visited Sept. 12, 2020); N.Y. State Div. of Hous. and Cmty. Renewal Off. of Rent Admin., Fact Sheet #1 Rent Stabilization and Rent Control 1–4 (rev. 9/20).

18. See American Housing Survey (AHS), U.S. Census Bureau, https://www.census.gov/programs-surveys/ahs.html (last visited Sept. 12, 2020).

19. Richardson, supra note 3.

20. Id.

21. Id.

22. Id.

23. Stern, supra note 8, at 142.

24. Integrating Housing and Health, PD&R Edge, https://www.huduser.gov/portal/pdredge/pdr-edge-featd-article-070918.html (last visited Sept. 12, 2020) (summarizing a report from the Bipartisan Policy Center and explaining that “[r]esearch indicates that a lack of safe, affordable housing can negatively impact health. For example, the likelihood of having frequent and severe mental or physical illnesses is higher among individuals experiencing homelessness, and families who forgo healthy food or medicine to pay high housing costs may experience poor health outcomes. In addition, unsafe conditions within the home, such as the presence of lead, can trigger or worsen health issues.”).

25. Brian J. Strum, Proposed Uniform Residential Landlord and Tenant Act: A Departure from Traditional Concepts, 8 Real Prop., Prob. & Tr. J. 495, 495–96 (1973).

26. See Robert L. McCurley, Jr., Landlord-Tenant Act, 63 Ala. Law. 348, 348 (2002).

27. Id.

28. See generally Tom G. Geurts, The Historical Development of the Lease in Residential Real Estate, 32 Real Est. L.J. 356 (2004).

29. Rent Control Laws by State, Nat’l Multifamily Hous. Council (Sept. 2, 2020), https://www.nmhc.‌org/research-insight/analysis-and-guidance/rent-control-laws-by-state/.

30. New York, New Jersey, and Maryland only have local rent control. See id.

31. Id.

32. Id.; see Prasanna Rajasekaren, et al., Rent Control: What Does the Research Tell Us about the Effectiveness of Local Action?, Urb. Inst. 3 (Jan. 16, 2019).

33. 2019 Cal. Stat. ch. 597.

34. Gerald Lebovits et al., New York’s Housing Stability and Tenant Protection Act of 2019: What Lawyers Must Know, N.Y. State B.J., Sept./Oct. 2019, at 36, 36.

35. Analysis by the Wall Street Journal found rent regulations in New York to be more favorable to the Upper West Side older, wealthier residents paying $2,000 less per month than that of lower-income renters in other Manhattan neighborhoods. Josh Barbanel, Wealthy Older Tenants in Manhattan Get Biggest Boost from Rent Regulations, Wall St. J. (June 12, 2020, 3:46 PM), https://www.wsj.com/articles/wealthy-older-tenants-in-manhattan-get-biggest-boost-from-rent-regulations-11560344400; see also Wealthy, Older Manhattanites Benefit Most from Rent Regulation: Report, Curbed N.Y. (June 12, 2019, 2:34 PM), https://ny.curbed.com/2019/6/12/18662844/rent-regulation-study-manhattan 

36. Amy Swearer & GianCarlo Canaparo, New York City’s Rent Control Laws Are Erasing Property Rights and Worsening Housing Supply, Heritage Found. (Aug. 6, 2019), https://www.heritage.org/economic-and-property-rights/commentary/new-york-citys-rent-control-laws-are-erasing-property.

37. Reporting Changes to Income and Family Composition, N.Y.C. Hous. Auth., (last visited Sept. 12, 2020). Recertification occurs every year the landlord (in the case of HUD housing) or housing authority (in the case of public housing and Section 8 housing) has to contact the tenant to make sure that there is no change in the number of people living in the household or to family income. Special Issues for Subsidized and Public Housing Tenants, People’s Libr. Md., https://www.peoples-law.org/special-issues-subsidized-and-public-housing-tenants (last updated Apr. 7, 2019). Failing to respond to any such request for recertification will result in serious consequences. Id. For HUD housing, the landlord can raise rent to the full market rate charged, and the majority will not be covered by the government, making the tenant solely responsible. Id. For Section 8 housing, the housing authority will terminate your Section 8 voucher. Id. For public housing, the housing authority will terminate tenancy and institute eviction proceedings. Id. Any failure to report can further result in criminal charges of fraud, loss of housing assistance, and the repayment of back rent. Id.

38. Swearer & Canaparo, supra note 36; see also Barbanel, supra note 35.

39. DeNaro, supra note 6, at 948 (citing Christine Haughney, For Faye Dunaway Real-Life Role in Housing Court, N.Y. Times (Aug. 2, 2011), https://www.nytimes.com/2011/08/03/nyregion/faye-dunaway-subject-of-suit-by-manhattan-landlord.html).

