Property Law / Housing
This section includes literature on the right to housing and housing security. Anderson, Courtney, ‘Housing Instability and COVID-19’ (2022) 18(2) University of St. Thomas Law Journal 259–271 Abstract: First, this article will provide background information on the homeless population and reasons for homelessness. The next section will detail how COVID-19 worsens housing instability, and the physical and mental health effects of suffering homelessness. After a critique of housing policies that were implemented in response to the pandemic, the conclusion will set forth suggested reforms to protect this community from health risks and disease.
Anderson, Courtney, ‘A Pandemic Meets a Housing Crisis’ in Scott Burris et al (eds), Assessing Legal Responses to COVID-19 (Public Health Law Watch, 2020) 187–192 Abstract: Housing instability in the United States has been exacerbating health disparities and causing worse health outcomes for low-income individuals and people of color well before the COVID-19 pandemic. Individuals with low- or no-income experience intermittent utility connection, are more likely to be evicted, and spend a higher percentage of their income on housing costs. There is an insufficient supply of safe, affordable housing. As a result, people are homeless, live in substandard conditions, and experience economic insecurity. COVID-19 increased the number of families afflicted with housing instability and prompted an unprecedented government response to this issue. Certain legal constraints that perpetuated a system of discrimination were rapidly suspended or amended when middle- and upper-class people found themselves struggling with housing and utility payments, income insecurity, and other stressors of the pandemic. Historically, these burdens were concentrated in the low-income population, with an emphasis on people of color. Therefore, it follows that the grace and concern extended during the pandemic still reflects bias against socioeconomically disadvantaged groups and empathy towards higher-income people. In many instances, laws that are equally applied to all individuals widened the gap between people at different places on the socioeconomic continuum. People facing additional hardships need extended grace periods for rent and utility payments. The short-term solutions instituted during COVID-19 did not address the digital gap, the needs of formerly incarcerated people, or the reality that low-income groups will inevitably experience the same unstable situations they were in prior to the pandemic. Individuals who are more likely to be affected by housing instability belong to socioeconomic groups that are being disproportionately and adversely affected by COVID-19. These compounding demographic factors complicate the legal response to housing problems. Recommendations for mitigating the negative effects of policies and regulations focus on addressing issues omitted from the COVID-19 housing laws, expanding the laws that were put into place, and targeting the underlying causes of housing instability in order to proactively prevent such instability.
Australian Property Law Bulletin (2020) 35(4)-(5) On 7 April 2020 the Australian Prime Minister announced that the National Cabinet had agreed to a Mandatory Code of Conduct for small to medium enterprises (SMEs), outlining commercial leasing principles to be implemented during the COVID-19 pandemic (National Code). The National Code applies to tenants that suffer financial stress or hardship as a result of the COVID-19 pandemic, as defined by their eligibility for the Commonwealth Government’s Job Keeper program, with an annual turnover of up to $50 million. While the National Code is intended to apply nationally, each State and Territory is responsible for its practical implementation.Volume 35, issues (4) and (5) of theAustralian Property Law Bulletin comprises a nationwide analysis of the landlord and tenant relief measures during the COVID emergency enacted by each State and Territory under the umbrella of the National Leasing Code.
vol 35(4)
- Christensen, Sharon, ‘Rebalancing the Landlord and Tenant Relationship during the COVID Emergency State and Territory Adoption of the National Leasing Code’ 50-51
- Cameron, Max and Maria Amato, ‘The Legislative Framework of the “COVID-19 Omnibus (Emergency Measures) Act” 2020 (Vic) and the “COVID-19 Omnibus (Emergency Measures) (Commercial Leases and Licences) Regulations” 2020 (Vic)’ 52-56
- Jebeile, Maged, ‘New South Wales’ 57-62
- Graham, Tim, Leila Idris and Ava Argiropoulos, ‘South Australia: “Covid-19 Emergency Response Act” 2020 (SA)’ 63-65
- Alberghini, Julia and Peter Beekink, ‘Western Australia’ 66-71
vol 35(5)
- Christensen, Sharon, ‘Landlord and Tenant Relief Measures during the COVID Emergency Completing the National Picture’ 78-79
- Campbell, Edward and Anja Giddings, ‘ACT Response to COVID-19: “Leases (Commercial and Retail) COVID-19 Emergency Response Declaration 2020”’ 80-81
- Cameron, Max and Maria Amato, ‘The Legislative Framework of the “COVID-19 Disease Emergency (Commercial Leases) Act” 2020 (Tas)’ 82-87
- Alberghini, Julia and Peter Beekink, ‘“Commercial Tenancies (COVID-19 Response) Regulations 2020” (WA)’ 88-91
- Hautop, Mark, ‘“Tenancies Legislation Amendment Act 2020” (NT)’ 92-94
- Blue, Christopher and Edward Watson, ‘Queensland’s Implementation of the Mandatory Code of Conduct for SME Commercial Leasing Principles during the COVID-19 Pandemic’ 95-98
Abstract: This spring, the Thurgood Marshall Institute published a comprehensive report and short brief on the housing challenges faced by homeowners and renters during the COVID-19 pandemic. The report and brief provided details on legislative measures related to foreclosures, evictions, and utility shutoffs that were enacted to protect and assist individuals impacted by the health crisis. As we enter into the fifth month of the pandemic in the United States, many of these measures have expired or are set to expire this summer. However, the economic impacts of the pandemic have not lessened, as millions of people across the nation continue to struggle to pay their mortgage, rent, and utility bills. Indeed, nearly 30% of owners and renters did not make their housing payments in May and June, and 32% of households missed their housing payments in July. Experts have warned of a coming housing apocalypse if additional measures are not taken to assist those affected by the pandemic. Widespread loss of housing will simply worsen the pandemic as families struggle with the loss of means to social distance, isolate, and ensure basic cleanliness through daily access to facilities to bathe, shower, and wash their hands.
Bates, Justin, ‘Housing During Lockdown’ (2020) 23(4) Journal of Housing Law 68–71 Abstract: Reflects on the problems of housing provision during the coronavirus pandemic, and potential solutions. Examines the measures for combating homelessness, highlighting the uncertainties over eligibility and the importance of guidance on priority need. Discusses the temporary suspension of possession proceedings, the lack of clarity over future policy when lockdown is lifted, and the pressures on private landlords regarding gas safety inspections.
Beard, Virginia, ‘COVID-19: Poverty, Housing, Homelessness – A Broad View and a Picture from West Michigan’ (SSRN Scholarly Paper ID 3613030, 28 May 2020) Abstract: Housing…shelter…is a fundamental part of what it means to be human. The current COVID-19 public health crisis is causing economic hardship on families and individuals, hurting disproportionately people already living in tenuous economic situations. Sectors most severely impacted by the economic shutdown employ notable numbers of such families and individuals, who now are without jobs, receiving temporary unemployment assistance, without certainty that their jobs will again be made available. In order to mitigate the additional negative outcomes of these unprecedented twin global health and economic crises, policy makers across levels of government must work together to prevent an extreme loss of housing and the related negative consequences outlined in this paper. Given Michigan has experienced one of the worst sets of recessions over the last 20 years, it is an important case study in understanding the economic impact, particularly on housing, of these crises. This paper presents an overview of the concerns in the ability to pay for housing springing from the economic impact of the public health shutdowns using west Michigan as an illustrative example. It further recommends policy actions to mitigate the most negative impacts on housing access applicable both in Michigan and nationwide.
Benfer, Emily A et al, ‘Public Health Amici Curiae Brief in Support of the Centers for Disease Control and Prevention Eviction Moratorium’ (SSRN Scholarly Paper ID 3708504, 9 October 2020) Abstract: Eviction moratoriums help reduce the spread of COVID-19. Millions of Americans entered the COVID-19 pandemic vulnerable to eviction due to a preexisting affordable housing crisis. The economic recession and widespread job loss resulting from the pandemic increased hardship among renters, who often lack savings to cover expenses during an emergency. COVID-19-related job and wage loss left millions unable to afford rent. This has created an unprecedented eviction crisis that disproportionately affects low-income populations and communities of color and increases COVID-19 infection and mortality. The Centers for Disease Control and Prevention (‘CDC’) issued an agency order (‘CDC Order’) to pre-vent evictions from spreading COVID-19 and worsening public health.Evidence suggests that eviction moratoriums effectively slow the spread of COVID-19. Without these moratoriums, evictions will likely increase to unseen heights, facilitating the transmission of infectious diseases, including COVID-19. Preliminary research and modeling demonstrate that eviction is associated with in-creased COVID-19 infection and mortality rates. The consequences of eviction (such as overcrowding, homelessness, and housing instability) increase contact with others and hinder compliance with the key strategies to contain COVID-19, including social distancing, self-quarantining, and hand hygiene. The people most at risk of eviction are particularly vulnerable to COVID-19. Low-income populations are often exposed to social determinants of poor health and have chronic illness or disability and, as such, are at risk of serious complications or death when they contract COVID-19. People of color are more likely to have lost jobs, face eviction, contract COVID-19, lack access to healthcare, and fall severely ill with the virus. Protecting public health during this pandemic re-quires protecting those most likely to contract, spread, and die from COVID-19. These deleterious health impacts and the spread of COVID-19 are tied to the act of eviction itself and are likely quite preventable if eviction is halted under the CDC’s moratorium. The brief was prepared by Emily A. Benfer, the Yale Law School Jerome N. Frank Legal Services Organization, and the Southern Poverty Law Center in consultation with Yale School of Public Health faculty and with the aid of legal interns at the Wake Forest University School of Law and Yale Law School.
Benfer, Emily A, Solomon J Greene and Margaret Hagan, ‘Approaches to Eviction Prevention’ (SSRN Scholarly Paper ID 3662736, 28 July 2020) Abstract: This Article provides a general overview of eviction prevention approaches and strategies that are currently being employed, or could be adapted, to prevent eviction and homelessness during the COVID-19 pandemic. This document provides an overview of strategies that could prevent or mitigate eviction for nonpayment of rent, including 1) eviction and foreclosure moratoria, 2) housing stabilization, 3) landlord relief programs, 4) equitable approaches to the eviction process, and 5) post-eviction mitigation measures. Many of these policies and interventions predate the COVID-19 pandemic, and were employed during the Great Recession of 2008, and could be adapted to the pandemic environment.
Bernal, Daniel, ‘Pleadings in a Pandemic: The Role, Regulation, and Redesign of Eviction Court Documents’ (2021) 73(4) Oklahoma Law Review 573 Abstract: As federal and state eviction moratoriums are lifted, millions of Americans face the imminent threat of eviction. To improve participation in the judicial process, safeguard against unnecessary or unjust evictions, and minimize the impact of those with good cause, courts must ensure that tenants understand their rights and options. Yet, the notice and pleading documents that should serve to encourage participation all too often do the opposite. This is no accident; such documents are frequently designed by the very landlords suing for eviction. To measure the impact of this practice, I investigate the usability and influence of the notice and pleading documents filed by landlords in one Arizona housing court. Through an analysis of three months of eviction data, I find suggestive evidence that tenants who receive landlord-created (as opposed to court-created) pleading documents are 16% less likely to attend their eviction hearing. I conclude by proposing two low-cost solutions: model eviction notice and pleading forms, and legislative and judicial solutions to mandate their use.
Briggs, Elijah C and Francis Ibekwe-Allagoa, ‘Frustration of Leasehold Contracts in Nigeria: A Case Review on the Tenets Espoused in Araka v. Monier Construction Company - Lessons in the Pandemic Era’ (SSRN Scholarly Paper ID 4050837, 6 March 2022) Abstract: The manifest twist and turns that emerge from the negotiation, conclusion and enforcement of contracts seldom come up when everything goes as contemplated and agreed by the parties. These readily foreseeable outcomes are easily accommodated as they were largely anticipated. The cookie begins to crumble when for certain uncontemplated and unforeseeable circumstances both parties find themselves unable to perform their respective obligations due under the contract – and then each rummages through the contract and tries to latch on any term to advance their claims for a breach of the contract with attendant remedies. The Supreme Court in Araka v. Monier Construction Company over three decades ago saw the need to enforce and expound the doctrine of frustration of contracts, being an offshoot of the legal consequences posed by the Biafra Civil War, after a long drawn legal sojourn from the High Court to the apex Court. This paper seeks to critically review the doctrines espoused in the locus classicus case and reflect upon them in the COVID-19 legal regime, where contracts, then and now, are fraught with the same matrix of facts and circumstances and proffers solutions on how the courts would eventually adjudicate upon same.
