A short one from the Ninth Circuit on a topic that we keep revisiting, whether the various eviction moratoria adopted and enforced by the feds and many states and local governments during Co-19.
We keep revisiting the topic because the courts keep getting it wrong.
And before we go on, a disclosure: this is one of ours, and our law firm and our colleague Jon Houghton rep the property owners.
This moratorium is from the State of Washington (yes, the same State of Washington whose moratorium was recently challenged unsuccessfully in the state courts). But this challenge is to the City of Seattle’s moratorium, and is in federal court.
Thus, it was the Ninth Circuit considering the question of whether, by commandeering rental property as pandemic public housing, Washington was on the hook for just compensation. Requiring to house residents — whatever the reason — is a physical occupation taking, right?
Not to the Ninth Circuit (and most other courts that have considered the issue). Which in El Papel, LLC v. City of Seattle, No. 22-35656 (Oct. 26, 2023), rejected the owner/lessor’s physical occupation takings claim.
Wait, you say, how is this not a physical occupation? After all, the leases which tenants sign onto all condition their right to occupy the premises on the timely payment of rent. Yes, the owner has conditionally transferred a right to occupy (and thus also transferred the right to exclude from the owner to the tenant), but the key word here is “conditionally.” Pay rent on time and you can remain. Don’t, and permission revoked, and the owner has the right to exclude.
Read the entire Ninth Circuit opinion (its unpublished, and thus short) for the reason why the panel rejected this reasoning. Yes, it is the Yee v. City of Escondido theory...