40. Id.

41. Sean Veal & Jonathan Spader, Nearly a Third of American Households Were Cost-Burdened Last Year, Joint Ctr. Hous. Stud. (Dec. 7, 2018), https://www.jchs.harvard.edu/blog/more-than-a-third-of-american-households-were-cost-burdened-last-year/.

42. Rob Warnock & Chris Salviati, Missed Housing Payments Continue Piling Up in July, Apartment List (July 8, 2020), https://www.apartmentlist.com/research/july-housing-payments.

43. Id.

44. Id.

45. Id.

46. Id.

47. Richardson, supra note 3.

48. Temporary Halt in Residential Evictions to Prevent the Further Spread of COVID-19, 85 Fed. Reg. 55,292 (Sept. 2, 2020), https://www.govinfo.gov/content/pkg/FR-2020-09-04/pdf/2020-19654.pdf.

49. Alanna Vagianos, Millions of Americans Are About To Be Homeless, and It’s Totally Preventable, HuffPost (July 29, 2020, 6:00 AM), https://www.huffpost.com/entry/evictions-coronavirus-americans-homeless-covid-19-rent_n_5f209d31c5b66859f1f3545b?ncid=APPLENEWS00001.

50. Temporary Halt in Residential Evictions to Prevent the Further Spread of COVID-19, 85 Fed. Reg. at 55,292.

51. Id.

52. Id. at 55,296.

53. Diana Olick, Small Landlords Dip into Savings as Their Tenants Struggle To Pay Rent, CNBC (Aug. 24, 2020, 11:38 AM), https://www.cnbc.com/2020/08/24/small-landlords-dip-into-savings-as-their-tenants-struggle-to-pay-rent.html.

54. Vagianos, supra note 49.

55. Id.

56. Id.

57. Id.

58. Id.

59. Id.

60. Stacey Vanek Smith, Rent in the Time of Coronavirus, NPR (May 26, 2020, 2:29 PM), https://www.npr.‌org/2020/05/26/862711123/rent-in-the-time-of-coronavirus.

61. Interview by Stacey Vanek Smith, Co-Host of The Indicator from Planet Money, NPR, with Sterling Lunsford and Gary Zarumba (May 26, 2020), https://www.npr.org/transcripts/862711123.

62. Id.

63. Id.

64. Id.

65. Id.

66. See Olick, supra note 53; Marin Scott, Landlords and Renters Struggling To Make Ends Meet During COVID-19 Uncertainty, Avail (Sept. 11, 2020), https://www.avail.co/blog/landlords-and-renters-struggling-to-make-ends-meet-during-covid-19-uncertainty.

67. Richardson, supra note 3.

68. Lebovits et al., supra note 34, at 36.

69. Id.

70. See Louis W. Fisher, Paying for Pushout: Regulating Landlord Buyout Offers in New York City’s Rent-Stabilized Apartments, 50 Harv. C.R.-C.L. L. Rev. 491, 492 (2015).

71. Henry Rottschaefer, The Field of Governmental Price Control, 35 Yale L.J. 438, 443 (1926) (citing Munn v. Illinois, 94 U.S. 113, 118 (1876)).

72. Jonathan Ingram, Eliminating Innovation: How Price Controls Limit Access, 32 J. Legal Med. 115, 116 (2011).

73. See James C. McMillin, Principled Fairness in the Regulation of Petroleum Prices, 57 Tex. L. Rev. 573, 574 (1979); Robert P. Murphy, Removing the 1970s Crude Oil Price Controls: Lessons for Free-Market Reform, The J. of Priv. Enter., Spring 2018, at 63, 63; Hugh Rockoff, Price Controls, Libr. Econ. & Liberty, https://www.econlib.org/library/Enc/PriceControls.html (last visited Sept. 13, 2020).

74. Murphy, supra note 73, at 68–72; Rockoff, supra note 73.

75. Rebecca Diamond, et al., The Effects of Rent Control Expansion on Tenants, Landlords, and Inequality: Evidence from San Francisco 3–4 (Nat’l Bureau of Econ. Rsch., Working Paper No. 24181, 2018); Edward L. Glaeser & Erzo F.P. Luttmer, The Misallocation of Housing under Rent Control, 93 Am. Econ. Rev. 1027, (2003); David P. Sims, Out of Control: What Can We Learn from the End of Massachusetts Rent Control? 61 J. Urb. Econ. 129, (2007).

