Eighth Circuit Rules Eviction Moratoria are Likely to Be Takings Requiring Compensation Under the Fifth Amendment

The 5th of April is Heights Apartments v. WalzThe US Court of Appeals for Eighth Circuit ruled unanimously that a Minnesota State Eviction Moratorium, which was enacted in order to combat the Covid pandemic, likely qualifies under the Takings Clause of Fifth Amendment as a taking of property and requires compensation. Their decision was largely based on the Supreme Court’s June 20,21 decision. Cedar Point Nursery V. HassidThe Court ruled that “per se”, temporary physical occupations of property are a form of compensation and that they automatically qualify for payment. Prior Cedar PointConventional wisdom held that temporary occupations were not subject to complex regulations. Penn CentralBalancing test. The government typically wins this one.

The Eighth Circuit ruling is here:

Heights claims that the EOs caused physical takings by forcing Heights to sign. Landlords will accept physical occupation regardless of whether the property is vacant. Tenants were compensated. Walz Defendants claim that there is no physical Because landlords weren’t denied the right to expel tenants, taking took place. tenant. They argue that the [governors executive orders]The only restriction was on the number of landowners. You could expel a tenant. Yee v. City of Escondido, 503 U.S. 519 (1992). Finding a rent control ordinance wasn’t a physical take. Since then, This issue was briefly discussed by the Supreme Court. Cedar Point NurseryIt is a. It is very instructive.

Cedar Point NurseryA California regulation was enacted by the Supreme Court
For agricultural employers, letting “union organizers on their land” is a requirement.
It was possible to work up to three hours per hour, for 120 days per annum” Each and every one Physical taking of the
Fifth and Fourteenth Amendments….. The Court explained the following:

“When a regulation leads to a physical taking of property, the law is invalid.” Each and every one
It has happened.” Id.2072 It does not matter whether there is a physical invasion
“Permanent and temporary” “intermittent rather than continuous”, or “permanent as opposed to permanent”
Government is either directly invading land or permitting a third-party to do so.

Cedar Point NurseryThese controls are available here YesUpon which Walz Defendants rely
On, it is distinguished. Rent controls are YesRent can only be paid in a limited amount
not be charged, and landlords aren’t deprived of the right to evict or compelled.
The landlords can continue to let the property after the termination of leases. 503 U.S.
527–28. 527-28. YesWe wanted to prevent future or potential incoming tenants.
More than the existing tenants. Id. at 530–31. The EOs prohibited the nonrenewal of these contracts.
Ending leases that are not in compliance with the terms of their contract is possible.
The Tenants Take it seriously endangered The Safety This is Others Or Damage Property

Heights claims that the EOs were “turned” by Heights. Minnesota leases are indefinite, and can only be ended by the landlord. tenant.” Heights has substantiated Heights’ claim that Walz Defendants deprived Heights a right to expel tenants who are not paying. It is well-preferred There are enough allegations to make a plausible allegation Each and every one Claim for physical takings Unter Cedar Point Nursery.

The Eighth Circuit seems to be right in this regard. I believe the reasoning behind Cedar PointEviction moratoria are easily applicable. The same conclusion was reached by me in July 2021 when I analysed a takings lawsuit against the then-defunct federal moratorium on evictions. Although the takings lawsuit against the federal moratorium on eviction continues, affected landlords (if they win) are still eligible for compensation during the period the moratorium was in force.

The Eighth Circuit’s ruling on merits is technically not final. This merely overturns the judgment of the trial judge and orders remand for “further proceedings.” But, appellate panels made it clear that the per se claim for physical takings is most likely to prevail.

Additionally, the Eighth Circuit affirmed the judgment of the trial judge in dismissing plaintiffs’ claims that evictions moratoriums violated Contracts Clause. It also ruled that the moratorium could be considered a taking within the meaning of the Constitution. Penn Central test. They affirmed the dismissal under the Petition Clause to the First Amendment.

The Contracts Clause issue and First Amendment will be left to the experts. Concerning the Penn Centralclaim. However, while I doubt it will succeed in the end (though the test itself is murky). This issue is more controversial than the per se taking argument. The court merely found it plausible enough for the motion to dismiss to stand. The Penn Central claim will not be considered a defense if the court decides that the eviction ban was an actual taking. Cedar Point.

Although the Eighth Circuit’s ruling doesn’t address the issue of whether an eviction moratorium to reduce the spread Covid may fall under the “policepower” exception to takings responsibility, it does leave open the question. The case will likely continue to raise this question. The courts should not push the exception of police power too far, I think. However, the limits of this exception are not clear.

All three of the judges in the Eighth Circuit panel, Erikson, Gruender and Stras, are Republican appointees. You can imagine that judges who were more liberal might have chosen a narrower view of the Eighth Circuit panel. Cedar PointThat would also exclude the possibility of eviction moratoria. However, it is difficult to make this coherent. A temporary occupancy of property is an eviction moratorium. The owner must accept the presence of tenants whom they would not otherwise be able to move. This essentially violates the right of the owner to exclude tenants, the main right in question. Cedar Point. Chief Justice John Roberts stated in the opinion for Court that, “[t]He right to exclude is “universally held as a fundamental property right element.”

Außerdem möchte ich hinzufügen, dass Cedar PointIt is possible to use logic to oppose conservative laws or regulations. However, it’s no different from left-leaning laws such as eviction moratoria. The state laws that force property owners to allow firearms on their land are an example of the latter. Liberal judges may be hesitant to adopt a narrow interpretation. Cedar Point.

It remains to be determined how much compensation the property owners would receive, even if they win this case and any other takings against eviction moatoria. It may be difficult to calculate it, as there will likely be a lot of variation from one case to the next. These cases are nevertheless important to be followed. These cases could set precedents that will limit future eviction moratoria and similar regulations.

NOTE: All property owners are responsible for the Cedar Point The Pacific Legal Foundation represented the case. PLF is the employer of my wife Alison Somin. However, she is not involved in this case.