Amicus Curiae Brief — GHP Management Corporation, et al., Petitioners v. City of Los Angeles, California, et al.

Supreme Court briefNov 14, 2024

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No. 24-435

IN THE

___________

GHP MANAGEMENT CORPORATION, et al.,

Petitioners,

CITY OF LOS ANGELES, et al.,

Respondents.

___________

On Petition for Writ of Certiorari

to the United States Court of Appeals

for the Ninth Circuit

__________

Brief of the Liberty Justice Center as

Amicus Curiae Supporting Petitioners

__________

November 14, 2024

Jeffrey Schwab

Counsel of Record

Bridget F. Conlan

LIBERTY JUSTICE CENTER

7500 Rialto Blvd.

Suite 1-250

Austin, Texas 78735

512-481-4400

jschwab@ljc.org

Question Presented

The Takings Clause protects the right of property

owners to be compensated when their property is

taken for public use, even if only temporarily. See

Ark. Game & Fish Comm’n v. United States, 568 U.S.

23, 32 (2012). When the government authorizes a

third party to enter and occupy private property this

infringes upon the owner’s fundamental right to

exclude and constitutes a compensable taking. See

Cedar Point Nursery v. Hassid, 594 U.S. 139, 150

(2021).

The City of Los Angeles imposed an eviction

moratorium preventing landlords from evicting

tenants for nonpayment of rent or other violations of

their rental agreements, including the presence of

pets and unauthorized additional occupants, during

the “Local Emergency Period” of indefinite duration

declared in response to the COVID-19 pandemic.

The question presented is whether an eviction

moratorium depriving property owners of the

fundamental right to exclude nonpaying tenants

effects a physical taking deserving of just

compensation.

Table of Contents

Question Presented ................................................... i

Table of Authorities ................................................iii

Interest of the Amicus Curiae ................................. 1

Summary of Argument ............................................ 1

Argument .................................................................. 3

The right to exclude is a fundamental

aspect of property rights, and by

transferring this right from property

owner to tenant, the eviction

moratorium imposes a taking. ..................... 3

II.

The Ninth Circuit has misinterpreted

the “voluntary” distinction in Yee. ............... 5

III.

Granting tenants a right to retain

possession of property indefinitely, for

free, and in violation of provisions of

their rental agreement is a physical

taking requiring compensation. ................. 10

Conclusion ............................................................... 15

iii

Table of Authorities

Cases

Ala. Ass’n of Realtors v. HHS,

594 U.S. 758 (2021) ................................................ 13

Ark. Game & Fish Comm’n v. United States,

568 U.S. 23 (2012) ......................................... i, 11, 12

Armstrong v. United States,

364 U.S. 40 (1960) .............................................. 5, 16

Cedar Point Nursery v. Hassid,

594 U.S. 139 (2021) ...........................i, 3, 4, 8, 10, 11

FCC v. Fla. Power Corp.,

480 U.S. 245 (1987) .............................................. 7, 9

First English Evangelical Lutheran Church v.