76. Telephone and Email Interviews with Irwin O. (June 2018). Interviewee wishes to remain anonymous as he currently entered into litigation on the same property. Irwin O is a close family friend of the author.

77. Id.

78. Id.

79. The New York City loft law, administered by the New York City Loft Board, affects Interim Multiple Dwellings (IMDs), or commercial, manufacturing, or warehouse loft buildings that had at least three units occupied by residents from April 1, 1980, through December 1, 1981. See N.Y. Mult. Dwell. Law § 281 (McKinney 2019), http://www.nyc.gov/html/loft/downloads/pdf/loft_law.pdf.

80. Rent stabilization is applicable to New York City, Nassau, Rockland, and Westchester Counties. Rent Programs Overview, N.Y. State Off. Rent Admin., https://hcr.ny.gov/office-rent-administration-ora (last visited Sept. 13, 2020). It generally applies to buildings of six or more units built before 1974 that are not subject to rent control, and owners of buildings built or renovated after 1974 with three or more units can agree to rent stabilization in exchange for special tax benefits. Rent Control FAQ, N.Y.C. Rent Guidelines Bd. (Sept. 13, 2017), 

81. In total he forgave around $50,000. Telephone and Email Interviews with Irwin O, supra note 76.

82. Andrea Francese, ‘Friends’: Could Monica and Rachel Actually Afford Their West Village Apartment?, Showbiz CheatSheet (Aug. 1, 2019), https://www.cheatsheet.com/entertainment/friends-could-monica-and-rachel-actually-afford-their-west-village-apartment.html (“During the run of the show, Monica explains that she inherited the apartment from her grandmother and paid just $200 per month in rent due to rent-control. The average cost of rent in the 1970s was already $335 per month on the island of Manhattan. By the 1990s, when Monica and Rachel had ownership of the unit, the average cost of rent in Manhattan was around $3,200 per month. Their unit would have also come at a premium due to its large size and balcony access.”).

83. Telephone and Email Interviews with Irwin O., supra note 76.

84. Peter D. Salins & Gerard Mildner, Does Rent Control Help the Poor?, N.Y. City J., Winter 1991, https://www.city-journal.org/html/does-rent-control-help-poor-12772.html.

85. N.Y.C. Rent Guidelines Bd., 2018 Housing Supply Report 3–4.

86. Barbanel, supra note 36.

87. United States v. Gen. Motors Corp., 323 U.S. 373, 378 (1945).

88. Id.

89. Jane B. Baron, Rescuing the Bundle of Rights Metaphor in Property Law, 82 U. Cin. L. Rev. 57, 60 (2013).

90. Loretto v. Teleprompter Manhattan CATV Corp., 458 U.S. 419, 433 (1982).

91. See id. at 436 (“[T]he permanent physical occupation of property forever denies the owner any power to control the use of the property . . . .”).

92. See Cienega Gardens v. United States, 67 Fed. Cl. 434 (2005), vacated, 503 F.3d 1266 (Fed. Cir. 2007).

93. See J.E. Penner, The “Bundle of Rights” Picture of Property, 43 UCLA L. Rev. 711, 756 (1996) (describing the right to security as the right to continued ownership absent voluntary disposition, except, of course, in the case of bankruptcy or foreclosure).

94. See Marcus J. Lock, Braving the Waters of Supreme Court Takings Jurisprudence: Will the Fifth Amendment Protect Western Water Rights from Federal Environmental Regulation?, 4 U. Denv. Water L. Rev. 76, 86 (2000).

95. See Keystone Bituminous Coal Ass’n v. DeBenedictis, 480 U.S. 470, 480 (1987).

96. See United States v. Causby, 328 U.S. 256, 264 (1946).

97. See Austin v. Silver, 33 A.3d 1157, 1162 (N.H. 2011).

98. See Penner, supra note 93, at 756.

99. Loretto v. Teleprompter Manhattan CATV Corp., 458 U.S. 419, 433 (1982) (citing Kaiser Aetna v. United States, 444 U.S. 164, 176 (1979)).

100. DeNaro, supra note 6, at 942 (citing Guy McPherson, It’s the End of the World As We Know It (And I Feel Fine): Rent Regulation in New York City and the Unanswered Questions of Market and Society, 72 Fordham L. Rev. 1125, 1133 (2004)).

101. Lucas v. S.C. Coastal Council, 505 U.S. 1003, 1027 (1992).

102. DeNaro, supra note 6, at 955 (“[T]his problem [rent control] will be a resurrected issue once the time comes again to vote upon it.”).