Brown Hayat, Norrinda, ‘Housing the Decarcerated: Covid-19, Abolition, and the Right to Housing’ (2022) 110(3) California Law Review 639–680 Abstract: The coronavirus pandemic revealed the need to advance the right to housing and abolition movements. The need for advancements in both spaces was no more painfully apparent than among the recently decarcerated population. Securing housing for the recently decarcerated is particularly difficult due to the ‘culture of exclusion’ that has long pervaded subsidized housing policy, enabled by a patchwork of federal laws, including the Anti-Drug Abuse Act (ADA) of 1988 and the Supreme Court’s ruling in HUD v. Rucker. The culture of exclusion is arbitrated by local housing authorities and works on three levels: eligibility, enforcement, and set asides. As a result, formerly incarcerated persons are often rejected outright during the application process. In addition, persons living in subsidized housing can be evicted for merely associating with the recently decarcerated. This Article seeks to motivate a pathway toward housing the decarcerated by ending the culture of exclusion. In Part I, the Article updates the status of the prison abolition and right to housing movements and argues why they are interdependent. Part II builds on the idea that stable housing for formerly incarcerated persons is essential to the prison abolition movement’s success by reviewing pilot programs. Part III suggests that ‘one strike’ policies have created a broader ‘culture of exclusion,’ which the Supreme Court validated in Rucker, further burdening the reentry process for the recently decarcerated. Finally, Part IV prescribes policy changes that are essential to housing the decarcerated beyond repealing the ADA and overturning Rucker, including transcending the narrative of innocence, directing public housing authority discretion, and equalizing voucher holders through civil rights laws.
Buhler, Sarah, ‘Pandemic Evictions: An Analysis of the 2020 Eviction Decisions of Saskatchewan’s Office of Residential Tenancies’ (2021) 35(1) Journal of Law and Social Policy 68–99 Abstract: On 11 March 2020, the World Health Organization declared a global pandemic due to the COVID-19 virus. Saskatchewan’s first COVID-19 case was detected the next day, and the Premier declared a provincial state of emergency a few days later. On March 26, the Government of Saskatchewan imposed a partial eviction moratorium, directing the Office of Residential Tenancies (‘the ORT,’ Saskatchewan’s housing law tribunal) to cease processing eviction applications for all but urgent situations involving risk to health or property. Saskatchewan’s partial eviction moratorium was in place until 4 August 2020. On the day the partial moratorium was lifted, active COVID-19 cases were declining in Saskatchewan. However, the worst of the pandemic was still ahead: case numbers started rising in October, and COVID-19 cases, hospitalizations, and deaths in the province reached their peak for the year in mid-December. Thus, eviction applications for all reasons were being processed by the ORT during the most serious and deadly phase of the pandemic. Between 1 January and 31 December 2020, over 1800 eviction cases were heard by the ORT. This study sought to understand the patterns and themes in these decisions and to answer several key questions including the following: What happened during the partial eviction moratorium and after it was lifted? Did the rising case numbers in the late fall of 2020 (after the partial moratorium was lifted) affect outcomes of eviction decisions made by the ORT? What other themes or patterns emerge in the decisions? The study included decisions from January, February, and March 2020 to help provide a ‘pre-pandemic’ comparator data set for its findings, and to be able to assess one entire calendar year of cases.
‘Civil Procedure (Amendment No. 5) (Coronavirus) Rules 2020 - Evictions Ban Extended to 20 September - England and Wales’ (2020) 277 Farm Law 9 Abstract: Highlights comments by Cecily Crampin of Falcon Chambers on the effect of the Civil Procedure (Amendment No. 5) (Coronavirus) Rules 2020, concerning the ban on evicting residential tenants in England and Wales that was introduced due to the COVID-19 pandemic, which is to be extended to 20 September 2020.
‘Coronavirus: Affordable Homes’ (2020) 23(5) Journal of Housing Law D88–D89 Abstract: Notes the July 2020 announcement by the Ministry of Housing Communities and Local Government that owing to delays arising from the coronavirus pandemic, new-build housing financed by the Affordable Homes Programme may begin by March 2023, rather than the original date of March 2022.
‘Coronavirus: Civil Procedure (Amendment No.2) (Coronavirus) Rules 2020 (SI 2020/582) Made: 9 June 2020 - In Force: 25 June 2020’’ (2020) 23(5) Journal of Housing Law D91 Abstract: Notes the passage of the Civil Procedure (Amendment No.2) (Coronavirus) Rules 2020, stipulating that previously stayed possession proceedings under the revised CPR r.55.29, together with new possession claims issued on or before 22 August 2020, are to be stayed until 23 August 2020. Highlights the range of claims to which the stay does not apply, and details the position under CPR PD 51Z (Stay of Possession Proceedings, Coronavirus).
‘Coronavirus: Copeland v Bank of Scotland Plc [2020] EWHC 1441 (QB) Freedman J’ (2020) 23(5) Journal of Housing Law D90–D91 Abstract: Notes Copeland v Bank of Scotland Plc (QBD) on whether it was appropriate to lift the stay imposed by CPR PD 51Z (Stay of Possession Proceedings, Coronavirus) in order to hand down a reserved judgment affirming a possession order against a mortgagor in arrears, subject to a stay of execution of the order and extension of time to appeal pursuant to PD 51Z.
‘Coronavirus: Hackney LBC v Okoro [2020] EWCA Civ 681 Sir Geoffrey Vos, Underhill, Simler LJJ’ (2020) 23(5) Journal of Housing Law D91 Abstract: Notes Hackney LBC v Okoro (CA) on whether the county court erred in staying, pursuant to CPR PD 51Z (Stay of Possession Proceedings, Coronavirus), an appeal against a possession order obtained in proceedings under CPR Pt 55, notwithstanding that appeals were governed by CPR Pt 52.
‘Coronavirus: Letter to Large Providers, Regulator of Social Housing’ (2020) 23(5) Journal of Housing Law D89 Abstract: Notes the July 2020 publication by the Regulator of Social Housing of an online letter to large private registered providers of social housing, notifying them of its intention to gradually increase its regulatory activity as the coronavirus pandemic subsides, and urging them to update their business plans.
‘Coronavirus: Managing Safety and Risk in Temporary Accommodation, Welsh Government’ (2020) 23(5) Journal of Housing Law D89–D90 Abstract: Notes the Welsh Government’s May 2020 online publication of non-statutory guidance on managing anti-social behaviour in temporary accommodation during the coronavirus pandemic, including advice on the options to be exhausted before individuals are removed.
‘Coronavirus: Protecting Rough Sleepers and Renters: Interim Report, Communities and Local Government Select Committee May 2020’ (2020) 23(4) Journal of Housing Law D62 Abstract: Highlights the May 2020 interim report by the Communities and Local Government Select Committee on how to safeguard homeless people during the coronavirus pandemic and when the restrictions are eased, and the position regarding the possible implementation of a pre-action protocol on rent arrears for private landlords. Note: the Select Committee’s Interim Report ‘Protecting Rough Sleepers and Renters’ is available on open access on the UK Parliament website.
‘Coronavirus: Rough Sleeping after Coronavirus’ (2020) 23(5) Journal of Housing Law D89 Abstract: Highlights the May 2020 announcement by the Ministry of Housing Communities and Local Government of its intention to deliver 3,300 new homes to vulnerable rough sleepers within the next 12 months. Notes the accompanying support to be made available, and the arrangements for interim accommodation.
‘Coronavirus: TFS Stores Ltd v Designer Retail Outlet Centres (Mansfield) General Partner Ltd [2020] EWCA Civ 833 Sir Geoffrey Vos, Asplin, Arnold LJJ’ (2020) 23(5) Journal of Housing Law D90 Abstract: Notes TFS Stores Ltd v Designer Retail Outlet Centres (Mansfield) General Partner Ltd (CA) on whether an appeal against a possession order made pursuant to a counterclaim for possession of a business tenancy was automatically stayed by virtue of CPR PD 51Z (Stay of Possession Proceedings, Coronavirus) and CPR r.55.29.
‘Coronavirus: Wales, Welsh Government’ (2020) 23(5) Journal of Housing Law D89 Abstract: Notes the Welsh Government’s online coronavirus-related press release announcing that viewings of empty properties, and house moves involving sales agreed but not completed, may resume from 22 June 2020.
da Costa Afonso, Ana Isabel, ‘The Juridical Impact of COVID-19 in Portuguese Tenancy Contract Law’ in Ewoud et al Hondius (ed), Coronavirus and the Law in Europe (Intersentia, 2020) Abstract: In response to the public health emergency derived from the COVID-19 disease, Portugal opted for a relatively strict lockdown. Most business activities were suspended and citizens were put under an obligation of confinement. This has created serious disruptions in people’s life and professional activities. In this paper we will address the specific measures the Portuguese legislator put into force to solve the problems aroused in tenancy contracts, namely, the adjournment of the obligation to pay rent and the suspension of eviction’s effects. Since the legislative measures do not have a general scope that could comprehend all of the tenancy contracts and provide only for a limited and very specific set of solutions, we believe that it is necessary to turn to other legal provisions of a more general approach in order to give an adequate response to the problems encountered in tenancy contracts as a consequence of the pandemic.
Cromarty, Hannah and Wendy Wilson, ‘Coronavirus: A Ban on Evictions and Help for Rough Sleepers’ (House of Commons Library, Briefing Paper No 08867, 25 June 2020) Abstract: This briefing paper explains measures the Government has put in place during the coronavirus outbreak to assist households to retain their homes and to enable local authorities to tackle the specific challenges faced by rough sleepers. The paper is being updated regularly to take account of new developments.
Crosby, Andrew and Morgan Nordstrom, ‘Socio-Spatial Insights into Evictions Governance and Tenant Movements During the Covid-19 Pandemic’ (SSRN Scholarly Paper No 4542352, 23 August 2023) Abstract: The COVID-19 pandemic and related economic effects have served to thrust rental housing insecurity into the public spotlight. Documenting the extent of pandemic displacement in the City of Ottawa and province of Ontario, Canada, this article provides insight on evictions governance, urban marginality, and social struggle. The socio-legal developments surrounding pandemic evictions offer a compelling case in which to analyze the governance of urban marginality in its various intricacies. During the pandemic, the Ontario government passed legislation to protect tenants from eviction, yet also passed legislation that criminalized tenants organizing against evictions. Tenants engaged in informal actions to stop evictions were met with the threat of formal legal sanctions; evictions moratoria—as a mechanism of care—were coupled with punitive forms of urban marginality governance, such as through evictions tribunals and the criminalization of dissent. Using a mixed-methods approach, we temporally and spatially map the scale and measure the impact of pre- and post-pandemic evictions—documenting that evictions tend to occur in areas with high core housing need and racialized neighbourhoods. We also examine the emergence of new social movements to fight displacement and assess the varied government and landlord responses—including evictions moratoria, tribunal eviction blocks, and the criminalization of tenant organizing.
Dixon, Bill, ‘Conveyancing and Property Law: Has COVID-19 Modified the Obligations of a Mortgagee Exercising Power of Sale?’ 39(2) The Queensland Lawyer 80-82 (pre-published version) Abstract: In HSBC Bank Australia Ltd v Wang, Holmes CJ was required to consider the potential impact of the COVID-19 pandemic on the good faith obligations of a mortgagee exercising power of sale. These issues arose for consideration in the context of an application for the removal of a caveat lodged by a defaulting mortgagor.
Dovar, Daniel and Piers Harrison, ‘Coronavirus: Code of Practice for Commercial Property’ (2020) 24(4) Landlord & Tenant Review D26 Abstract: Notes a Government Code of Practice for commercial property relationships during the coronavirus pandemic the has now issued. Note: Link to the Code of Practice for Commercial Property
Dube, Felix and Anél du Plessis, ‘Unlawful Occupiers, Eviction and the National State of Disaster: Considering South Africa’s Emergency Legislation and Jurisprudence During COVID-19’ (2021) 65(S2) Journal of African Law 333–346 Abstract: This article analyses how emergency regulations protected persons living in urban poverty, particularly unlawful occupiers, from eviction during the COVID-19 pandemic in South Africa. It is set against the socio-economic and environmental effects of unlawful occupiers being forced onto the streets through evictions. It examines the judicial interpretation and application of the COVID-19 regulations on the prohibition of the eviction of unlawful occupiers, together with remedies for compensation for demolished dwellings. Ultimately, the article shows that the regulatory and judicial responses to the pandemic were pro-poor and sought to protect human dignity, the right to life, and the right to an environment that is not detrimental to human health and well-being. The responses safeguarded access to housing at a time when many vulnerable people could have been rendered homeless by eviction and the demolition of their dwellings.
