The Constitutionality of Rent Control

There is a cert petition pending before the Supreme Court that attacks the constitutionality of New York City’s rent control policy as a taking under the Fifth and Fourteenth Amendments.  The theory, I gather, is that tenants in some apartments have an option to renew their lease every few years and get to designate who gets to take over the lease if they choose not to, which amounts to a permanent “occupation” of the landowners apartment at a below-market rate.  On its face, it sounds like a good vehicle for a ruling on the issue.

I recall a long time ago looking for cases that raised Third Amendment claims, and the most interesting one I found was a challenge to rent control back in the 1940s where the building owner tried to argue that “quartering” should be understood to include more than just soldiers.  This does raise the question of whether the Third Amendment is about limiting the presence of the military in our lives or constitutes a special kind of constitutional taking–forcing somebody to live in our property that we don’t want there.  Third Amendment scholars–awake!

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3 Responses

  1. JoeJP says:

    http://big.assets.huffingtonpost.com/HarmonPetition.pdf

    UNITED STATES v. VALENZUELA does not find “merit” in the claim that: “The 1947 House and Rent Act as amended and extended is and always was the incubator and hatchery of swarms of bureaucrats to be quartered as storm troopers upon the people in violation of Amendment III of the United States Constitution.”

    Well, John Harlan did cite the 3A in Poe v. Ullman, involving contraceptives, so well, why not? The issue would be some sort of continuing government invasion though. Rent control is (as here) more of a Takings Clause issue. Some surveillance regime might be more apt though there the 4A pops up.

  2. SR says:

    The Supreme Court has already decided that a rent control ordinance — which was far more onerous than New York City’s — is not a permanent physical occupation that gives rise to a takings claim in Yee v. City of Escondido, 503 U.S. 519 (1992). The New York rent control case — although generating headlines — lacks legal merit. Unfortunately much of the coverage of this case is based on misconceptions of takings law as well as the rent regulation statutes at issue.

    I should also point out that under New York rent control and rent stabilization, unlike the regulatory scheme at issue in Yee, a tenant cannot designate who gets to take over the tenancy. There are provisions that allow immediate family members to succeed to a tenancy, but only after the permanent vacatur of the prime tenant and only when the family member has been living in the apartment for two years immediately prior to the tenant’s vacatur. Like most jurisdictions, tenants may sublet their apartment temporarily, but their sublessees do not have rights to a renewal lease and the prime tenant may forfeit their right to renew the lease if they do not use their apartment as their primary residence.