103. Jake Edmiston & Nick Faris, Landlords Want a Rebrand: Why a Hamilton Group Wants To Be Called ‘Rental Housing Providers,’ Nat’l Post (Sept. 23, 2018), https://nationalpost.com/news/canada/landlords-want-a-rebrand-why-a-hamilton-group-wants-to-be-called-rental-housing-providers; see also John Laurits, A History of Landlords: Rent & the Feudal Origins of a Non-Working Class, John Laurits (Sept. 26, 2018), https://www.‌johnlaurits.com/2018/history-landlords-rent-feudalism-lords/; Landlord, Merriam-Webster, https://www.‌merriam-webster.com/dictionary/landlord#h1 (last visited Sept. 13, 2020) (noting that the “First Known Use of landlord” was “before the 12th century”).

104. Feudalism, Lexico, https://www.lexico.com/en/definition/feudalism (last visited Sept. 13, 2020) (defining feudalism as “[t]he dominant social system in medieval Europe, in which the nobility held lands from the Crown in exchange for military service, and vassals were in turn tenants of the nobles, while the peasants (villeins or serfs) were obliged to live on their lord’s land and give him homage, labor, and a share of the produce, notionally in exchange for military protection”); see also William P. Quigley, Five Hundred Years of English Poor Laws, 1349–1834: Regulating the Working and Nonworking Poor, 30 Akron L. Rev. 73, 74–77 (1996).

105. Serf is “an Old French word related to servant and slave.” Laurits, supra note 103.

106. Quigley, supra note 104, at 75.

107. Possession, Britannica, https://www.britannica.com/topic/possession-property-law (last visited Sept. 13, 2020) (“Possession, in law, the acquisition of either a considerable degree of physical control over a physical thing, such as land or chattel, or the legal right to control intangible property, such as a credit—with the definite intention of ownership. With respect to land and chattel, possession may well have started as a physical fact, but possession today is often an abstraction.”).

108. Quigley, supra note 104, at 75.

109. Serfdom, Britannica, https://www.britannica.com/topic/serfdom (last visited Sept. 13, 2020).

110. James Charles Smith, et al., Property: Cases and Materials 519 (4th ed. 2018).

111. Howard Husock, The Moral Virtues of Landlords, Small Prop. Owners Ass’n, https://spoa.com/the-moral-virtues-of-landlords/ (last visited Sept. 13, 2020).

112. Smith, supra note 110, at 519; see also Graves v. Berdan, 26 N.Y. 498, 503–04(1863).

113. New York Case Law, Justia US Law, https://law.justia.com/cases/new-york/ (last visited Sept. 13, 2020) (“The New York state court system is divided into three levels. The highest court in New York is the New York Court of Appeals, which consists of seven judges. The Court of Appeals reviews appeals of decisions by the New York Supreme Court, Appellate Division. . . . Decisions by the New York Court of Appeals are final unless the U.S. Supreme Court agrees to review an appeal of a decision.”).

114. Graves, 26 N.Y. at 500–01.

115. Smith et al., supra note 110, at 519.

116. Husock, supra note 111.

117. Mary Ann Glendon, The Transformation of American Landlord-Tenant Law, 23 B.C. L. Rev. 503, 503 (1982); see also Samuel Bassett Abbott, Housing Policy, Housing Codes and Tenant Remedies: An Integration, 56 B.U.L. Rev. 1, 2 (1976); Roger A. Cunningham, The New Implied and Statutory Warranties of Habitability in Residential Leases: From Contract to Status, 16 Urb. L. Ann. 3, 6 (1979).

118. Glendon, supra note 117, at 503.

119. Edmiston & Faris, supra note 103; see also Laurits, supra note 103 (“Noble landholders were considered to be the lords of their sub-tenants, as well as the peasants and serfs inhabiting the land, and most lords were also considered a tenant (also known as a vassal) of the overlord who granted the land to them. A lord whose land was given directly by the king was known as a tenant-in-chief and held the title of baron, in addition to attending the king’s councils. Altogether, such arrangements added up to form a kind of “military-agrarian complex” that reinforced the monarchic regime’s ability to control land through a complex bureaucracy of landholders that enforced the rigid hierarchy of feudal society.”).

120. Edmiston & Faris, supra note 103; see also Laurits, supra note 103 (“Since most [serfs] were landless, landed lords demanded rents from peasants in exchange for the right to work the soil, often paid with daily labor or with a hefty part of the peasant’s own harvest.”).

121. The etymology of the word landlord “can be traced back to the Old English word hl¯aford which originated from hl¯afweard meaning ‘loaf-ward’ or ‘bread keeper,’ reflecting the Germanic tribal custom of a chieftain providing food for his followers.” Landlord, Oxford English Dictionary 1036 (2d ed. rev. 2005).