Ekhator, Ekhorutomwen Gabriel, Andrew Ogiribo and Samuel Iyobosa Ebughe, ‘The Impact of Pandemics Such as the COVID-19 and Other Unforeseeable Events on Leases: Force Majeure or Frustration?’ (SSRN Scholarly Paper No ID 3616831, 2 June 2020) Abstract: In a world of unforeseen occurrences and unpremeditated events, anything can happen. However, following the security consciousness of mankind, parties to a leasehold contract are usually mentally and obligatorily inclined to secure their contract thereby putting measures in place to oblige each other to perform his part in the contract. One of these efficacious measures that have been adopted by parties to a leasehold contract is the making and signing of lease agreements. Many a times, the landlord and his tenant carefully and with the help of an astute lawyer, draft a lease agreement to outline their obligations under the contract. While doing this they are careful enough to input when and how the contract should be put to an end such as including a force majeure clause to the lease agreement. Sadly sometimes, unforeseen occurrences make the contract impossible to carry out by either of the parties. In a bid to put an end to the contract, most times the tenant, resort to the store room of weapons which is the lease agreement, seeking clauses that he may use against the landlord to put an end to their contract. Unfortunately, he does not find any useful because the events he leans upon was never included in the lease agreement nor was it part of the force majeure clause. The recent outbreak of the 2019 Novel Corona virus (‘COVID-19’) in China and its widespread over the world has caused many business activities to come screeching to a halt, as many countries issue orders and advisories for residents to stay at home and for any nonessential business activities to be performed remotely. During this period of COVID-19, many businesses and tenants such as students do not have access to their premises, and this has called for a legal answer to the effect of the stay at home order on the lease. This article seeks to answer the questions; do pandemics such as the COVID-19 give rise to a frustrating event or force majeure? What position should the parties take when other unforeseen or unpremeditated events such as war, government restrictions, strikes, natural disasters, and acts of God make the contract impossible of being performed? The article also examines the position of landlord and tenant in the country during this ‘lockdown’ order.
El-Haija, Mohammed Ibrahim Abu, ‘Coronavirus Legislation and Obligations of Lessee in Jordan: Some Preliminary Reflections/Considerations’ (2022) 35(3) International Journal for the Semiotics of Law - Revue internationale de Sémiotique juridique 1059–1065 Abstract: This study focuses on discussing the choices of lessee in Jordan legislation because of a Defense Order in Curfew to face Corona Virus Disease 2019 and the impact of Corona virus disease 2019 (COVID-19) on the lessor obligation. The study finds out that the lessee has two options: to cancel the contract regarding force majeure or refuge to court and to reduce the fare amount regarding exceptional circumstances. The study also recommended issuing a Defense Order specifying the exact percentage to be reduced. In the absence of a Defense Order, the study of a friendly agreement should be recommended between the lessor and the tenant on the reduced percentage.
‘Eviction of Travellers and the Significance of the Pandemic’ [2020] (September) Housing Law Monitor 8–12 Abstract: Considers Chichester DC v Sullivan (HC) on whether evicting a large group of travellers from a site in an Area of Outstanding Natural Beauty, where there were no other authorised sites available, was a proportionate and necessary interference with the travellers’ rights under ECHR art.8 and Protocol 1 art.1. Notes the court’s consideration of the impact of the coronavirus pandemic on the analysis of proportionality.
Farha, Leilani and Kaitlin Schwan, ‘The Front Line Defence: Housing and Human Rights in the Time of COVID-19’ in Colleen M Flood et al (eds), Vulnerable: The Law, Policy and Ethics of COVID-19 (University of Ottawa Press, 2020) 355 Abstract: COVID-19 has laid bare the failure of Canadian governments to effectively implement the right to housing. In this chapter, we argue the pandemic presents Canada with the opportunity to correct the structural weaknesses of our housing system to ensure housing for all and reposition housing as a social good rather than a commodity. We explore how housing status has been determinative of outcomes for three vulnerable populations during the pandemic—people experiencing homelessness, survivors of intimate partner violence, and low-income renters. Their experiences demonstrate the urgent need for a rights-based approach to housing, highlighting the importance of breathing life into the National Housing Strategy and the National Housing Strategy Act. We argue that Canadian governments must act before this opportunity passes them by; otherwise they will find that though the pandemic itself is over, housing inequality has only worsened.
Finger, Davida, Kevin Callison and Isabella Smith, ‘Covid-19 Eviction Moratoriums and Eviction Filings: Evidence from New Orleans’ (2021) Housing and Society (advance article, published online 8 July 2021) Abstract: Securing stable housing to prevent the spread of infection during the COVID-19 pandemic remains a concern among policymakers in the US. In this article, we provide a descriptive analysis of the association between COVID-19-related eviction moratoriums and eviction filings in New Orleans, Louisiana. Beginning in March 2020, four separate moratoriums were implemented at the local, state, and federal levels that sought to restrict eviction filings in New Orleans. We collected data on evictions filed from January 2017 through November 2020 in the First City Court of Orleans Parish, the entity responsible for adjudicating the majority of eviction filings in New Orleans. We then examined the association between the various eviction moratoriums, the number of evictions filed, the estimated number of evictions temporarily averted, and the average suit dollar amount for filed evictions. Our results indicate that local and state moratoriums were effective at temporarily halting eviction filings. Federal moratoriums offering fewer protections reduced eviction filings by approximately 50%. We estimate that COVID-19-related eviction moratoriums temporarily averted 2,492 eviction filings in New Orleans between March and November 2020. The average suit amount for eviction filings that resumed following the expiration of local and state moratoriums doubled from pre- COVID-19 filing amounts.
Fontenot, Lily, ‘COVID–19, Housing and Evictions: A Comparative Case Study of Housing Law and Policy in the United States and Argentina through an International Human Rights Lens’ (2021) 53(1) University of Miami Inter-American Law Review 159-195 Abstract: This Note seeks to address the impact of international human rights obligations on domestic housing laws and policies through a comparative case study of Argentina and the United States. Specifically, it will discuss each country’s response to the COVID-19 pandemic, their housing obligations under international human rights law, and how each country is addressing their own unique housing and eviction crises. Finally, this Note will offer recommendations on how each country should modify their housing policies in light of the pandemic in order to comply with international human rights standards.
Franciosi, Laura, ‘Covid-19 and the Italian Legal System’ (2023) 15(1) Journal of Civil Law Studies 365–391 Abstract: COVID-19 hit Italy with particular violence. Then spreading around Europe and worldwide, the virus raised unprecedented issues requiring the implementation of urgent measures to prevent its propagation. This Article focuses on selected topics of the Italian civil law particularly affected by the rise of COVID-19 and tries to provide brief comparative remarks. Namely, after summarizing the most important events that occurred in Italy––originating from the discovery of the first Italian case of COVID-19 in Codogno––it outlines relevant social and legal scenarios. This Article also concentrates on commercial lease contracts, and subsequently addresses the legal implications of vaccination, with reference to the consent of incapacitated persons.
Furth, Salim, ‘When the Moratorium Expires: Three Quick Steps to Reduce Eviction’ (George Mason University, Mercatus Center Research Paper Series, Mercatus COVID-19 Response Policy Brief No ID 3664186, 19 June 2020) Abstract: Eviction moratoria are set to expire across the country, unemployment is high, and many renter advocates are predicting a ‘tsunami’ of eviction filings. In a legal eviction, a landlord obtains a court judgment against a tenant who has violated his or her lease, either by causing a nuisance or damage on the property or failing to pay. To reduce exposure to COVID-19 for all involved, many localities suspended eviction procedures in March 2019. The sudden end of moratoria will almost certainly result in a surge in eviction filings, if only owing to pent-up requests. Policymakers can avoid a drastic shock to the rental market by encouraging renegotiation, limiting the pace of evictions, and creating incentives for landlord forbearance.
Gaines, Brian J et al, ‘Eviction Expectations in the Aftermath of the Pandemic Moratoria’ (SSRN Scholarly Paper No 4669801, 19 December 2023) Abstract: The COVID-19 pandemic disrupted all aspects of normal life, including legal proceedings. As courts all over the United States shifted from in-person operations to hastily designed virtual proceedings, much changed. Research on how experiences with the justice system and case outcomes were altered by this disruption is early and ongoing, but some results are emerging, suggesting that online hearings had both pros and cons. Indeed, such work is not merely backwardlooking and of mainly historical interest, because many jurisdictions, having seen more gains than losses, are now making online court proceedings permanent for some matters. Evictions are a special case, because, during the pandemic, eviction hearings, rather than being shifted online, were mostly suspended. National, state-level, and even local moratoria prevented evictions for non-payment of rent—the basis of most evictions—and so even though most courts accepted eviction filings by landlords, hearings were largely put on hold. At the federal level, in March 2020, the CARES Act imposed a moratorium for evictions from covered properties (those whose owners received federal funding or had federal-government-backed mortgages) through July 2020. The Centers for Disease Control issued a moratorium for non-payment of rent in September of 2020, later extended, until the United States Supreme Court, in August 2021, lifted a further extension by the Biden Administration.
Gattegno, Julie, ‘Tenant Rescue and the Cross-Class Cram-Down’ (2020) 2039 Estates Gazette 54–57 Abstract: Compares the potential impacts on landlords of tenants entering company voluntary arrangements (CVAs) and adopting restructuring plans under the Corporate Insolvency and Governance Act 2020. Considers problems posed by CVAs and outlines grounds on which landlords might challenge them. Looks class composition under restructuring plans and explains the cross-class cram-down, a mechanism similar to that used for US Ch.11 insolvencies.
Ghazali, Robi Musthofa Al, ‘Boarding House Rent Refunds During Covid 19 Based on Sharia Economic Law’ (2022) 1(1) Nusantara Economy 38–47 Jurisdiction: Indonesia
Abstract: This research discusses the issue of returning boarding fees for tenants who do not stay at their boarding houses during the Covid 19 pandemic. Apart from that, this research also discusses the review of Islamic Economic Law. This research is field research. Respondents to this study were village heads, boarding house owners and tenants. The collection techniques used were observation, documentation, and interviews. The findings of this study are that the boarding house owner provides compensation for the cost of renting a boarding house during the Covid-19 pandemic. According to Sharia Economic Law, the return of this rental fee is appropriate and fulfils several conditions and pillars of the rental contract. However, tenants were disappointed during the Covid 19 pandemic because the rent payments were the same as before the pandemic; the tenants’ obligations continued to be carried out to pay the rent in full. The benefit rights obtained are not proportional to the payment in full. So, the practice of returning boarding house rent during a pandemic, according to Islamic economic law, is permissible as long as both parties are willing and do not harm both parties.
Gilgoff, Julie, ‘Land Redistribution in the Aftermath of the COVID-19 Pandemic’ (2021) 67(2) Wayne Law Review 212–252 Abstract: As the United States begins to emerge from the COVID-19 pandemic, there is a glaring need to redefine property law. Many who are concerned about the looming eviction and homelessness crisis are calling for policies that preserve ‘naturally occurring affordable housing’ before they are sold to private developers and converted to market rate rentals. This Article explores policies that preserve affordable housing and redistribute surplus vacant properties to those in need. Property theories that justify government-sponsored land redistribution assert that redistribution is necessary when the property system fails to provide a meaningful opportunity for the majority to own and enjoy adequate housing. In the midst of an unprecedented surge of homelessness that is sure to follow the lifting of eviction moratoria, this Article posits that self-help measures such as urban squatting should be tolerated in the absence of policies that achieve redistributive results. Historical examples of the legislature intervening to create redistributive policies, and to support squatter movements that defy property law, help support the conclusion that radical property reform is justified at this unique juncture, just as it was at various times since the founding of the United States.
Gilgoff, Julie, ‘Pandemic-Related Vacant Property Initiatives’ (2020) 29(2) Journal of Affordable Housing and Community Development Law 203–227 Abstract: With the rapid spread of COVID-19 in homeless shelters across the country, policies that provide socially distanced housing for society’s most vulnerable have been widely implemented. Hotels-that would have sat vacant while the economy was shut down-were temporarily repurposed to house the homeless. Once COVID-19 pandemic became an ongoing, rather than a short-term health crisis, governments began working to find longer-term housing solutions, like the ones featured in this article.
Gilman, Sam, ‘The Return on Investment of Pandemic Rental Assistance: Modeling a Rare Win-Win-Win’ (2021) Indiana Health Law Review (forthcoming) Abstract: We are facing an eviction crisis. The COVID-19 pandemic, has sent our economy into a tailspin forcing countless Americans to choose between feeding their families or having a roof over their heads. Many low-income people, especially low-income people of color, are facing an unprecedented economic crisis with tremendous rates of wage reductions and job loss. This has resulted in millions of Americans being unable to pay their full rents, creating the legal grounds for their landlords to evict them. As of early December 2020, more than 19 million individuals lived in households behind on rent, and more than 30 million did not believe they could make next month’s rent payments on time. For renters who are facing eviction and their landlords, the unpaid bills are piling up. Scholars, policymakers, and advocates have increasingly focused on a number of solutions to the eviction crisis including eviction moratoria and rental assistance, concluding that these solutions can stabilize households, especially when combined. Yet, the refrain is almost always that investing in national rental assistance programs will be expensive. However, few analysts have emphasized the financial costs of inaction. This paper presents an analysis that estimates the Return on Investment (ROI) of a number of different pandemic-related rental assistance programs by comparing the costs of rental assistance with the social costs of homelessness and displacement. As seen in Figure 1, this piece finds that rental assistance has a positive ROI of between 229%-473%. These ROI values point to the conclusion that failing to invest in rental assistance will cost dramatically more than making the investment now. The ROI analysis finds that rental assistance stabilizes both tenants and landlords, preserves neighborhoods, and protects government budgets over the long-term. More broadly the returns on rental assistance argue for a re-imagination of the eviction system. The conclusion that the estimated benefits of rental assistance eclipse the estimated costs of providing the funds by three or four times, suggests that rental assistance should supplant eviction as the social remedy for the inability to pay rent. In other words, keeping people in their homes during this pandemic and beyond is not only the right thing to do, economically it is the smart thing to do.