County of Los Angeles,

482 U.S. 304 (1987) .......................................... 11, 12

Fresh Pond Shopping Center, Inc. v. Callahan,

464 U.S. 875 (1983) .................................................. 9

GHP Mgmt. Corp. v. City of L.A.,

No. 23-55013, 2024 U.S. App. LEXIS 13097

(9th Cir. May 31, 2024) ............................... 6–7, 8, 10

Hall v. Santa Barbara,

833 F.2d 1270 (9th Cir. 1986) ............................... 11

Kaiser Aetna v. United States,

444 U.S. 164 (1979) .................................................. 3

Loretto v. Teleprompter Manhattan CATV

Corp., 458 U.S. 419 (1982).............................. 3, 8, 11

Nollan v. Cal. Coastal Comm’n,

483 U.S. 825 (1987) .............................................. 4, 9

Pa. Coal Co. v. Mahon,

260 U.S. 393 (1922) .................................................. 2

Rakas v. Illinois,

439 U.S. 128 (1978) .................................................. 3

Tahoe-Sierra Pres. Council v. Tahoe Reg’l

Planning Agency,

535 U.S. 302 (2002) .......................................... 11, 15

United States v. Dow,

357 U.S. 17 (1958) .................................................. 12

United States v. Gen. Motors Corp.,

323 U.S. 373 (1945) .......................................... 12, 13

United States v. Pewee Coal Co.,

341 U.S. 114 (1951) .......................................... 12, 15

Valley Park Ranch, LLC v. Commissioner,

No. 12384-20, 2024 U.S. Tax Ct. LEXIS 792

(T.C. Mar. 28, 2024) .................................................. 9

Yee v. City of Escondido,

503 U.S. 519 (1992) ...................................... 5, 6, 8, 9

Statutes

Calif. Civ. Code §§ 1941, 1942 ................................... 15

Other Authorities

Catherine Cote, “Time Value of Money

(TVM): A Primer,” Harvard Business

School Online, June 16, 2022,

https://online.hbs.edu/blog/post/time-valueof-money ................................................................... 14

Damon Darlin, “Home valuation: Pull out

your calculator,” N.Y. Times, April 3, 2006,

https://www.nytimes.com/2006/04/03/reale

state/home-valuation-pull-out-yourcalculator.html ........................................................ 14

HUD Press Release No. 23-278, December

15, 2023,

https://www.hud.gov/press/press_releases_

media_advisories/HUD_No_23_278 ...................... 14

Random House Webster's College

Dictionary (2d ed. 2001) ........................................... 9

Richard A. Epstein, Physical and Regulatory

Takings: One Distinction Too Many, 64

Stanford L. Rev. 99 (2012)...................................... 16

Richard A. Epstein, Rent Control and the

Theory of Efficient Regulation, 54 Brook. L.

Rev. 741 (1988) ........................................................ 16

Stay Housed LA,

https://www.stayhousedla.org .................................. 2

Tenant Power Toolkit,

https://tenantpowertoolkit.org ................................. 2

Treatises

2 William Blackstone, Commentaries, ch. 1 .............. 3

Richard A. Epstein, Simple Rules for a

Complex World (1995)............................................. 12

Regulations

Ordinance No. 186585, available at

http://clkrep.lacity.org/onlinedocs/2020/200147-S19_ORD_186585_03-31-2020.pdf ............... 13

Interest of the Amicus Curiae1

The Liberty Justice Center is a nonprofit,

nonpartisan public-interest litigation firm that

pursues strategic, precedent-setting litigation aimed

revitalizing

constitutional

restraints

government power and protecting individual rights.

The Liberty Justice Center is interested in this case

because the protection of private property rights is a

core value vital to a free society.

Summary of Argument

In response to the COVID-19 pandemic, the City

of Los Angeles enacted a series of ordinances that

effectively acted as an eviction moratorium,

prohibiting property owners from evicting tenants for

the indefinite duration of a “Local Emergency

Period.” The City justified this scheme as a publichealth measure, maintaining that it would prevent

uncessary housing displacement and housed

individuals from falling into homelessness during a

global pandemic. But property owners were left with

no recourse against tenants who either lived in their

properties rent-free or violated their lease

agreements by housing unauthorized occupants,

keeping pets, or causing nuisances. No late fees could

be charged for unpaid rent. Landlords lost all control

over their property, even losing the ability to remove

1 Rule 37 statement: No counsel for any party authored any

part of this brief, and no person or entity other than Amicus

funded its preparation or submission. All parties received

timely notice of Amicus’s intent to file this brief.

the property from the rental market for their own

personal use. The City authorized this intrusion and

empowered tenants to bring a private cause of action

against any landlord who dared to question the

applicability of the eviction protections to the

tenant’s circumstances. If that does not constitute a

physical taking of property, it is difficult to imagine

what would.