122. For example, the National Football League’s Washington Redskins have changed the team’s name to “Washington Football Team” for 2020. Jack Rathborn, Washington Redskins Confirm New Name, Indep. (July 23, 2020, 6:39 PM), https://www.independent.co.uk/sport/us-sport/national-football-league/washington-redskins-new-name-change-football-team-2020-nfl-latest-a9635001.html. see also Kathryn Brenzel, Landlords Lob Another Lawsuit at New Rent Law, TheRealDeal (Nov. 15, 2019, 12:48 PM), https://therealdeal.com/2019/11/15/group-of-landlords-lobs-another-lawsuit-challenging-new-rent-law/ (quoting a landlord as saying that “[o]ne of the most important thing[s] for me is that my side is heard, . . . . All too often the media portrays landlords as the devil. Well, that’s not the case. A lot of my tenants, I consider to be my extended family.”).

123. Tenant, Online Etymology Dictionary, https://www.etymonline.com/word/tenant (last visited Sept. 13, 2020) (outlining the etymology of “tenant” from “early 14c., ‘person who holds lands by title or by lease,’ from Anglo-French tenaunt (late 13c.), Old French tenant ‘possessor; feudal tenant’ (12c.), noun use of present participle of tenir ‘to hold,’ from Latin tenere ‘hold, keep, grasp,’ from PIE root *ten- ‘to stretch’”).

124. Affordable Housing, supra note 4.

125. Nat’l Low Income Hous. Coal., Out of Reach: The High Cost of Housing 4 (2020)

126. Abraham Gutman et al., Health, Housing, and the Law, 11 Ne. U.L. Rev. 251, 260 (2019).

127. Id. (citing Barbara J. Lipman, Something’s Gotta Give: Working Families and the Cost of Housing 7 (2005)).

128. Id. at 262.

129. Id. at 261–62.

130. Brandon M. Weiss, Progressive Property Theory and Housing Justice Campaigns, 10 U.C. Irvine L. Rev. 251, 266–67 (2019).

131. See, e.g., Causby v. United States, 75 F. Supp. 262, 263 (Ct. Cl. 1948).

132. Sharon Otterman & Matthew Haag, Rent Regulations in New York: How They’ll Affect Tenants and Landlords, N.Y Times (June 12, 2019), https://www.nytimes.com/2019/06/12/nyregion/rent-regulation-laws-new-york.html.

133. Harmon v. Markus, 412 F. App’x 420 (2d Cir. 2011) (involving a challenge to New York’s law brought by landlords arguing that it is an arbitrary and unsupportable regulation amounting to an uncompensated taking that violates the Fifth Amendment and Fourteenth Amendment).

134. The Fifth Amendment to the United States contains important protections against federal confiscation of private property and states that “No person . . .[shall] be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.” U.S. Const. amend. V; see also Armstrong v. United States, 364 U.S. 40, 49 (1960) (“Fifth Amendment’s guarantee . . . [is] designed to bar Government from forcing some people alone to bear public burdens which, in all fairness and justice, should be borne by the public as a whole.”). But see United States v. Cent. Eureka Mining Co., 357 U.S. 155, 168 (1958) (holding that no taking occurred when War Production Board ordered gold mines to close in order to divert men to the war effort because such “wartime economic restrictions, temporary in character, are insignificant when compared to the widespread uncompensated loss of life and freedom of action which war traditionally demands”); United States v. Caltex (Philippines), Inc., 344 U.S. 149, 156 (1952) (holding that no taking occurred when oil companies’ terminal facilities were strategically destroyed to prevent enemy usage during World War II). In engaging in these essentially ad hoc, factual inquiries, the Court’s decisions have identified several factors that have particular significance. In making its decision, the Court would consider (1) the economic impact of the regulation on the claimant, (2) the extent to which the regulation has interfered with distinct investment-backed expectations and (3) the character of the governmental action.

135. Succession rights permit certain occupants of a rent-regulated apartments to lawfully become tenants of the apartment when the tenant of record dies, permanently leaves, or surrenders rights to the apartment. These succession rights include but are not limited to: spouse, child, step-child, parent, step-parent, sibling, grandparent, grandchild, parent-in-law, child-in-law of tenant of record, or any other individuals, who can demonstrate a “family-like” relationship to the tenant of record and meet the succession criteria. What You Need To Know About Succession Rights in Rent-Stabilized Apartments, Legal Aid Soc’y, https://www.legalaidnyc.org/get-help/housing-problems/what-you-need-to-know-about-succession-rights/ (last visited Sept. 13, 2020).