Gold, Sara, Toby Treem Guerin and Kerri McGowan Lowrey, ‘A Holistic Approach to Eviction Prevention During the COVID-19 Pandemic: Challenges and Opportunities for the Future’ (2022) 68(1) Washington University Journal of Law and Policy 183–213 Abstract: Many people suffered a loss of income during the COVID-19 pandemic, and many low-income renters became unable to pay rent to their landlords. Tenants without the ability to pay rent feared and faced eviction, and many were unaware of the legal eviction process or protections offered by federal, state, and local eviction moratoria. Anticipating a great need for legal and social services, four clinics within the University of Maryland (UMB) Carey School of Law’s Clinical Law Program joined forces in collaboration with the UMB School of Social Work to launch the Eviction Prevention Project (EPP). The EPP is a holistic, inter-professional, trauma-informed intervention through which clinical law students and social work students working under faculty supervision educated, advised, counseled, and represented low-income clients in two of Maryland’s largest jurisdictions. This Article describes the EPP model within the context of clinical legal education and shares insights about lessons learned after the EPP’s inaugural year for other programs seeking to do similar work.
Gomez-Ligüerre, Carlos and Rosa Mila-Rafel, ‘Residential and Commercial Leases Amidst the Corona Crisis: The Spanish Case in Context’ in Ewoud et al Hondius (ed), Coronavirus and the Law in Europe (Intersentia, 2020) Abstract: The Spanish emergency lawmaker has been prompted to take protective measures for tenants during the COVID-19 crisis. Such measures distinguish between residential and commercial leases. All of them are presented in the present contribution from a critical perspective. Commercial leases deserve special attention due to their economic relevance, and because of the intense debate among Spanish scholars on the applicability of the rebus sic stantibus doctrine, or any of its equivalents, to adapt the contract if commercial tenants are affected by the exceptional measures imposed by the Government to deal with the COVID-19 health crisis.
Heath, Annabel, ‘Lifting the Stay on Proceedings: More Questions than Answers’ (2020) 381 Property Law Journal 6–11 Abstract: Discusses the stay on residential possession proceedings, introduced by CPR PD 51Z (Stay of Possession Proceedings, Coronavirus), which is due to end on 20 September 2020. Reviews the steps that landlords will have to take to reactivate claims after this date, referring to CPR PD 55C (Coronavirus: Temporary Provision in Relation to Possession Proceedings) and the regime governing claims issued on or after 3 August 2020. Anticipates the defences tenants facing eviction may raise.
Herro, Anthony, ‘The Impact of COVID-19 on Commercial Leasing’ (2020) 71 LSJ: Law Society of NSW Journal 90–91 Abstract: On 7 April 2020 the National Cabinet adopted the ‘National Cabinet Mandatory Code of Conduct: SME Commercial Leasing Principles during COVID-19’ (the Code). The purpose of the Code is to impose ‘a set of good faith leasing principles for application to commercial tenancies’ between landlords and eligible tenants (ie those who are eligible businesses under the Federal Government’s JobKeeper program). The ‘Retail and Other Commercial Leases (COVID-19) Regulation 2020’ (the Regulations) gives effect to the Code in New South Wales. For the first time the Supreme Court of NSW has provided guidance on the implementation of the Code and the Regulations.
Hindle, Andrew, ‘Coronavirus and the Private Rented Sector: An Update’ (2020) 24(4) Landlord & Tenant Review 135–138 Abstract: Reviews developments in the private rented sector since the introduction of reforms made by the Coronavirus Act 2020, including a ban on forfeiture for non-payment of rent. Examines the position regarding stays of possession proceedings, commercial rent arrears recovery, moratoriums suspending creditors’ rights, prohibitions on winding-up petitions and suspension of liability for wrongful trading.
‘Homelessness Code of Guidance’ (2020) 23(5) Journal of Housing Law D95 Abstract: Notes the amendments made to the Homelessness Code of Guidance from 29 June 2020 in response to the coronavirus pandemic, including advice that local authorities carefully consider applicants’ vulnerability in regard to coronavirus.
Humphreys, Emma and Emma Preece, ‘What Has the Covid-19 Code of Practice Achieved?’ (2020) 2020 Estates Gazette 60–62 Abstract: Reflects on the performance of the Code of Practice for commercial property, which was published on 19 June 2020 to improve collaboration between landlords and tenants during the coronavirus pandemic. Lists the Code’s key provisions and speculates on how the landlord and tenant relationship will be managed in the future.
James, Sue, ‘We Have Another Government U-Turn but It Must Do So Much More to Protect Renters’ [2020] (September) Legal Action 5 Abstract: Discusses the importance of face-to-face advice in possession cases, the probable method of listing possession claims after the stay imposed in response to the coronavirus pandemic, including the use of review hearings, and the Government’s extension of the stay on possession cases until 20 September 2020. Suggests why better welfare benefit advice would help reduce rent arrears issues and reduce unnecessary court hearings.
Jebeile, Maged, ‘Legislative Response to COVID-19 Applying to Property Transactions in New South Wales’ (2020) 35(1/2) Australian Property Law Bulletin 19–22 Abstract: In what can only be described as unprecedented times, both federal and state governments seek to prepare for the impact of the COVID-19 coronavirus outbreak. The ‘COVID-19 Legislation Amendment (Emergency Measures) Bill 2020’ (NSW) was passed by both houses of NSW Parliament and received assent on 25 March 2020. Institutions such as NSW Land Registry Services (NSW LRS), NSW Office of the Registrar General (ORG) and the Australian Registrars National Electronic Conveyancing Council (ARNECC) have released statements setting out some guidance on conveyancing practices in response to increased social distancing measures put in place by the federal government. The federal Treasurer has announced changes to Australia’s foreign investment review framework. This article sets out an outline of the legislative response to COVID-19 and new conveyancing practices applying to property transactions in New South Wales.
Jebeile, Maged, ‘National Response to COVID-19: Business Loan Relief Packages and Code of Conduct for Commercial Leases’ (2020) 35(3) Australian Property Law Bulletin 42–45 Abstract: On 30 March 2020 the Australian Competition & Consumer Commission (ACCC) granted interim approval for the Australian Banking Association and banks to co-operate to offer COVID-19 affected Business Loan Relief Packages (including Landlords). On 7 April 2020, the National Cabinet approved a mandatory Code of Conduct (
Jones, Gareth Lynton, ‘How Can Landlords Boost Cash Flow?’ (2020) 2036 Estates Gazette 43 Abstract: Offers advice for commercial landlords on how to adjust operating models and improve cash flow in light of the COVID-19 pandemic. Warns of the potential pitfalls of turnover rents. Considers how the type of economic recovery might affect a landlord’s cash flow, the lender-landlord relationship, possible repercussions of evicting non-paying tenants, and operating model outsourcing.
Langowski, Jamie et al, ‘Qualified Renters Need Not Apply: Race and Housing Voucher Discrimination in the Metro Boston Rental Housing Market’ [2020] Georgetown Journal on Poverty Law Policy (forthcoming) Abstract: Black, Indigenous, and People of Color have long had to navigate the barriers of racist laws, policies, and actions in housing. Housing discrimination perpetuates segregation and contributes to maintaining the status quo of disparities with respect to health inequities as well as income, wealth, and opportunity gaps. The COVID-19 pandemic has put these inequities in stark relief. Data on the current status of such discrimination is valuable for policy makers who should develop anti-racist policies that dismantle structural racism and its attendant harms.Using matched-pair testing, we measure the level of discrimination based on race and income level in the Greater Boston rental housing market, where both race- and income-based housing discrimination is illegal. Data from the study show high levels of discrimination against both black people and individuals using housing vouchers throughout the pre-rental application.
Larkin, Paul J, ‘The Sturm Und Drang of the CDC’s Home Eviction Moratorium’ (2021) Harvard Journal of Law and Public Policy (forthcoming) Abstract: The pandemic that has roiled the globe since late in 2019 has begun to have the same effect on the law. Beginning in March 2020, Congress, former President Donald Trump, and current President Joe Biden have engaged in a pas de trois, taking turns directing the U.S. Centers for Disease Control and Prevention (CDC) to issue nationwide moratoria preventing qualifying tenants from being evicted for not paying their rent. Most recently, Biden, bowing to political pressure to prevent evictions from restarting after more than a year’s delay, ordered the CDC to issue yet another moratorium, and, on August 3, 2021, the CDC did so. As it had done for some of its earlier orders, the CDC relied on a 1944 statute, the Public Health Service Act. The CDC did so even though, prior to 2020, the CDC had never before invoked that law as a rental protection device or an indirect form of rent control. Landlords, real estate companies, and trade associations have brought a series of lawsuits challenging both the CDC’s statutory authority to issue those orders and their constitutionality. One case reached the Supreme Court of the United States, twice in fact. The first time, by a 5-4 vote the Court seemed to agree with the plaintiffs that the CDC had exceeded its statutory authority but none-theless denied them injunctive relief pending appeal because one justice guessed that the few remaining weeks of the moratorium would enable an orderly distribution of appropriated but undisbursed federal rental assistance funds. By contrast, when the case reached the Court a second time, the Court, by a 6-3 vote, granted the plaintiffs interim relief went out of its way to belittle the government’s argument, sending a strong message of displeasure at having to revisit the issue. This Article will address the legality of the CDC’s August 3 moratorium: Part I will describe the steps that Congress and the President have taken to prevent a new and often fatal virus from engulfing the nation and killing a large part of its population. That discussion will include a history of the different CDC eviction moratoria. Part II will summarize the litigation that has unfolded since the moratoria went into effect, focusing on the Supreme Court’s two orders in Alabama Association of Realtors v. Department of Health and Human Services. The Supreme Court did not issue a final ruling on the meaning of the statute, so Part III will analyze whether the CDC has the power to issue its August 3 order. Part IV asks why Biden directed the CDC to enter that order and what the long-term consequences might be for him by having done so.
Layser, Michelle D et al, ‘Mitigating Housing Instability During a Pandemic’ (University of Illinois College of Law Legal Studies Research Paper No 20–15, 29 May 2020) Abstract: Housing instability threatens to impair the United States’ policy response to the COVID-19 pandemic by undermining public health strategies such as social distancing. Yet, mitigation of housing instability has not been the focus of early emergency legislation, including the Coronavirus Aid, Relief, and Economic Security Act (CARES Act), which has focused on providing cash support to individuals and businesses. Although many of these laws have the potential to reduce housing instability, this Working Paper argues that they face barriers to effective implementation and take-up akin to those that hindered similar interventions during the Great Recession. These barriers—which include administrative hurdles, reliance on voluntary participation, resource constraints, and political pushback—may prevent these interventions from realizing their full potential. As a result, despite the unprecedented amount of aid that the CARES Act directs to individuals, the implementation of these aid programs may fail to effectively mitigate housing instability. For this reason, additional rental assistance and mortgage payment assistance may be necessary to prevent loss of housing that ultimately exacerbates the public health crisis. We also recommend a new civil right to counsel in eviction cases and targeted place-based interventions to promote affordable housing development where it is needed most.
Lehavi, Amnon, ‘Temporary Eminent Domain’ [2021] Buffalo Law Review (forthcoming) Abstract: Times of emergency call for drastic measures. These steps may include the physical takeover of privately-owned assets by the government for a certain period of time and for various purposes, aimed at addressing the state of emergency. When will such acts amount to a taking, and what compensation should be paid to the property owner? How do temporary physical appropriations during times of emergency diverge, if at all, from temporary takeovers in more ordinary times? The doctrinal and theoretical analysis of potential temporary takings has been done mostly in the context of non-physical government intervention with private property, such as when a local government imposes a temporary moratorium on land development until a certain condition is met. This Article focuses, however, on less investigated scenarios of temporary physical takeovers or other forms of government invasions. It seeks to identify the differences between a temporary invasion and a permanent occupation of property considered per se taking under the Loretto rule. In so doing, this Article argues that while the alleged distinction between prevention of public harm and promotion of public benefit often proves untenable in evaluating whether a permanent government measure constitutes a taking, it might make more sense in exploring temporary acts.Temporary eminent domain - referring here to various types of acts amounting to time-limited physical takings, even if not initially recognized as such by the government - may diverge from permanent eminent domain in yet another key element: identifying the basis for just compensation. Under long established (although often criticized) rules, compensation for a permanent taking is based on identifying the ‘fair market value’ of the rights taken, while ignoring the effects that the public use for which the underlying asset is taken might have on the property’s long-term value. The allegedly parallel metric used in the case of temporary takings, one of ‘fair rental value,’ may often prove inadequate, both practically and normatively. This Article argues that because of unique aspects of temporary physical takings, legal rules on compensation should often seek to identify lost profits or actual damage. Moreover, in some cases, in which there is a direct relation between the pre-appropriation use of the asset and its post-appropriation use by the government, just compensation might also be based on a certain portion of the value of the public use. This is especially so when the time-sensitive value of the asset during such public use is particularly high. On this point, the Article offers an analogy to rules pertaining to compulsory licenses for patents.