There is no shortage of how-to guides2 and legal

resources for tenants looking to evade eviction

during the COVID-19 pandemic and otherwise. And

it is no surprise that many people have done so—

living rent-free for three or more years in one of the

most expensive cities in the world is an unbeatable

deal. But the Constitution forecloses Los Angeles

from providing this gravy train at Petitioners’

expense. If the City wants to commandeer

Petitioners’ property to use as free housing in an

emergency, it must pay just compensation to the

rightful property owners. “[A] strong public desire to

improve the public condition is not enough to

warrant achieving the desire by a shorter cut than

the constitutional way of paying for the change.” Pa.

Coal Co. v. Mahon, 260 U.S. 393, 416 (1922).

This Court should grant the petition and put an

end to this racket. Absent judicial action, cities will

be free to enact similar eviction moratoriums that

commandeer private property for public use on a

2 See, e.g., Stay Housed LA, https://www.stayhousedla.org;

Tenant Power Toolkit, https://tenantpowertoolkit.org

whim, without compensating property owners for

their loss.

Argument

The right to exclude is a fundamental

aspect of property rights, and by

transferring this right from property

owner to tenant, the eviction moratorium

imposes a taking.

Property is “that sole and despotic dominion which

one man claims and exercises over the external

things of the world, in total exclusion of the right of

any other individual in the universe.” 2 William

Blackstone, Commentaries, *2; see also Rakas v.

Illinois, 439 U.S. 128, 143 n.12 (1978) (“One of the

main rights attaching to property is the right to

exclude others” (citing 2 William Blackstone,

Commentaries, ch. 1)). That right of exclusion is core

to property itself, such that this Court has described

the “right to exclude [as] ‘one of the most treasured’

rights of property ownership.” Cedar Point Nursery

v. Hassid, 594 U.S. 139, 149 (2021) (quoting Loretto

v. Teleprompter Manhattan CATV Corp., 458 U.S.

419, 435 (1982)).

Indeed, this Court’s cases repeatedly emphasize

that “the right to exclude is ‘universally held to be a

fundamental element of the property right,’ and is

‘one of the most essential sticks in the bundle of

rights that are commonly characterized as property.’”

Id. at 150 (2021) (quoting Kaiser Aetna v. United

States, 444 U.S. 164 (1979)).

But the eviction moratorium adopted by the City

of Los Angeles took that important stick from the

bundle of rights held by property owners who rent

their property and transferred it to their tenants by

granting tenants immunity from eviction.

In Hassid, this Court rejected the Ninth Circuit’s

holding that an easement for unions to enter a

property 120 days out of the year was simply a use

restriction rather than a taking. Id. at 154. “Saying

that appropriation of a three hour per day, 120 day

per year right to invade the growers’ premises ‘does

not constitute a taking of a property interest but

rather . . . a mere restriction on its use, is to use

words in a manner that deprives them of all their

ordinary meaning.’” Id. (quoting Nollan v. Cal.

Coastal Comm’n, 483 U.S. 825, 831 (1987)).

This Court should also reject the Ninth Circuit’s

holding in this case that the eviction moratorium is a

reasonable regulation of the landlord-tenant

relationship, which denies landlords the right to

evict nonpaying tenants or tenants who otherwise

violate the rental agreement. To call the City’s

eviction moratorium a “mere restriction” on use

rather than a taking deprives words of their ordinary

meaning. Id.

The eviction moratorium is one method of

protecting tenants from eviction, but it shifts the full

costs of this protection onto the landlords. For

various reasons related to COVID-19, the City

believed it was important to public health and safety

that tenants remain housed, even if they were

unable to pay their rent. But rather than subsidizing

the rent of tenants who found themselves unable to

pay, or providing substitute housing for tenants

facing eviction, or implementing other programs to

help tenants refrain from violating the provisions of

their rental agreements, Los Angeles instead decided

to place the burden of keeping tenants housed solely

on Petitioners.