136. Peter J. Harrington, Untying the Knot: Extending Intestacy Benefits to Non-Traditional Families by Severing the Link to Marriage, 25 J. Civ. Rts. & Econ. Dev. 323, 324 (2011) (explaining that “the nuclear family” consists “of a married, heterosexual couple and their children”).

137. Id. (“ In response to the changes in family structure, the UPC has chosen to selectively accommodate the needs of some non-traditional family groups.”).

138. “A squatter may acquire legal title, and therefore right to occupy land as its new true owner and no longer be considered a trespasser, through adverse possession” if they satisfy the following: “their occupation is actual, open and notorious, exclusive of the true owner (i.e., holder of legal title), and hostile, that is, without permission of the true owner (otherwise phrased as ‘adverse as to claim of right’).” Monica E. Eppinger, The Challenge of the Commons: Beyond Trespass and Necessity, 66 Am. J. Compar. L. 1, 19 (Supp. 2018) (footnotes omitted).

139. Epstein, supra note 13 at 746–47.

140. Pennell v. City of San Jose, 485 U.S. 1, 9 (1988)

141. Epstein, supra note 13, at 752.

142. Pennsylvania Coal Co. v. Mahon, 260 U.S. 393, 415 (1922); see also Lucas v. S.C. Coastal Council, 505 U.S. 1003 (1992) (holding that a regulation that deprives a property owner of all economically beneficial use of his property requires compensation, unless the owner’s proposed use is one prohibited by background principles of property or nuisance law existing at the time the property was acquired); James E. Holloway & Donald C. Guy, The Aftermath of Koontz and Conditional Demands: A Per Se Test, Personal Property, and A Conditional Demand, 23 Widener L. Rev. 37, 40 (2017).

143. Holloway & Guy, supra note 142, at 40 (referencing Pennsylvania Coal Co. v. Mahon’s objective test).

144. Id.

145. U.S. Const. amend. V.

146. United States v. Causby, 328 U.S. 256, 266-67 (1946); see also Eppinger, supra note 138, at 12 (“The Supreme Court held that federal statutes, together with administrative regulations developed pursuant to them, had the effect of making the upper air, above the prescribed minimum altitudes of flight, a public highway. The decision has been held to supersede state law on the matter, so that liability for entry into the airspace thereafter became a matter of federal law.”).

147. U.S. Const. amend. III (“No soldier shall, in time of peace be quartered in any house, without the consent of the owner, nor in time of war, but in a manner to be prescribed by law.”).

148. Third Amendment, JRank, https://law.jrank.org/pages/10765/Third-Amendment.html#ixzz6WnT0thNu (stating that “because the United States has not been regularly confronted by standing armies during its history, the Third Amendment has produced little litigation”); see Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 587–89 (1952) (holding that the president did not have the requisite authority to seize private property without an act of Congress); id. at 644 (Jackson, J., concurring) (using the Third Amendment to illustrate the court’s decision, “even in war time, his seizure of needed military housing must be authorized by Congress”); Griswold v. Connecticut, 381 U.S. 479, 484–86 (1965) (holding that the First, Third, Fourth and Ninth Amendments suggested a right to privacy and that this gave married couples the right to use contraception and stating that“[t]he Third Amendment in its prohibition against the quartering of soldiers ‘in any house’ in time of peace without the consent of the owner is another facet of that privacy”). See generally Becky Little, Why We Have the Third Amendment—and Why It Rarely Comes Up in Court, Hist. (June 5, 2020), https://www.history.com/news/third-amendment-constitution-james-madison.

149. David Edwards, The Historical Context of the Third Amendment, Libertarianism.org (July 10, 2019), https://www.libertarianism.org/columns/historical-context-third-amendment.

150. Id.

151. This Day in History March 24, 1765: Parliament Passes the Quartering Act, Hist., http://www.history.com/this-day-in-history/parliament-passes-the-quartering-act (last visited Sept. 14, 2020).

152. Id.

153. Intolerable Acts: Great Britain [1774], Britannica, https://www.britannica.com/event/Intolerable-Acts (last visited Sept. 14, 2020).

154. Patrick Henry was a Founding Father of the United States and is best known for his rousing speeches, such as the one in which he quoted, “Give me liberty, or give me death,” and for his strong support for revolution against the British. Patrick Henry, Hist. (Oct. 24, 2019), https://www.history.com/topics/american-revolution/patrick-henry.