Lorvick, Jennifer et al, ‘Decreased Homelessness among Women Involved in the Criminal Legal System after a COVID-19 Housing Intervention’ (2022) Journal of Social Distress and Homelessness (advance article, published online 12 April 2022) Abstract: The COVID-19 outbreak fueled unprecedented public health efforts to mitigate the spread of infection, including rapid provision of non-congregate housing to people experiencing homelessness. People on community supervision (criminal probation or parole) have high levels of homelessness due to housing discrimination, poverty and racism, and are among the groups most vulnerable to COVID-19. We examined housing status in a cohort of women with probation histories in Alameda County, CA before and after the COVID-19 outbreak (N = 204). Before March 2020, 38% of women in the cohort reporting being homeless (95% CI: 34–43%), a level that was consistent over 12 months. As of August 2020, 15% of the cohort was homeless (95% CI: 10–20%; relative risk [RR] 0.40, 95% CI: 0.28, 0.55; p < 0.001). During a period of assertive public health efforts to reduce COVID-19 risk through provision of housing, we found meaningful reductions in homelessness in this sample of vulnerable women.
Martin, Chris, ‘Australian Residential Tenancies Law in the COVID-19 Pandemic: Considerations of Housing and Property Rights’ (2021) 44(1) UNSW Law Journal 197 Abstract: In response to the COVID-19 pandemic, Australian states and territories implemented eviction moratoriums and measures to vary rent obligations – a remarkable response for jurisdictions that have, for decades, regulated residential landlord-tenant relations on a model of mild consumer protection, market rents and ready termination. This article examines the COVID-19 emergency measures and their implications for tenants’ housing rights, and landlords’ property rights. After reviewing the Australian rental housing system’s structure and legislative framework, the article examines in detail the COVID-19 emergency measures regarding evictions and rents in each state and territory. These vary in form and content, mostly on a pattern of additional protection from eviction for a core ‘hardship’ group, and variation of rents by individual negotiation. The article considers problems in the emergency measures, and points on which enduring reforms may be built, as well as critically appraising the argument that property rights protections limit the scope for reform.
Martin, Chris, ‘Australia’s Incipient Eviction Crisis: No Going Back’ (2021) 46(2) Alternative Law Journal 134–140 Abstract: Before the COVID-19 pandemic, Australia was facing an incipient eviction crisis, the gravity of which had been obscured by inadequate data and the gradual mounting of systemic problems of unaffordability and insecurity. This article reviews the legal framework around tenancies and evictions and the sparse data it produces. Tribunal data obtained by the author shows that Australia’s two largest jurisdictions had, prior to the pandemic, a termination application rate somewhat more than half that of the US ‘crisis’ rate. The article concludes with directions for further research and reforms to address evictions in an enduring way, beyond the COVID-19 pandemic.
Martin, Chris, ‘A Brief History of Australian Residential Tenancies Law Reform: From the Nineteenth Century to Covid-19’ (2020) 33(5) Parity 4–6 Abstract: Australia is currently going through a period of unusual activity in residential tenancies law reform. New South Wales, Victoria and the Australian Capital Territory (ACT) have recently concluded reviews and amended their legislation, and Queensland, Western Australia and the Northern Territory are currently in the midst of reviews. South Australia and Tasmania reviewed and amended their respective Acts a little before the current wave of reform, both in 2013. The federal government has also indicated its interest, nominating ‘tenancy reform that encourages security of tenure in the private rental market’ as a ‘national housing priority area’ under the current ‘National Housing and Homelessness Agreement’ (Schedule A2). And breaking over the current wave of law reform are the Covid-19 emergency amendments, implementing eviction moratoriums and temporary regulations around rents.
Mashishi, Thato, ‘To Pay or Not to Pay in the Context of COVID-19’ (2020) 20(5) Without Prejudice 55–56 Abstract: To pay or not to pay has become an imperative question asked by retail tenants in the context of rental due pursuant to lease agreements. The question is raised in the wake of an extension of the lockdown as announced on 9 April by President Cyril Ramaphosa.
Mukherjee, Gaurav, ‘Evictions, Demolitions, and Responsive Constitutionalism in the COVID-19 Lockdown in Cape Town’ (SSRN Scholarly Paper No ID 3744891, 8 December 2020) Abstract: In this article, I comment on the judicial responses to several incidents of eviction and demolition of illegal structures during the COVID-19 lockdown by Cape Town City officials, including members of the Anti Land Invasion Unit. The cases implicate complex legal questions, many of which are heavily contingent on factual situations: first, whether it was permissible for City Officials to conduct evictions and demolitions when they had been specifically disallowed by section 36(1) of Alert Level 3 Regulations; second, whether the protections afforded by the PIE Act extends to structures which may not be fully completed nor occupied; third, the relationship between the common law remedy of counter-spoliation and its applicability to situations of land invasion where housing rights and judicially supervised eviction and demolitions are concerned, and fourth, the constitutionality of the manner of determination of whether a structure is built or occupied – the response to which determines whether the provisions of the PIE Act kick in. Finally, I also comment on the accountability of private actors tendered to carry out evictions and demolitions – which may create perverse incentives to maximize their numbers, with little regard for constitutional safeguards.
Mysiak, Piotr, Volodymyr Zubar and Dmytro Pestruiev, ‘Conducting Other People’s Affairs Without a Power of Attorney in a Pandemic: Poland and Ukraine’ 9(2) Ius Humani. Law Journal 87–110 Abstract: The Covid-19 coronavirus pandemic has caused changes in all areas of human life. The field of law is no exception to this list. In particular, the issues of conducting other people’s affairs without a power of attorney have become especially relevant, as social distancing and restrictions on social activity have led to a significant increase in the practical need for the application of this legal institution. The significance of this study is also important in connection with the comparative analysis of the normative aspect and the practical measurement of the application of the institute of conducting other people’s affairs without a power of attorney in Ukraine and Poland. These two countries are comparable in territory, number of citizens, legal tradition, but Poland has become member of the European Union, while Ukraine has remained on the sidelines of European civilization. The dialectical method, the method of comparative analysis and system analysis were chosen as the methodological basis of the research. The authors of the article concluded that institute of conducting other people’s affairs without a power of attorney is characterized by an increased level of social utility. In such cases, the one who protects the interests of others without a power of attorney, as a rule, acts not only in the interests of the individual but also in the interests of the society. Thus, it helps to protect single people, the elderly ones, disabled individuals and other groups which are socially unprotected and thus prevent the pandemic spread.
Niebel, William, ‘The Process Due When Rent Is Due: Residential Nonpayment Evictions in New York after COVID-19’ (2021) 49(2) New York Real Property Law Journal (forthcoming) Abstract: At this critical juncture, to prevent homelessness and the unnecessary displacement of families, it is imperative to review New York nonpayment eviction law, with a focus on the procedural protections available to tenants. Additionally, New York’s Housing Stability and Tenant Protection Act (HSTPA) of 2019 dramatically changed the eviction process only months before the COVID-19 pandemic hit. And laws enacted during the pandemic, such as the Tenant Safe Harbor Act, will continue to affect housing practice going forward. Thus, for the benefit of judges and advocates alike, it is important to highlight the unsettled issues that must still be litigated. This article considers the New York nonpayment eviction process chronologically. It first addresses the pre-commencement notices to which tenants are entitled. Then it discusses the court eviction proceeding and warrant process, with an emphasis on tenant protections that are built into the law.
Njiri, Kenneth, ‘The Tenants’ Right to Housing in Kenya: Is There Need to Address This Issue during the Covid-19 Pandemic’ (SSRN Scholarly Paper No ID 3582391, 22 April 2020) Abstract: The Covid-19 pandemic has changed the lives of people in the world. Most of the governments have imposed restrictive measures on movement and association to ensure that the disease does not spread further into their countries. The government of Kenya has imposed a curfew to restrict movement of the disease. Further, there are regions in Kenya where movement into and out of those regions has been curtailed. The livelihoods of Kenyans from all walks of life have been distracted. Jobs have been lost. The economy of the country is dwindling. Kenyans have been advised to stay at home. The prevailing circumstances have forced some of the Kenyans to stay at home.The directive to stay at home to fight the pandemic presents a unique situation in the country. It requires people to stay indoors to reduce the transmission of the illness. The ball falls into the court of each and every citizen to seek shelter. However, due to the loss of jobs, most of the Kenyans wonder whether they will have shelter. The tenants, who have no source of income at the moment, wonder where they will get the money to pay their landlords to ensure they are not kicked out of their houses. Further, due to the declining economy, most of the tenants do not have sufficient cash to pay their rent. Failure to pay rent will render them homeless. Is there need to address this issue? Should we allow the landlords to deal with the tenants who do not pay rent? In my paper, I seek to address this delicate issue. To begin with, I will balance the rights between the landlord and the tenant. Later, I will recommend on what is to be done to ensure that this issue is resolved amicably.
Nolon, John R, ‘Pandemics and Housing Insecurity: A Blueprint for Land Use Law Reform’ (2022) 46 Vanderbilt Law Review (forthcoming) Abstract: COVID-19, racial inequity, housing insecurity, and climate change have come together to create widespread, large-scale crises. This Article introduces these four pandemics and describes in detail what local governments are doing to combat one of them: housing insecurity. It reviews recent progress with traditional inclusionary zoning requirements, discusses the move toward greater density in single-family zoning, lists strategies being used to remediate distressed housing, and notes the importance of affordable housing as a necessary strategy for preventing lower-income household displacement caused by gentrification. The reciprocal impacts of these four pandemics are clear; local land use leaders should examine how mitigating one issue can ameliorate the others. The critical public health threat of these four pandemics is a central concern for local leaders—they are called upon to react quickly to issues that move slowly through the state and federal policy reform processes. Local engagement with these problems and local need for technical and financial support put positive pressure on officials at higher governmental levels to respond more quickly to these pressing concerns.
Novasky, Michael and Tina Rosales, ‘Mental Health And Homelessness In The Wake Of Covid-19: The Path To Supportive And Affordable Housing’ (2020) 168(Special Issue: Law Meets World) UCLA Law Review Discourse 130 Abstract: The COVID-19 pandemic has shone a bright light on the public health crisis faced by people experiencing homelessness, and particularly those with mental illnesses. The lack of clean, safe, and affordable housing in the United States’s largest cities, and the limited access to supportive care for people experiencing symptoms of mental illness, is emblematic of not just this current crisis, but of the longstanding inadequacies in our housing policies and the need for swift, long-term action to address them. While cities are stuck responding to this emergency with temporary measures to protect residents of their emergency shelter systems by moving them away from crowded congregate care settings to other forms of temporary housing, advocates are pushing for more comprehensive plans which appear to be gaining some political traction. In turn, many of these emergency solutions may have planted the roots of a healthier and more humane model of temporary housing, one that better addresses the needs of the chronically homeless and those suffering from mental illnesses. Now is the time to create a model for addressing our homelessness crisis that is based on affordable, stable, and supportive housing and, more importantly, on a human right to guarantee that it is permanent and available to all.
Odinet, Christopher K, ‘Modernizing Mortgage Law’ (2021) 100(1) North Carolina Law Review 89–165 Abstract: Modern mortgage law is designed for a world that no longer exists. The residential mortgage transaction of today looks nothing like it did during the formative period when the property laws governing mortgages were developed. What was once a local dealing between two individuals and largely for commercial or quasi-commercial purposes has now become a housing-centric financial transaction-turned-asset between multiple distant and often invisible parties that operate as part of a national market. Yet, although the mortgage transaction has changed, mortgage law has not. Property law rules that once balanced the rights of mortgagors and mortgagees now completely fail to furnish aggrieved homeowners with meaningful relief when faced with wrongs that stem from the complexities of the securitization of mortgage loans and the acts of intermediaries. The result is that consumers suffer wrongs at the hands of mortgage creditors and their contractors but have no remedies to right them. This is particularly true in light of the economic fallout from the COVID-19 pandemic and the threat of a coming wave of foreclosures that, if the 2008 financial crisis is any indication, promise to leave households vulnerable and completely at the mercy of the mortgage finance machine. This Article shows why an overhaul to residential mortgage law’s most basic doctrines is long overdue.