That is exactly the solution the Takings Clause

forecloses. The Takings Clause is “designed to bar

Government from forcing some people alone to bear

public burdens which, in all fairness and justice,

should be borne by the public as a whole.” Armstrong

v. United States, 364 U.S. 40, 49 (1960). Government

actors are therefore barred from putting the private

property of an individual to a public use without first

providing that individual compensation for the

exaction—it is neither right nor just to single out

individuals to bear the cost of fulfilling the public

good. And yet that is precisely what the City’s

eviction moratorium does.

II.

The Ninth Circuit has misinterpreted the

“voluntary” distinction in Yee.

In denying that the eviction moratorium violates

the Takings Clause, the Ninth Circuit erred in

relying on Yee v. City of Escondido, 503 U.S. 519

(1992). The Ninth Circuit held that Yee stands for

the proposition that landowners who voluntarily

enter the rental market necessarily subject

themselves to regulation of the landlord-tenant

relationship and forfeit the right to exclude a tenant

from the property or to complain of a physical taking

in the future. GHP Mgmt. Corp. v. City of L.A., No.

23-55013, 2024 U.S. App. LEXIS 13097, at *3 (9th

Cir. May 31, 2024). But Yee concerned a local rent

control law for mobile home parks. It did not involve

a government restriction on the right to exclude.

In Yee, this Court determined that the

government had not mandated a physical invasion of

landlords’ property—and therefore had not taken

their right to exclude—because the tenants were

invited by the landlords, “not forced upon them by

the government.” 503 U.S. at 528. The regulatory

scheme in Yee limited rent increases but did not

decrease the rent already owed, and the property

owner retained the right to evict a tenant with 6 or

12 months notice. Id. at 527–528. By contrast, the

eviction moratorium functionally prohibits eviction

for any reason—including nonpayment of rent—

during the “Local Emergency Period,” an indefinite

period of time when enacted, which ultimately lasted

more than three years.

The Ninth Circuit’s focus on Yee’s voluntary

landlord-tenant relationship is misplaced in this case

for three reasons.

First, the lower court’s reasoning ignores the fact

that tenants invited to occupy a property may lose

that right if they violate the terms of their rental

agreement or fail to pay rent. Ordinarily, a landlord

retains the right to exclude tenants for violating

provisions of the rental agreement, nonpayment of

rent, or upon deciding to move into the property

themselves. The landlord here never voluntarily

agreed to rent the property to the tenant for free,

indefinitely, or unconditionally. Rather, the landlord

agreed to rent to the tenant only if certain conditions

were satisfied, including timely payment of rent and

conformance with other terms of the rental

agreement. The eviction moratorium throws these

conditions out the window and purports to authorize

a tenant to violate provisions of the rental agreement

without facing any consequences. Indeed, the

conditions set forth in the rental agreement that the

tenant must meet constitute the landlord’s exercise

of the right to exclude. But the eviction moratorium

effectively removes those conditions without

compensation and thus prohibits the landlord from

exercising the right to exclude.

The involuntary continuation of occupancy at a

price of zero dollars necessarily results in the

physical occupation by the tenant of the landlord’s

property pursuant to a public command. A tenant

who is no longer authorized to occupy the property

under the terms of their rental agreement but is

instead unilaterally authorized to do so by

government ordinance cannot continue to be called a

lessee; they are more accurately described as an

“interloper with a government license.” See FCC v.

Fla. Power Corp., 480 U.S. 245, 252–253 (1987).

A second reason why the Ninth Circuit’s focus on

Yee’s voluntary landlord-tenant relationship is

misplaced is that, contrary to the Ninth Circuit’s

finding, the eviction moratorium does not merely

regulate the voluntary landlord-tenant relationship.

Quoting Yee, the Ninth Circuit stated that “‘[t]he

government effects a physical taking only where it

requires the landowner to submit to the physical

occupation of his land’ by a third party.” GHP Mgmt.

Corp., 2024 U.S. App. LEXIS 13097, at *2 (quoting

Yee, 503 U.S. at 527) (emphasis in original).