155. Brion McClanahan, The Founding Fathers Guide to the Constitution 192 (2012).

156. American Revolution, Hist., https://www.history.com/topics/american-revolution (last visited Sept. 14, 2020).

157. Id. (“The Revolutionary War waged by the American colonies against Britain influenced political ideas and revolutions around the globe, as a small fledgling nation won its freedom from the greatest military force of its time.”).

158. See U.S. Const. amend. XIV (“[N]or shall any State deprive any person of . . . property, without due process of law . . . .”); id. amend. V (“No person shall . . . be deprived of . . . property, without due process of law; nor shall private property be taken for public use, without just compensation.”).

159. Cmty. Hous. Improvement Program v. City of N.Y., No. 19-CV-4087 (MKB), 2019 WL 8163423, at *1 (E.D.N.Y. Oct. 8, 2019); Regina Metro. Co. v. N.Y. State Div. of Hous. & Cmty. Renewal, Nos. 1–4, 2020 WL 1557900, at * (N.Y. Apr. 2, 2020) (ruling in landlords’ favor that the Housing Stability and Tenant Protection Act of 2019 should not apply retroactively to cases involving rent overcharges because it also limits the rent used to calculate damages to four years prior to a complaint and finding that retroactively applying a portion of the Housing Stability and Tenant Protection Act of 2019 to rent-overcharge cases violates the substantive due-process clause of the state constitution, which demands laws be rationally related to a legitimate government interest).

160. Housing Stability and Tenant Protection Act of 2019, 2019 N.Y. Laws ch. 36, https://www.nysenate.‌gov/legislation/bills/2019/s6458.

161. Brenzel, supra note 122.

162. Scott Lemieux, The Landlords’ Improbable Lawsuit Against Rent Regulations Should Fail, City & State N.Y. (July 22, 2019). (“The Supreme Court developed the concept of a ‘regulatory taking,’ holding that in certain extreme cases a regulation could render property so economically unviable as to effectively have been taken by the state.”).

163. Otterman & Hagg, supra note 132 (“If a tenant in a rent-stabilized unit earned over $200,000 a year in two consecutive years, the landlord could deregulate the unit. That will no longer be allowed.”).

164. Id. (“Landlords and their family members have been able to remove rent-stabilized tenants from multiple units to use them as residences, a rule sometimes abused by landlords as a way to ultimately raise rents. Now, landlords will only be able to claim “owner use” for one apartment for use as their primary residence.”).

165. Id. (“Security deposits will be limited to one month’s rent and procedures will be improved to make it easier for renters to get their security deposits back.”).

166. Brenzel, supra note 122.

167. The Fifth Amendment states that no person shall “be deprived of life, liberty, or property, without due process of law,” U.S. Const. amend. V, and the Fourteenth Amendment states “nor shall any State deprive any person of life, liberty, or property, without due process of law,” U.S. Const. amend. XIV.

168. Ilya Shapiro, Rent Control Violates Property Rights and Due Process, Cato Inst. (Nov. 29, 2011, 3:31 PM), https://www.cato.org/blog/rent-control-violates-property-rights-due-process.

169. Scott T. Dunning, Fisher v. City of Berkeley: Applying Due Process and Preemption to Rent Control Ordinances, 16 Golden Gate Univ. L. Rev. 369, 368–97 (1986); Karl Manheim, Rent Control in the New Lochner Era, 23 UCLA J. Env’t L. & Pol’y 211, 262–70 (2005); Neal Stout, Making Room at the Inn: Rent Control As a Regulatory Taking, 38 Wash. Univ. J. Urb. & Contemp. L. 305, 305–35 (1990); Note, The Constitutionality of Rent Control Restrictions on Property Owner’s Dominion Interests, 100 Harv. L. Rev. 1067, 1067–85 (1987).

170. David H. Autor et al., Housing Market Spillovers: Evidence from the End of Rent Control in Cambridge, Massachusetts, 122 J. Pol. Econ. 661, 661–717 (2014); Rebecca Diamond, et al., supra note 75.

171. Manheim, supra note 169.

172. Article I, Section 10 of the United States Constitution bars governments from passing legislation in order to interfere with private contracts. “No State shall . . . pass any . . . Law impairing the Obligation of Contracts . . . .” U.S. Const. art. I, § 10.

173. N.Y. State Div. of Hous. and Cmty. Renewal Off. of Rent Admin., Fact Sheet #40 Preferential Rents 1 (rev. 9/19), https://hcr.ny.gov/system/files/documents/2019/09/FACT%20SHEET%2040.pdf.

174. Brenzel, supra note 122.

175. 1 Julius L. Sackman, Nichols on Eminent Domain § 1.42 (3d ed. 2006).