Ominde, Daniel, ‘Challenges Posed by the Outbreak of COVID-19 and the Need for a Presidential Directive to Protect the Poor from the Whims of Unscrupulous and Inhuman Landlords’ (SSRN Scholarly Paper No ID 3703335, 25 April 2020) Abstract: This paper was written when the COVID-19 pandemic had just started spreading in Africa, and specifically Kenya. The paper took into account the fact that Kenya is a third world country, where many people live from hand to mouth. It also factored in the reality that many Kenyans are engaged in the informal sector which was struck so hard by the pandemic. The paper acknowledged that those effects negatively impacted on the ability of many Kenyan to pay their rents and meet other basic needs at the same time. Many Kenyans, therefore, faced eviction, from their residents as they had to strike a delicate balance between rent and food.This paper sought to encourage the President of the Republic of Kenya to issue an Executive Order that would have seen the landlords and tenants (who could not afford rent during the pandemic) enter agreements to pay rent after the pandemic. Additionally, the paper required such Order to also trigger agreement between real estate investors and mortgagors to suspend the payment of mortgage for debtors who could not afford the same during the pandemic. These arrangements were meant to ease the satiations of many Kenyan who were deprived of socio-economic rights under Article 43 of the Constitution of Kenya 2010.
Othman, Imtiyaz Wizni Aufa binti and Izyan binti Nazim, ‘Modifications to Hire Purchase Act 1967 and Housing Development (Control and Licensing) Act 1966: Protection to Purchaser and Financial Institutions Interests During Covid-19 in Malaysia’ (International Proceeding: Law and Development in the Era of Pandemic, Faculty of Law, Universitas Islam Indonesia, 28 November 2020, 2021) 72–83 Abstract: In containing the spread of Covid-19, the Malaysian government has imposed the Movement Control Order (MCO) starting from March 2020, which led to a halt in the progress of several sectors, including the hire purchase and housing development sectors. Realising several parties’ financial and legal implications due to the MCO, the government has recently enacted new legislation as a temporary measure to curb the issue. The new Covid-19 Act received two-edged feedback from the society as some claimed that the Act is just too late, and the others argued on its efficiency to help the consumers due to its lack of clarity. Thus, the question that this paper seeks to resolve is whether the new Act does protect the interest of the parties involved? To answer this, this paper analyses the modifications made to the existing Hire Purchase Act 1967 and Housing Development (Control and Licensing) Act 1966 by discussing four sub issues, namely (i) whether the relief given in section 23 forms unfair leniency against the owners, (ii) whether section 24 of Covid-19 Act is a necessary clause (iii) whether the Act protects the interest of the housing developers and purchasers because of the existence of Section 37 and (iv) whether the lack of the consequences in the event of contravention and guidelines for application limit the Act’s effectiveness. Literature review methodology is applied to identify the gaps in the modification to the existing law by studying publications and news articles on the matter. By the end of the study, this paper finds that the Covid-19 Act does have the provisions intended to protect consumers but with the absence of specific provisions covering financial institutions. The saving clauses in the said modifications are found to be highly questionable and calls for analysis and amendment. This paper finds critical points within the Covid-19 Act, such as the need to study and amend the saving clauses and improving the clarity and exactness of the provisions.
Palumbo, Andrea and Karmen McQuitty, ‘Tenant Rights in the Era of Covid-19’ (2020) 77(5) Bench & Bar of Minnesota 36–38 Abstract: Do you remember what you thought when you realized the magnitude of the covid-19 pandemic? Did you worry about whether you’d be able to pay your rent or mortgage? Or that you would suffer financially? For millions of people the financial impact was, and continues to be, a significant result of this pandemic. For renters in particular, the pandemic has presented unique challenges—both in paying rent and seeking relief under current (and future) leases. The law governing landlords and tenants is codified in Minnesota statutes and city ordinances. Evictions are one part of landlord/tenant law, and certainly the most contentious. An average of 17,000 evictions are filed every year in Minnesota.1 Hennepin and Ramsey counties account for the lion’s share of filings and more than a third of the evictions in the state. Evictions can be filed for nonpayment of rent, breach of the lease, or holding over after a notice to vacate. The majority of cases filed are against tenants who have not paid rent under their lease. By design, most eviction cases move quickly. Minnesota law requires that the first appearance in a case occur between seven and 14 days after a summons is issued.2 Expedited cases, brought on the basis that a renter is causing a nuisance, engaging in illegal activity, or endangering the safety of other residents or the landlord’s property, move even faster. These are summary proceedings and a tenant’s first appearance is often their only appearance in the case.
Parker, Brenda and Janet Lynn Smith, ‘Policy Spotlight: Women’s Housing Precarity During and Beyond Covid-19’ (SSRN Scholarly Paper ID 3896504, 29 July 2021) Jurisdiction: USA
Abstract: As state and federal eviction moratoriums expire, millions of people across the country face the possibility of losing their homes, and the disparate impact of COVID-19 on women’s economic prospects makes them especially vulnerable to eviction. This Policy Spotlight illustrates how everyday gender disparities contribute to housing instability for women and describes how COVID-19 amplified these disparities. The authors offer suggestions for policymakers looking to not only stem the coming wave of evictions but also to help women and families find long-term stability.
Patel, Khushbu, ‘COVID-19 Policies & Their Impact on Housing and Health Outcomes in the City of Chicago’ (2023) 24(1) DePaul Journal of Health Care Law 31–57 Abstract: The COVID-19 mandates and policies that were implemented by both the state of Illinois and the City of Chicago, such as the eviction moratorium, dramatically improved health outcomes by alleviating the financial stress of many households. Discussing social determinants of health and evaluating the impact that each social determinant had on housing and health outcomes allows for an in-depth look at the overall concept of housing in Chicago and the health outcomes of low-income individuals. Comparing the housing laws in place before COVID-19 at the federal, state, and local levels allows for analyzing the impact of the COVID-19 policies and state mandates in response to the pandemic. This paper will discuss the positive and negative impact of these policies and executive orders on housing in Chicago. Thus, highlighting the future importance of affordable housing in Chicago and health outcomes.
Price, Shannon, ‘Stay at Home: Rethinking Rental Housing Law in an Era of Pandemic’ (2020) 28(1) Georgetown Journal on Poverty Law & Policy 1–33 Jurisdiction: USA
Abstract: For more than a decade, scholars across disciplines have documented housing insecurity as a chronic condition of working poverty in the United States. Now, the COVID-19 economic crisis threatens a tsunami of pandemic-induced evictions. Widespread government mandates to ‘stay at home’ ring hollow as eviction filings pile up in local courts, while tenant blacklisting ensures that the consequences of an eviction today will haunt a tenant for years. By offering an in-depth survey of lease-termination requirements and the role of housing conditions and retaliatory eviction across states, this Article illustrates the practical impact of subtle variations in landlord-tenant law on poor tenants facing eviction. It reviews a sampling of state housing policy responses to the pandemic and proposes concrete reforms to the law designed to mitigate power imbalances between landlords and tenants and slow the cogs of the Eviction Economy. The COVID-19 pandemic is a tragedy of unprecedented scale. It is also a call to action. The decisions that state and local governments make on housing policy in the coming months will alter the course of thousands of lives. America’s Eviction Economy stands to compound the worst economic effects of the pandemic. It is the sincere hope of the Author that state and local governments do not allow this result.
Rachwał, Aleksandra, ‘Eviction Moratorium in the New York State During the COVID-19 Pandemic: Development and Analysis of Legal Solutions’ (2023) 24 Ad Americam 115–128 Abstract: The work aims to analyze and compare the development of the legal solutions for the eviction crisis that were introduced during the COVID-19 pandemic in the New York State by each branch of the authorities. The issue will be studied by analyzing documentsintroduced by the legislature, executive branch and judiciary, dealing with the prohibition of evicting tenants from residential and commercial premises during the COVID-19 pandemic. The paper will analyze short-term solutions in the form of ordinances, as well as long-term solutions in the form of laws. Furthermore, it will try to demonstrate the minor contradictions, problems, and complexities involved with the bifurcation of the introduced legal solutions, and to show that eviction moratoria in the New York State did not provide total protection and assistance to tenants, as well as that their solutions were rather short-term. The paper will also present solutions from the federal level and compare them to state solutions in order to show the difference in approach. The article will also demonstrate that acting at the state and local level, on a smaller scale, is more effective because it is easier to reach a specific group of stakeholders. Moreover, a change in the nature of legal solutions introduced at the state level will be observed, which was caused by the change of a governor general of the New York State and the Supreme Court’s ruling that one of the laws was illegal — the paper will show how this ban was circumvented by the new state authorities.
Raffish, Brett, ‘Arbitrary Property Interference During a Global Pandemic and Beyond’ (2022) 45(1) Harvard Journal of Law and Public Policy 407–463 Abstract: To stymie COVID-19’s spread, state and local governments imposed sweeping and burdensome lockdown measures that crushed American businesses and interfered with private property. Despite interfering with many Americans’ property rights, state and local governments have consistently prevailed on pandemic-related regulatory takings claims in federal court. By forcing governments to pay for deprivations, the Takings Clause can thwart arbitrary interference with private property. However, the dispensation of regulatory takings claims arising out of pandemic-related regulations suggests that the Takings Clause may presently fail to adequately thwart arbitrary property interference in the partial regulatory takings context when the government claims that it is acting in the name of public health or safety.This Note expands on existing literature and details how substantive due process may presently only protect property from extremely arbitrary or despotic interference. This Note then argues that when substantive due process fails to thwart arbitrary interference, the regulatory takings doctrine will also fail to shield property when interference is substantial but is made pursuant to states’ police powers. Because both doctrines may simultaneously fail to stymie arbitrariness, this Note contends that our Republic may constitutionally tolerate arbitrary property interference, a phenomenon highly detrimental to the rule of law. To incentivize legitimate and principled decision-making, and to protect private property from arbitrary interference, this Note urges states to pass laws that resemble the Texas Private Real Property Rights Preservation Act. These laws should, at a minimum: (1) require governments to compensate property owners for regulatory diminutions in property value that exceed a legislatively calibrated threshold; (2) excuse compensation when governments can satisfy a form of heightened scrutiny; and (3) permit governments to seek immunity from a law’s requirements in exigent circumstances.
Ramadhani, Rahmat, ‘Eradication of Soil Mafia in the Post-Covid-19 Pandemic Based on National Law and Islamic Law’ (2022) 3(1) Proceeding International Seminar of Islamic Studies (INSIS) 678–686Jurisdiction: Indonesia
Abstract: The land mafia takes advantage of land scarcity with land related parties for various purposes. The Ministry of Agrarian Affairs and Spatial Planning (ATR)/National Land Agency (BPN) as the institution most responsible for land administration is still paying attention to the existence of the land mafia. It is necessary to know about the workings of the land mafia who will always seek information about the development of land prices in certain areas by the Local Government such as the Regional Government. This research uses normative law research methods (Normative Law Research). In accordance with the type and nature of the research, the data sources used are secondary data consisting of primary legal materials and secondary legal materials consisting of books, scientific journals, scientific papers and articles that can provide an explanation of primary legal materials. Various efforts were carried out by the government to achieve the goal of eradicating the land mafia, among others through the implementation of land registration as regulated in PP No. 24 of 1997 concerning Land Registration. Indonesia’s national law that discusses the eradication of the land mafia is contained in the Technical Instructions of the Ministry of Agrarian Affairs and Spatial Planning/National Land Agency on Prevention and Eradication of Land Mafia. The land mafia is an act of usurping the rights of others, in Islam it is threatened to be hung around his neck from the seven layers of the earth. Sheikh Abdul Azhim bin Badawi al-Khalafi quoted from the Almanhaj page. said, from Sa’id bin Zaid radhiyallahuanhu, he said, "I heard the Messenger of Allah sallallaahu 'alaihiwasallam say ‘Whoever takes a little land in an unjust way, then (Allah) will hang it from the seven layers of the earth’. From Salim from his father Radhiyallahuanhuma, he said, "The Prophet sallallaahu 'alaihiwasallam said: "Whoever takes a small amount of land in a way that is not justified, then he is immersed in the soil on the Day of Resurrection up to seven layers of the earth.”
Ramadhani, Rahmat and Rachmad Abduh, ‘Legal Assurance of the Land Registration Process in the Pandemic Time of Covid-19’ (2021) 4(1) Budapest International Research and Critics Institute (BIRCI-Journal): Humanities and Social Sciences 348–358Jurisdiction: Indonesia
Abstract: Circular work from home for land office employees needs to be examined whether there is a change in the mechanism in legal certainty of land registration during the Covid-19 pandemic, whether the process of measuring land and signing witnesses whose land borders comply with health protocols outside the land office, especially in the field. The issues that will be studied are the implementation of the land registration process during the Covid-19 pandemic and legal certainty in the implementation of the land registration process during the Covid-19 pandemic. The results show that the land registration process during the Covid-19 pandemic is still the same as before this outbreak, and regarding legal certainty, there are no specific rules regarding the obligation to comply with health protocols when undergoing the land registration process, especially in the field.