Although this Court has consistently held that the

states have broad power to regulate housing

conditions and the landlord-tenant relationship, in

those cases the government did not authorize an

“occupation of the landlord’s property by a third

party.” Loretto, 458 U.S. at 440. This Court held in

Hassid that a regulation granting union organizers a

right to physically enter and occupy a grower’s

property was a per se physical taking because one

does not forfeit the right to exclude anyone from

one’s property by inviting particular people on to the

property. 594 U.S. at 149. In constrast, in Yee,

“Petitioners’ tenants were invited by petitioners, not

forced upon them by the government.” 503 U.S. at

528.

The eviction moratorium prohibits a landlord from

evicting third parties expressly barred by the rental

agreement—additional occupants or pets. See

Loretto, 458 U.S. at 440. When a landlord enters into

a rental agreement expressly prohibiting pets and

additional occupants it cannot fairly be said that the

landlord has voluntarily invited these prohibited

third parties onto their private property. And a

landlord’s decision to open a property up to

particular tenants does not mean that the landlord

has voluntarily opened the property to any tenants.

A final reason the Ninth Circuit’s focus on Yee’s

voluntary landlord-tenant relationship is misplaced

is that Yee distinguished the scenario presented in

this case and suggested it might require a different

outcome: “A different case would be presented were

the statute, on its face or as applied, to compel a

landowner over objection to rent his property or to

refrain in perpetuity from terminating a tenancy.”

Yee, 503 U.S. at 528 (citing Fla. Power Corp., 480

U.S. at 251–52, n.6; see also Nollan, 483 U.S. at 831–

32; Fresh Pond Shopping Center, Inc. v. Callahan,

464 U.S. 875, 877 (1983) (Rehnquist, J., dissenting)).

“Perpetuity” means an “endless or indefinitely

long duration or existence.” Valley Park Ranch, LLC

v. Commissioner, No. 12384-20, 2024 U.S. Tax Ct.

LEXIS 792, at *33 (T.C. Mar. 28, 2024) (citing

Perpetuity, Random House Webster’s College

Dictionary (2d ed. 2001)). Here, Los Angeles has, in

fact, “compel[led] a landowner over objection to rent

his property or to refrain in perpetuity from

terminating a tenancy.” Yee, 503 U.S. at 528. At the

start of the eviction moratorium, no end date was

set; the only limitation was the duration of the “Local

Emergency Period,” which was repeatedly extended

by cities and states all over the country. The eviction

moratorium prohibits the property owner from

removing their property from the rental market for

the indefinite duration of the “Local Emergency

Period,” and in Phase I (ultimately lasting from

March 2020 to June 1, 2022) landlords could not do

so even for their own personal use.

The Ninth Circuit incorrectly held that physical

possession of the rental property by nonpaying

tenants for the indefinite duration of the “Local

Emergency Period” was acceptable because

theoretically a landlord could evict a tenant for

“reasons not otherwise prohibited.” GHP Mgmt.

Corp., 2024 U.S. App. LEXIS 13097, at *3. But in

reality, the eviction moratorium operated as a “get

out of jail free card” for the duration of the “Local

Emergency Period” because a tenant merely needed

to declare, without any substantiating proof, that

COVID-19 was the cause of their violation or

nonpayment, and this allowed them to evade eviction

indefinitely.

Granting tenants (and unauthorized occupants)

the ability to violate their rental agreements without

consequence goes far beyond regulating a voluntary

landlord-tenant relationship and constitutes an

unconstitutional taking under the Fifth Amendment.

III.

Granting tenants a right to retain

possession of property indefinitely, for

free, and in violation of provisions of

their rental agreement is a physical

taking requiring compensation.

“Government action that physically appropriates

property is no less a physical taking because it arises

from a regulation.” Hassid, 594 U.S. at 149. “The

essential question is not . . . whether the government

action at issue comes garbed as a regulation, . . . it is

whether the government has physically taken

property for itself or someone else.” Id.

