Do Rent-Controlled Apartments Constitute a Taking for the Purposes of the Fifth Amendment?

by Pejman Yousefzadeh on February 16, 2012

I don’t know, as I haven’t done the legal research necessary to answer the question. I do know, however, that rent-control is tremendously bad public policy–as George Will points out:

This “taking” has been accomplished by rent-control laws that cover almost 1 million — approximately half — of the city’s rental apartments. Such laws have existed, with several intervals of sanity, since the “emergency” declared because returning soldiers faced housing shortages caused by a building slowdown during World War I.

Most tenants in rent-controlled units can renew their leases forever. Tenants can bequeath their rent-controlled apartments — they have, essentially, a property right to their landlord’s property — to their children, or to a friend who lives with them for two years . This is not satire; it is the virtue of caring, as understood by liberal government.

The tenants in the Harmons’ three rent-controlled units are paying an average 59 percent below market rates. The Harmons would like to reclaim one apartment for a grandchild, but because occupants of two of the units are over 62, the Harmons would have to find the displaced tenant a comparable apartment, at the same or lower rent, in the same neighborhood.

In addition to rent control’s random dispersal of benefits — remember, half of the Harmons’ apartments are uncontrolled — rent control is destructive because it discourages construction of new apartments and maintenance of existing ones.

Thus it creates the “emergency” it supposedly cures.

It exemplifies what the late New York senator Pat Moynihan called “iatrogenic government.” In medicine, an iatrogenic illness is induced inadvertently by a physician’s treatment.

We’ve been having a lot of iatrogenic government recently. The Supreme Court may not find rent-control to be unconstitutional. It may not even take the case–Will’s editorial seems to suggest that certiorari has not yet been granted. But that doesn’t mean that rent-control shouldn’t go the way of the dinosaur.

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