Ramsey Mason, Kathryn, ‘Lessons from Tenant Protection Provisions in Federal Financial Crisis Legislation’ (2020) 14 University of St. Thomas Journal of Law and Public Policy 130 Abstract: 2020 has brought an unprecedented level of upheaval in the American economy and way of life. Coronavirus, known also as COVID-19, has ushered in what seems poised to be a long-lasting stretch of financial, public health, and social uncertainty. Low-income tenants, who are disproportionately people of color, are particularly vulnerable to the economic and public health effects of the coronavirus pandemic. But coronavirus is not the first crisis in the United States to threaten low-income residential renters; the Great Recession, from approximately 2007 to 2009, is the next most recent example, and its effects are still felt today. This article will examine federal tenant protection legislation from recent stimulus bills and suggest provisions that future legislation should include in order to best protect residential tenants and prevent waves of homelessness. Twice in the past fifteen years, Congress has passed huge financial relief bills to address the effects of the Great Recession and the coronavirus pandemic. The first, the Toxic Asset Relief Program (TARP), was passed in 2009 in the wake of the foreclosure crisis that devastated the American mortgage market in the first decade of the twenty-first century. The second, the Coronavirus Aid, Relief, and Economic Security (CARES) Act, was passed in 2020 to deal with the sudden economic fallout caused by the international pandemic. Both of these pieces of legislation contained specific provisions designed to prevent or delay the eviction of residential tenants who were affected by these crises through no fault of their own.
Ratusznik, Piotr, ‘The Amount of Rent Under the CoVid-19 Pandemic. Between Poland and Germany’ in Edyta Hadrowicz (ed), Polish Entrepreneurial Law in the Era of the COVID-19 Pandemic: Problems and Challenges (Springer, 2024) 95–109 Abstract: The outbreak of the CoVid-19 pandemic has led to unprecedented changes in the practice of law. Significant transformations have taken place in the field of contract law. The sustainability of rental agreements is a good example. Before the outbreak of the pandemic, it might have been thought that civil law in Europe was without exception based on the principle pacta sunt servanda. However, the extraordinary times of the pandemic led the judicature to apply exceptional solutions. Both in Poland and Germany, the courts as well as legal doctrine began to invoke special regulations to break the pacta sunt servanda principle. Despite the differences separating these two legal orders, both rejected any automatic solutions. The key role was played by the individual assessment of specific facts of the case.
Roark, Marc and Lorna O’Mahony, ‘Comparative Property Law and the Pandemic: Vulnerability Theory and Resilient Property in an Age of Crises’ (2022) 82(3) Louisiana Law Review 789–856 Abstract: Political and property crises open up vital new questions for property theorists, and analyses of state responses to these crises cast new light on how property systems, and property law, adapt and evolve to meet complex challenges—while remaining institutionally resilient themselves. The novel coronavirus pandemic was an extreme, exceptional, unexpected, significant ‘shock’ event, with financial, economic, social, cultural and political impacts on a scale not experienced since at least the 1930s. The threat the pandemic posed to human life demanded immediate action in response to an unexpected and unpredictable and urgent threat, delivered under intense public scrutiny. The challenges were ‘wicked’: governments were compelled to act, in conditions of uncertainty and in response to a complex set of high stakes problems, with imperfect information about the impacts of policy choices or the likely endpoint of the pandemic. In acting swiftly to protect their populations, governments adopted radical strategies to shore up housing and home, to tackle street homelessness, and to protect tenants and mortgagors from the threat of eviction. Perhaps most notably, pandemic policies to protect housing intervened with ‘private property’ law in ways that were unimaginable before Spring 2020. In this article, we examine the range of ways that governments adapted their approaches to property, housing and homelessness during the pandemic. We analyze the adaptation of property rules in the pandemic using the new theoretical and methodological framework of ‘Resilient Property’. We consider the implications of the actions to adjust the laws and policies that govern property, housing, eviction and homelessness, and reflect on the legacies of these actions for property theories and property law.
Sabbeth, Kathryn, ‘Eviction Courts’ (2022) 18(2) University of St. Thomas Law Journal 359–404 Abstract: This Article examines the legal mechanics of the courts that issue eviction orders. It analyzes these courts in the context of the COVID-19 pandemic and the federal eviction moratoria. The eviction phenomenon preceded the pandemic, but the pandemic exaggerated many of its features. How the eviction courts responded to the eviction moratoria reveals a great deal about how these fora have been functioning all along. While the eviction moratoria were important, the design of eviction courts limited their impact.
Schindler, Sarah and Kellen Zale, ‘How the Law Fails Tenants (And Not Just During a Pandemic)’ (2020) 68 UCLA Law Review Discourse 146 Abstract: In the wake of the COVID-19 pandemic, all levels of government are considering how to protect public health by keeping people in their homes, even if they can no longer afford their monthly mortgage or rent payments. The protections that have emerged thus far have been far more protective of homeowners than renters. This essay exposes how the disparity in legal protections for these two groups is not unique to this pandemic. Rather, the crisis has merely uncovered longstanding, deep-rooted patterns within legal doctrines, governmental programs, and public policies that bestow favorable treatment upon homeowners at the expense of renters. This essay situates the current crisis within our existing research addressing the disparate treatment of renters and owners. It examines the historic distinctions between freeholds and leaseholds that have resulted in different treatment of the two groups, exposes the ways the existing legal doctrine primarily harms poor people and people of color, and proposes steps that can be taken to bring more parity to the legal treatment of renters and owners.
Scott, Gary, ‘Introduction of Mandatory Electrical Safety Checks for Residential Tenancies’ (2020) 24(5) Landlord & Tenant Review 191–192 Abstract: Highlights the implementation of the Electrical Safety Standards in the Private Rented Sector (England) Regulations 2020, and examines their key requirements. Reviews the compliance deadline for existing tenancies, the procedure in the event of breach or non-compliance, the potential penalties available, and whether the Regulations’ operation has been affected by the coronavirus pandemic.
Skahen, Rebecca K, ‘Opportunity in a Pandemic: Ending the Eviction Cycle by Constitutionally Providing for Inclusionary Zoning with State-Enacted Land-Use Regulations’ (2021) 43(3) Campbell Law Review 375–401 Abstract: Evictions invite instability into every aspect of daily life. Children are uprooted from schools because their parents are no longer able to rent a home in the school district. Parents are fired from jobs because they take days off to find patchwork solutions to avoid homelessness. COVID-19 forced the public to become aware of many social issues, including the harsh reality of evictions. With the end of the pandemic is in sight, the impact of evictions cannot be forgotten. Action must be taken to ensure stable housing for generations to come. Broadening a state’s general zoning power to explicitly include affordable housing is the proper solution. This Comment explores the legal history of inclusionary zoning and provides model language to local governments for the constitutional implementation of such policies that ensure private developers receive a reciprocal benefit for their role in providing affordable housing. Constitutionally providing for inclusionary zoning is an important step towards ending the eviction cycle in many states, especially in North Carolina.
Skerratt-Williams, Sian, ‘COVID-19: The Welsh Perspective’ (2020) 2017 Estates Gazette 58 Abstract: Explains how and why certain responses to the coronavirus pandemic by the National Assembly for Wales differ from those adopted by the UK Parliament. Focuses on business and residential tenancies, health protection and business support measures.
Skolnik, Terry, ‘The Punitive Impact of Physical Distancing Laws on Homeless People’ in Colleen M Flood et al (eds), Vulnerable: The Law, Policy and Ethics of COVID-19 (University of Ottawa Press, 2020) 287 Abstract: One of the hallmarks of COVID-19 is that it disproportionately impacts vulnerable individuals and groups. The State’s punitive legal responses to the pandemic are no different. This chapter shows why coercive physical distancing laws disparately impact homeless people. It argues that harsh financial penalties for violating these laws can constitute cruel and unusual punishments that contravene s. 12 of the Canadian Charter of Rights and Freedoms. It challenges prevailing s. 12 Charter jurisprudence and demonstrates why expensive fines amount to cruel and unusual punishments even when judges have discretion to modify their severity. After situating the regulation of homelessness within its historical context, it concludes by setting out why homeless people are uniquely vulnerable to over-policing. Ultimately, this chapter elucidates why a public health approach to both COVID-19 and homelessness are necessary and why neither can be punished out of existence.
Stevenson, Douglas, ‘Shutdown, Frustration & Property Contracts’ (2020) 233(Spring) Writ 25–26 Abstract: Considers the doctrine of frustration as it applies to property contracts during the COVID-19 crisis. Refers to cases on war-time frustration and their application to leases and contracts for the sale of land. Suggests that the concept of partial excuse for breach of contract may be applicable.
Sudeall, Lauren, Elora Lee Raymond and Philip ME Garboden, ‘Disaster Discordance: Local Court Implementation of State and Federal Eviction Prevention Policies During the COVID-19 Pandemic’ (2023) 30(3) Georgetown Journal on Poverty Law and Policy 545–587 Abstract: Eviction sits at the nexus of property rights and the basic human need for shelter—the former benefits from a strong framework of legal protection while the latter does not. In most eviction courts across the country, therefore, the right to housing is unrecognized, while landlords’ economic interests in property are consistently vindicated. The public health crisis unleashed by COVID-19 temporarily upended that (im)balance. Emergency federal and state eviction prevention policies issued in response to COVID-19 prioritized public health—and the need for shelter to prevent the spread of disease—over typically dominant property rights. In doing so, they presented courts with an unusual dilemma: how to implement policy directives that run counter to existing legal, historical, and procedural frameworks. While most studies of eviction during the COVID-19 pandemic have explored eviction trends over the period or the impact of these policies, this Article delves more deeply into the question of local implementation—which varied widely across jurisdictions—and asks when and why such policies may not have their full intended impact. Relying on a series of interviews conducted with judges, clerks, and lawyers working in eviction courts, the Article suggests that the phenomenon of discordance can help explain how and when policy implementation is most likely to be effective. Where accordance—functional and norm-based alignment—existed between judges’ understanding of the eviction process and COVID-19 policy directives, they were more likely to be proactive and focused on implementation. However, where judges experienced discordance—misalignment between the aims of these directives and those of the underlying legal structure and process—they were more likely to cast themselves as passive and highly restricted in their ability to act outside of the normal order of operations. Although set against the backdrop of the COVID-19 pandemic, the findings and conclusions set forth in this Article are not unique to that context. The insights presented here regarding the implementation of state and federal policy at the local court level provide critical guidance to policymakers in all areas about the need to consider local dynamics in crafting policy—particularly in times of crisis—and how to structure policies so that local motivations can be used to spur innovation rather than obstruction.
Tay, Eu-Yen, ‘Frustration, Not Fortitude: The Case for Applying the Doctrine of Frustration to Leases Affected by COVID-19’ (SSRN Scholarly Paper No ID 3621875, Social Science Research Network, 8 June 2020) Abstract: The impact of the COVID-19 pandemic on retail businesses raises the pertinent question of whether commercial leases can be deemed to be frustrated, so that tenants may be released from their rental obligations. Focusing on the plight of restauranteurs, but relevant to the retail sector in general, this paper discusses the doctrine of frustration with respect to restaurant leases affected by the COVID-19 crisis. It puts forward the view that the doctrine does, and should, apply to these leases in these COVID-19 circumstances, not least because in spite of Government relief measures, frustration may be the only way out for restauranteurs.
Taylor, Dean, ‘Housing Law and Airbnb Amidst Covid-19’ (2020) 23(4) Journal of Housing Law 62–67 Abstract: Notes the amendments made to the Homelessness Code of Guidance from 29 June 2020 in response to the coronavirus pandemic, including advice that local authorities carefully consider applicants’ vulnerability in regard to coronavirus.
Thanvi, Irfan Ali, ‘UAE Legal Amendments During the Covid-19 Pandemic’ (2022) 7 Law & Political Review 109–127 (see pages 113-114)
Ti, Edward SW, ‘Of Landlords and Tenants: Property in the Midst of a Pandemic’ (2021)] Statute Law Review, Article hmab018 (advance article, published 1 July 2021)Jurisdiction: UK
Abstract: Part 2 provides an overview of the regulatory protections given to business tenancies during the pandemic, as well as under the Landlord and Tenant Acts 1927 and 1954. The special responsibility owners have to not use their property in a harmful manner provides a strong basis to justify these regulations. Part 3 presents the main argument explaining why a modified version of Honoré’s incident of ownership not to use property in a harmful manner is advocated. Drawing on theory, policy and the doctrine of frustration, this section explains why Honoré’s incident provides the conceptual and ethical basis to justify not only the enactment of the coronavirus-inspired laws protecting business tenancies but more generally, when property rights can be statutorily interfered with. Part 4 concludes.
