Active: Federal lawsuit challenges unconstitutional eviction bans

In March 2020, as the COVID-19 pandemic had just begun to pick up steam, the City of Oakland and Alameda County each enacted a ban preventing rental property owners from evicting tenants who refuse to pay their rent, even if they can pay, and regardless of any COVID-related financial distress.

The eviction moratoriums are now in their third year with no end yet in sight and have devastated small-scale landlords whose livelihoods depend on rental income. In addition to unpaid rent, many tenants violated their leases in other ways, including the harassment of other tenants, the destruction of rental property, and even criminal activity.

When Sheanna Rogers (pictured above) and her husband bought their first home in their early 20s, they felt like they had achieved their slice of the American Dream. Now, many years later, they have owned a few different properties, including a building in Alameda County where she once ran a small, three-bedroom independent living facility for people with mental disabilities. Her clients had no families to turn to, and Sheanna felt fortunate that she could provide her clients with a safe living space and meals they could count on.

Her building also has a separate studio apartment which she rented out, using the monthly $1,000 rent payments to support her family. Having the extra income was helpful, but the situation took a concerning turn after her renter, who moved into the unit in 2018, began to harass the clients, screaming profanities and even hitting one of them with a crowbar. Sheanna quickly began eviction proceedings to protect her clients and her property.

They reached a settlement in February 2020 and the tenant agreed to move out in April, only to renege after Alameda County enacted its eviction moratorium in March of that year. The renter refused to leave, stopped paying rent, and kept harassing Sheanna’s clients so badly, she had to close her facility altogether.

Sheanna is not alone. Other small-time housing providers have suffered extreme hardships due to the bad actions of tenants they cannot remove from their own property:

– Jacqueline Watson-Baker is a duplex owner who proudly follows in the footsteps of her mother, a California transplant from the Southern U.S. and one of the first African Americans to own property in her East Oakland neighborhood. Oakland’s eviction moratorium stopped Jacqueline’s efforts to evict a renter who trashed her property, refused her access, made racist comments toward her, and drove out the renter of the other unit. Her problem tenant still occupies her property but hasn’t paid rent since March 2020.

– John Williams also owns a duplex in Oakland where he rents a unit to a tenant who was problematic long before the pandemic began. While her payments had always been late, since the start of the COVID emergency, she hasn’t paid a penny in rent. Although his other unit became vacant during COVID, John has held off leasing it again for fear of another non-paying tenant he cannot evict. In the meantime, John is behind on his mortgage, and the worry of foreclosure has led to stress-related hospitalization and disability. He has also been unable to sell the property for fair market value due to the non-paying tenant. Unable to work or sell the property, he has found himself in dire financial straits while he waits for a resolution to the case.

– Michael Loeb is an elderly widower who owns two apartment units in Oakland. He intended to combine his two units into a single apartment and live out his remaining years there. However, he had rented one unit to a class action attorney who now refuses to leave unless Michael buys him out of the property for an exorbitant fee of $160,000.

– Robert Vogel is a disabled paraplegic in his sixties. After his parents died, Robert inherited the small home he currently lives in and a second, three-bedroom rental property, which his parents believed would provide financial security. After Robert’s tenant stopped paying rent in September 2021, Robert decided to sell the rental home—but his tenant refused to leave. Unable to sell or to collect rent, and still burdened with two mortgages, Robert is now worried about making ends meet.

None of these renters have declared any COVID-related hardships. The city and county chose to favor occupants over owners, yet the property owners are forced to bear the full cost of that choice. These housing providers must still pay their mortgages, supply utilities, and maintain the premises for occupants who can violate their lease and the law without fear of eviction. In fact, tenants could sue the owners for failing to maintain the very property the tenants refuse to pay rent on or leave.

The moratoriums also have no expiration date. Oakland’s regulation, passed unanimously by the City Council, will expire only after the same council declares an end to the local COVID emergency. The same goes for Alameda County.

A government regulation that declares tenants are entitled to stay in rental property irrespective of their bad or unlawful actions is no different than the government itself physically invading and occupying the property. And it’s just as unconstitutional.

Among the property rights that fall under well-established Fifth Amendment protections is the right to possess what you own. Just as the government’s trampling the right to use or dispose of private property is a physical taking, so too are government actions that interfere with an owner’s right to possess their property.

In this case, the eviction bans’ enactment automatically conferred the owners’ right to possess to the government, and thus, the tenants—indefinitely, rent-free, and regardless of bad behavior.

The government cannot destroy owners’ fundamental right to repossess their property by prohibiting their ability to evict bad tenants. Represented at no charge by Pacific Legal Foundation, Sheanna, John, Jacqueline, Michael, and Robert are fighting back. These small-time rental property owners and the nonprofit Housing Providers of America filed a federal lawsuit to restore their property rights.

What’s At Stake?

  • The right to possess your own private property and to exclude those that have no right to be there is a fundamental right protected by the U.S. and state constitutions. The government cannot enact regulations that take this right away without paying for it.
  • A regulation that entitles tenants to stay in rental property regardless of whether they pay rent, comply with the lease, or engage in criminal activity, and regardless of whether the lease has expired, is no different than the government itself physically invading and occupying the property. And it’s just as unconstitutional. 

Case Timeline

March 01, 2022