In Hassid, the regulation requiring access was a

per se physical taking because it “appropriate[d] for

the enjoyment of third parties the owners’ right to

exclude.” Id. Similarly, the eviction moratorium

transfers the right to exclude from the landlord to

the nonpaying tenant and their unauthorized

occupants and pets. It does not matter “that the

physical occupation here is by tenants and not by the

[City] itself.” Hall v. Santa Barbara, 833 F.2d 1270,

1277 (9th Cir. 1986). As this Court noted in Loretto,

“[a] permanent physical occupation authorized by

state law is a taking without regard to whether the

State, or instead a party authorized by the State, is

the occupant” 458 U.S. at 433 n.9. The eviction

moratorium clearly authorizes a physical occupation

by the tenant contrary to the terms of the tenant’s

rental agreement.

Moreover, the temporary yet indefinite nature of

the “Local Emergency Period” cannot save the

eviction

moratorium

from

constituting

compensable taking. A taking does not need to be

permanent to be compensable; even temporary

invasions are compensable takings. See First English

Evangelical Lutheran Church v. County of Los

Angeles, 482 U.S. 304, 318 (1987); Tahoe-Sierra Pres.

Council v. Tahoe Reg’l Planning Agency, 535 U.S.

302, 337 (2002); see also Ark. Game & Fish Comm’n

v. United States, 568 U.S. 23, 33 (2012) (“Ordinarily,

this Court’s decisions confirm, if government action

would qualify as a taking when permanently

continued, temporary actions of the same character

may also qualify as a taking.”).

The war against COVID-19 is not the first time

the government has temporarily commandeered

private property in the name of public necessity. In

the World War II era, “[i]n support of the war effort,

the Government took temporary possession of many

properties. These exercises of government authority,

the Court recognized, qualified as compensable

temporary takings.” Ark. Game & Fish Comm’n, 568

U.S. at 33; see also First English Evangelical

Lutheran Church, 482 U.S. at 318 (noting the

compensation required for “temporary” government

appropriations of private property in the WWII era).

This Court has recognized a period of seizure as

short as five and one-half months as a compensable

taking. See United States v. Pewee Coal Co., 341 U.S.

114 (1951) (holding that the government must pay

just compensation to the coal company in the amount

of the operating loss sustained during the period that

the government possessed and operated the mine to

avert a strike). Here, the eviction moratorium lasted

for 47 months, more than eight times as long as the

compensable taking in Pewee Coal.

Under this Court’s takings jurisprudence, brief

invasions are compensable. The duration of the

invasion affects the amount of compensation due, but

not whether compensation is required. United States

v. Dow, 357 U.S. 17, 26 (1958); see also United States

v. Gen. Motors Corp., 323 U.S. 373, 380 (1945). To

put it simply, “the more you take the more you pay.”

Richard A. Epstein, Simple Rules for a Complex

World, 131, (1995). If temporary flooding in

Arkansas Game & Fish Commission was a taking of

property, then indefinite flooding must also be a

taking. Indefinite physical occupations are what the

eviction moratorium required on its face at the time

of enactment; the eviction moratorium was set to last

for the duration of the “Local Emergency Period”

defined as “March 4, 2020 to the end of the local

emergency as declared by the Mayor.” 3

The government is not only required to pay the

equivalent rental value of a building that it has

temporarily

commandeered,

but

must

also

compensate the rightful owner for damage or

depreciation in value of the property. Gen. Motors

Corp., 323 U.S. at 383–84. Los Angeles has

permanently devalued Petitioners’ property, placing

the cost of protecting public health during the

COVID-19 emergency on Petitioners, rather than

accepting the burden as the City’s own

responsibility. See Ala. Ass’n of Realtors v. HHS, 594

U.S. 758, 765 (2021) (“Despite the [government’s]

determination that landlords should bear a

significant financial cost of the pandemic, many

landlords have modest means. And preventing them

from evicting tenants who breach their leases

3 Ordinance No. 186585, available at

http://clkrep.lacity.org/onlinedocs/2020/20-0147S19_ORD_186585_03-31-2020.pdf

intrudes on one of the most fundamental elements of

property ownership—the right to exclude.”).