176. A catch-22 is “a problematic situation for which the only solution is denied by a circumstance inherent in the problem or by a rule.” Catch-22, Merriam-Webster, https://www.merriam-webster.com/dictionary/catch-22 (last visited Sept. 18, 2020).

177. Epstein, supra note 13, at 753.

178. Peter Dizikes, The ‘Great Rent Wars’ of New York, MIT News (Oct. 21, 2013).

179. Id.

180. Id.

181. Id.

182. Id.

183. Id.

184. Dana Schulz, The History of NYC’s Quonset Huts, Robert Moses-Era Veterans Housing, 6sqft (Apr. 21, 2017).

185. Joseph Berger, Failure of Plan for Homeless Reflects City Housing Crisis, N.Y. Times, Feb. 19, 1985, at A1, https://www.nytimes.com/1985/02/19/nyregion/failure-of-plan-for-homeless-reflects-city-housing-crisis.html.

186. See, e.g., In re: Amendment of Eighth Order Extending Declaration of Judicial Emergency in Response to COVID-19 Emergency, slip op. at 3 (Va. Aug. 7,2020) (Lemons, C.J., dissenting) (“Evictions for failure to pay rent have become a national crisis in these times of economic difficulties.”).

187. Id.

188. Interview by Stacey Vanek Smith, supra note 61.

189. In re: Amendment of Eighth Order Extending Declaration of Judicial Emergency in Response to COVID-19 Emergency, slip op. at 3 (Lemons, C.J., dissenting).

190. Id.

191. Id. at 6 (Kelsey, J., dissenting).

192. At the time of writing this paper, the eviction moratorium in New York City has been extended to October 1, 2020. See David Brand, New York Court System Delays Evictions Until at Least Oct. 1, Queens Daily Eagle (Aug. 12, 2020), https://queenseagle.com/all/new-york-court-system-delays-evictions-until-at-least-oct-1#:~:text=1,-August%2012%2C%202020&text=The%20New%20York%20state%20court,eviction%20warrant%‌20has%20been%20issued.

193. Id. (statement by attorney Nativ Winiarsky).

194. Id. (discussing New York Governor Cuomo’s latest order issued in early August 2020 which deferred to the court system to establish “a new moratorium or allowing landlords to execute evictions”).

195. In re Amendment of Eighth Order Extending Declaration of Judicial Emergency in Response to COVID-19 Emergency, slip op. at 5 (Kelsey, J., dissenting).

196. Id. at 8–9.

197. Id. at 9.

198. Leviticus 19:15 (King James) (explaining in the Old Testament that in judgment one should not differentiate between rich and poor).

199. In re Amendment of Eighth Order Extending Declaration of Judicial Emergency in Response to COVID-19 Emergency, slip op. at 11 (Kelsey, J., dissenting) (quoting 3 William Blackstone, Commentaries *23).

200. “‘[T]emporary’ takings which, as here, deny a landowner all use of his property, are not different in kind from permanent takings, for which the Constitution clearly requires compensation.” First Eng. Evangelical Lutheran Church of Glendale v. Los Angeles Cnty., 482 U.S. 304, 318 (1987); see also In re Amendment of Eighth Order Extending Declaration of Judicial Emergency in Response to COVID-19 Emergency, slip op. at 12–13 (Kelsey, J., dissenting).

201. Avail is a company serving as an information resource to tenants and property owners. The company also offers rental services for both property owners and tenants, as well as a rental property management app to manage the tasks involved in renting residential real estate. Avail, www.avail.co (last visited Sept. 19, 2020).

202. Scott, supra note 66.

203. Abby Vesoulis, How Evictions Moratoriums Are Hurting Small Landlords—and Why That’s Bad for the Future of Affordable Housing, Time (June 11, 2020, 10:08 AM), https://time.com/5846383/coronavirus-small-landlords.

204. 2020 Cal. Stat. ch. 37; Press Release, Office of Governor Gavin Newsom, Governor Newsom, Senate President pro Tempore Atkins and Assembly Speaker Rendon Issue Statement on Eviction Protection Legislation (Aug. 28, 2020) [hereinafter Newsom Press Release], https://www.gov.ca.gov/‌2020/08/28/governor-newsom-senate-president-pro-tempore-atkins-and-assembly-speaker-rendon-issue-statement-on-eviction-protection-legislation.

205. Newsom Press Release, supra note 204; Christine Mai-Duc, California Enacts Eviction Moratorium, Wall St. J. (Sept. 1, 2020, 3:21 AM), https://www.wsj.com/articles/california-enacts-eviction-moratorium-11598944854.