July 9, 2020:- Housing providers have been asking whether the Massachusetts eviction moratorium is an uncompensated taking. The short answer: For some housing providers, yes, the moratorium operates as a taking. Here’s what I mean.

Right to exclude

Some years ago, the Supreme Court of the United States held that when the government takes away a property owner’s right to exclude other people from their property, the government has, in a sense, physically invaded the property. Nollan v. California Coastal Commission, 483 U.S. 825 (1987).

When tenants do not pay rent and the Commonwealth is prohibiting the housing provider from asking a judge to evict them, the Commonwealth is preventing the housing provider from excluding others (i.e. the tenants) from the property.

To that extent, where owners are barred from obtaining vacant possession (so that they can rent to somebody else or sell the property), the moratorium resembles a taking.

Hence the choice of image, by the way. What the Commonwealth is doing through the eviction moratorium is this: It is stopping owners from even trying to get possession of their own property. It is as if the Commonwealth had put a padlock on the door to the rental unit and given the one and only key to the tenant.

Compelled to admit

Nollan was decided when I was an undergraduate at Oxford University, and that (according to the calendar) was a while ago. More recently, the Supreme Court considered a case in which a property owner (Rose Mary Knick) had a family cemetery on her land, which the town government required her to make open to the public during the hours of daylight. Because the town was forcing Ms. Knick had to admit strangers to her property, even if she did not want them there. Knick v. Township of Scott, 139 S.Ct. 2162 (2019).

The specific issue that the Supreme Court decided was whether Ms. Knick should have tried state court first before federal court (no was the answer) but the case also illustrates the kind of government action that can amount to a taking, i.e. where the government compels owners to let other people use their property.

Today in Massachusetts, the Commonwealth is requiring housing providers to allow other people to use their property without paying for it. It’s the nonpayment part that makes life difficult for an increasing number of housing providers. As for that threshold issue of whether the situation can amount to a regulatory taking that warrants compensation from the Commonwealth, I believe that the answer is yes.

Question

Do you own a rental unit where the tenant has stopped paying rent, and do you want to try to obtain compensation from the Commonwealth?

2 thoughts on “Is keeping people out of their own property a “taking”?

  1. “As for that threshold issue of whether the situation can amount to a regulatory taking that warrants compensation from the Commonwealth, I believe that the answer is yes.” – Do you have any thoughts as to the structure of this compensation, given that this “taking” is a situational and limited time occurrence? Do you think that this “taking” approach can be applied by larger landlords (Ex. Multiple rental units that potentially use property management companies, etc.), or is it more related to smaller, private/individual landlords?

    1. I think there are two possible routes: (1) an action in Superior Court under G.L. c. 79 (eminent domain statute) for an assessment of damages; and (2) action in State/federal court for damages from a regulatory taking. As for larger landlords, it depends on the facts of the case, esp. whether they can show that they have been deprived ofall economically beneficial use of the property.

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