Tokarz, Karen L et al, ‘Addressing the Eviction Crisis and Housing Instability Through Housing Court Mediation’ [2020] Washington University Journal of Law and Policy, Forthcoming_ _Abstract: The United States faces a massive eviction crisis. There were 128.6 million households in the United States in 2019, of which 37% were renters; of those 47.6 million renter households, more than two million, or one in every twenty-five, were at risk of losing their homes through evictions. Current and future economic challenges, such as that brought on by the Covid-19 pandemic, will inevitably increase evictions and exacerbate housing instability. While eviction lawsuits are an important legal remedy, evictions lead to homelessness, harm family member health, cost landlords money, destabilize the housing market, disrupt neighborhoods, increase crime, and overwhelm the courts. Many aspects of mediation make it a more just and effective dispute resolution approach than court evictions. This Article demonstrates the effectiveness of mediation and advocates for increased use of mediation to decrease evictions and housing instability.
Van Erp, Sjef, ‘COVID-19 Apps, Corona Vaccination Apps and Data “Ownership”’ (SSRN Scholarly Paper ID 4038139, 27 March 2021) Abstract: Already before the present COVID-19 health crisis an emerging trend could be seen towards offering health services from a distance, called ‘e-health’. This trend, like so many other developments towards digitalisation of our societies, received a considerable impetus because of the COVID-19 crisis. First, the rise of COVID-19 tracing (and/or tracking) apps and now to be followed by the advance of Corona vaccination apps has made us aware of the benefits which e-health may bring, particularly in a situation where distance means safety. The apps contain very personal information and, consequently, have provoked questions as to whether the apps sufficiently protect a person’s right to privacy and data protection as safeguarded by the EU’s General Data Protection Regulation. The nature of the data, however, is such that also questions as to the importance of access by public health authorities in the public interest can be asked. Also, although commercial, but still important for developing and producing vaccines, for the pharmaceutical industry the data are important. The result is a conflict particularly between entitlement to privacy protection and the general interest, causing questions to be asked about which interest has priority. It might very well be, however, that this question, asked as such, is beside the point. Given that data are non-rivalrous and non-depletable, because they can be copied and copied, questions about which entitlement has priority cannot be answered in absolute terms. Rights regarding data depend upon who at a particular time has control over the data, who else has control and what control between all those involved then means. Looking at who has which right to data one can see an entitlement paradigm surfacing which is multi-perspective, relative and dynamic. Calling data entitlement ‘ownership’ is not a reference to ownership in the traditional sense of the word, but to management. To decide what management in a particular situation means interest balancing exercises must be made. These exercises will change over time, as accordingly will the answer to the question who is ‘owner’ of data in COVID-19 and Corona vaccination apps.
Van Erp, Sjef, ‘Who “Owns” the Data in a Coronavirus Tracing (and/or Tracking) App?’ in Ewoud et al Hondius (ed), Coronavirus and the Law in Europe (Intersentia, 2020) Abstract: To combat the spread of the COVID-19 virus, e-health has taken a sudden leap forward. Already use cases were studied to see if by means of advanced IT tools, particularly e-health applications (apps), patients could be monitored from their homes so they did not need to visit a hospital for frequent checks. The corona pandemic gave rise to the rapid development of tracing (and/or tracking) e-health apps, which allow quickly finding the source of an infection as well as others who might have been infected because they were in the close vicinity of someone who became ill. The development and widespread use of these apps makes it even more urgent than it already was to answer questions regarding to whom the data gathered through such apps belong and what belonging means. Can the owner of the mobile device be considered the ‘owner’ of the data, what does ‘ownership’ then mean, do other stakeholders (such as health care providers, public health authorities) also have a claim to ‘ownership’?
Vyas, Nisha N and Matthew Warren, ‘From Commodities To Communities: Reimagining Housing After The Pandemic’ (2020) 168(Special Issue: Law Meets World) UCLA Law Review Discourse 190–202 Abstract: While COVID-19 is not the root cause of housing insecurity, the pandemic has pulled hundreds of thousands of Californians to the precipice of housing loss. This Article describes the existing eviction process that values individual property rights over the human right to housing, and describes proposed legislative solutions to prevent evictions en masse before considering urgent long-term changes. This moment calls for us to question the historical commodification of property, and to more towards a system that treats housing as a social good necessary for public health rather than a commodity to generate wealth for the privileged few.
Wagner, Jennifer K, ‘Health, Housing, and “Direct Threats” During a Pandemic’ 7(1) Journal of Law and the Biosciences Article lsaa022 Abstract: The COVID-19 pandemic brought into stark relief the intimate nexus between health and housing. This extraordinary infectious disease outbreak combined with the astounding lack of a clear, coordinated, prompt, and effective public health response in the United States created conditions and introduced practical challenges that left many disoriented—not only health care providers but also housing providers. Projected health care surges sent health care providers scrambling for ways to procure personal protective equipment for employees; to develop and implement clinical triage policies for the responsible and fair allocation of scarce critical care resources to COVID-19 and non-COVID-19 patients; and to make ethically and scientifically sound decisions regarding the conduct of research during the pandemic. Concurrently, individualized directives for self-quarantining and isolation as well as localized and statewide ‘stay at home’ orders sent housing providers scrambling to make sense of their own ethical and legal responsibilities. Innumerable issues are worth examination, such as implications of moratoria on evictions and foreclosures, the triggering of force majeure clauses in contracts, insurability of pandemic-related damages and disruptions, holdover tenancies and delayed occupancies, and even possible abatement of rent or homeowner/condominium association dues in light of closed common facilities (such as fitness areas) or reduced benefits to be enjoyed with residential property; however, this article focuses on fair housing law and the ‘direct threat’ exemption during a pandemic; finds it unlikely that COVID-19 is a disability, likely that the ‘direct threat’ defense is available, and both determinations to be case-specific inquiries dependent upon rapidly-changing scientific understanding of this disease. By highlighting adequate housing as a human right for which the government has primary responsibility for ensuring its achievement, this article underscores the importance of finding a holistic solution to public health and adequate housing problems in the U.S. before the next public health emergency arises.
Walsh, Rachael, ‘Securing Possession of the Home in the COVID-19 Context: The Irish Experience’ in Boggenpoel, et al (eds), Property Responses to a Global Pandemic (JUTA, 2021) (forthcoming) Abstract: The COVID-19 crisis has prompted reflection and at times radical legislative action in a range of jurisdictions to help individuals to retain possession of their homes despite the economic challenges created by the crisis. Long-term lock-downs in the interests of public health have created the need to minimise the movement of people and have resulted in significant loss of income, prompting legislatures to enact reforms to avoid evictions that had previously been perceived as ‘off the table’ due to their impact on property rights. The legal and political parameters for balancing the rights of landlords and tenants appear to have been re-drawn (at least temporarily) by the public health crisis. This draft chapter analyses the Irish legislative response to the impact of COVID-19 on tenants in light of these themes, with a particular focus on the interaction between legislation and constitutional constraints in this context, and on the impact of the COVID-19 crisis on political understandings of those constraints.
Wolf, Michael Allan, ‘COVID-19 Pandemic and Real Property Law: An Early Assessment of Relief Measures for Tenants and Residential Mortgagors’ (SSRN Scholarly Paper ID 3623281, Social Science Research Network, 9 June 2020) Abstract: This Special Alert for Powell on Real Property looks at governmental measures, enacted on an emergency basis, regarding real property during the COVID-19 pandemic — especially moratoria on residential evictions and foreclosures. The Alert uses examples of COVID-19 emergency measures by state governments as well as examples of emergency measures by the federal government. It anticipates ongoing changes to such measures as the COVID-19 situation evolves, suggesting that we not wait until the governmental measures abate before considering their impact and implications. The current stream of property-related COVID-19 litigation promises to become a flood. Litigators are relying on provisions of federal and state constitutions to challenge the emergency measures on behalf of landlords, lenders, and business owners. The Alert identifies several key U.S. Supreme Court precedents that will almost certainly form part of the judicial response to those challenges. Those cases, discussed in the Alert, provide the foundation for judicial consideration of the constitutional legitimacy of eviction and foreclosure moratoria. :
Wolf, Michael Allan, ‘Fever Check: A Status Report on Judicial Treatment of COVID-19-Related Real Property Issues’ (2023) 58 Real Property, Trust and Estate Journal 47–82 Abstract: It was inevitable that residential landlords would challenge the foreclosure moratoria featured in state and federal COVID-19 emergency orders, regulations, and legislation. At the same time, commercial landlords and tenants are wrestling in court over the question of whether the pandemic and restrictions that governments imposed in response can excuse the nonpayment of rent. While these issues will continue to appear and percolate through state and federal trial and appellate tribunals, this Article provides an interim report on the progress (or lack thereof) of constitutional (Takings and Contract Clauses) and common-law (force majeure, frustration of purpose, impossibility of performance) theories enlisted to vindicate the alleged violation of property and contract rights or to support or oppose efforts to recover full rental payments during a global crisis. Even the U.S. Supreme Court, via its ‘shadow docket,’ has had a word in this debate, invoking the newly emergent and problematic ‘major questions’ doctrine. The Article closes with a consideration of the roles stare decisis and respect for precedent are playing in the emerging COVID-related real property jurisprudence.
Wolf, Michael Allan, ‘Superfluous Judicial Activism: The Takings Gloss’ (2023) 91(2) George Washington Law Review 287–352 Abstract: In the summer of 2021, the Supreme Court released opinions in three Takings Clause cases. The Justices did not focus primarily on the dozen words that compose that Clause. Instead, the Court considered the expansive judicial gloss on those words, the extratextual aspects established by takings opinions over the last 100 years, since the ‘too far’ test introduced by Justice Holmes in Pennsylvania Coal. The ‘Takings Gloss’ is the product of holdings expanding the meaning and reach of the Takings Clause, a tangled web of opinions that have troubled lawyers, judges, and commentators for several decades. With the latest contributions, the Takings Gloss (original Clause in bold) now reads: [N]or shall private or public property, including rights in property such as the right to exclude, be taken for public use, purpose, or benefit (even if the property taken by eminent domain is transferred to a new private owner), or subjected to regulation that goes too far, or be physically occupied even temporarily, or exacted as an unreasonable development condition, by the government or by private parties delegated by the government, without just compensation, unless the property owner is seeking only injunctive relief. This Article highlights the three newest takings cases (Cedar Point Nursery, PennEast, and Pakdel); introduces a broad range of alternative, non-takings avenues of relief for aggrieved property owners (in constitutional, statutory, and common law); and demonstrates the real dangers of the Takings Gloss in three critical contexts: (1) climate change mitigation and adaptation, (2) COVID-19 restrictions and regulations on landlords and business owners, and (3) land use regulations designed to increase the crucial supply of affordable housing and create more diverse, equitable, and inclusive communities. The Court can abandon the Takings Clause expansion project, secure in the knowledge that landowners and other property owners are adequately protected from government harms.
Wolf, Michael Allan, ‘Zoning Reformed’ (2021) 70(2) Kansas Law Review, 171–242 Abstract: It has been roughly a century since early advocates of zoning took notice of how crowded and congested housing conditions contributed to the spread of disease (including the then-recent H1N1 pandemic). The U.S. Supreme Court had just rejected on property rights grounds a city ordinance that expressly segregated neighborhoods by race. One hundred years later, the exposure of the weaknesses embedded in our system of public land use regulation during the crises of 2020 presents a unique and timely opportunity for serious consideration of major and minor adjustments to state statutes, local ordinances, and judicial decisions. This Article calls for a comprehensive reform of zoning, eschewing pie-inthe-sky or revolutionary changes. It presents for the first time to state legislators, local officials, judges, academic commentators, and law and planning professionals a comprehensive set of achievable steps to take now in anticipation of future pandemics, in response to current and anticipated public health emergencies caused by climate change, and in addressing (at long last) social justice issues directly tied to undeniable elements of systemic racism caused and exacerbated by the paucity of safe, affordable housing. History will determine whether American public officials and private-sector participants will have attended to the painful lessons from the current crises in order to fine-tune zoning and land use regulation, or whether the U.S. will go back to our old and harmful habits once again.
Woodhull, Sumitra, ‘Legal Analysis & Opinion: Impact of the (COVID-19) Act 2020 upon Leases of Non-Residential Immovable Property’ (SSRN Scholarly Paper ID 3847596, 17 May 2021) Abstract: This ‘Legal Analysis & Opinion’ has been written by the authors to serve as guidance for Malaysian owned and incorporated businesses engaged in the financial leasing of non-residential immovable properties with regards to the impact of the Covid-19 Act 2020 upon leases of non-residential immovable property.
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