The Ninth Circuit claims that Petitioners’ lost

rent payments does not represent a diminution in

property values. But the value of a rental property is

determined by approximating the value of future

rents to be collected from that property.4 The

prospect of future emergencies justifying eviction

moratoriums thus devalues the properties in the eyes

of any prudent investor, who stands to lose money

even if such policies only delay the collection of rent,

due to the time value of money, and who faces the

risk that a judgment-proof tenant will not actually

pay the full amount of their past-due rent at the end

of the moratorium period.5 There is no way of

knowing when the City will implement such a policy

again, and there is no shortage of housing-related

“emergencies” in a state with ever-rising housing

costs and a growing unhoused population that the

government has attributed to the “winding down” of

pandemic-era eviction protections.6

4 Damon Darlin, “Home valuation: Pull out your calculator,”

N.Y. Times, April 3, 2006,

https://www.nytimes.com/2006/04/03/realestate/homevaluation-pull-out-your-calculator.html

5 Catherine Cote, “Time Value of Money (TVM): A Primer,”

Harvard Business School Online, June 16, 2022,

https://online.hbs.edu/blog/post/time-value-of-moneyy

6 HUD Press Release No. 23-278, December 15, 2023,

https://www.hud.gov/press/press_releases_media_advisories/HU

D_No_23_278 (“This rise in first-time homelessness is likely

“When the government physically takes

possession of an interest in property for some public

purpose, it has a categorical duty to compensate the

former owner, regardless of whether the interest that

is taken constitutes an entire parcel or merely a part

thereof.” Tahoe-Sierra, 535 U.S. at 322 (citing Pewee

Coal Co., 341 U.S. at 115). The City has done exactly

that by commandeering Petitioner’s property for the

promotion of public health, but it has shirked it’s

duty to compensate Petitioners. Picking the pockets

of landlords one “Local Emergency Period” at a time

cannot withstand constitutional scrutiny. In the

interest of justice, the Court must enforce the duty

imposed by the Takings Clause and require the City

to pay for what it has taken from Petitioners.

Conclusion

In what meaningful sense could Petitioners be

said to actually own the properties in question

during the emergency period? They were prohibited

from physically occupying them and from renting

those properties to another tenant who might

actually pay their rent. Worse, they were tasked with

a continuing duty to maintain the residences in

accordance with California law,7 at their own

attributable to a combination of factors, including but not

limited to, the recent changes in the rental housing market and

the winding down of pandemic protections and programs

focused on preventing evictions and housing loss.”)

7 Calif. Civ. Code §§ 1941, 1942.

expense, solely for the benefit of nonpaying tenants

who violated their rental agreements.

The Takings Clause does not allow the

government to force landlords to provide the use of

their property for the public benefit simply because

of the existence of a public emergency like COVID19. “The Fifth Amendment’s guarantee that private

property shall not be taken for a public use without

just compensation was designed to bar Government

from forcing some people alone to bear public

burdens which, in all fairness and justice, should be

borne by the public as a whole.” Armstrong, 364 U.S.

at 49.

And enforcing the Takings Clause leads to

efficient outcomes for all. “Placing the government

under a price system (through the payment of just

compensation) increases the odds that takings will

only occur when their social gains exceed their social

costs.” Richard A. Epstein, Physical and Regulatory

Takings: One Distinction Too Many, 64 Stanford L.

Rev. 99, 101 (2012). If the City of Los Angeles deems

it important to keep people housed, the City must

bear the cost of subsidizing such an endeavor rather

than foisting the costs onto landlords. “Public

necessity does not defeat the obligation to pay

compensation.” Richard A. Epstein, Rent Control and

the Theory of Efficient Regulation, 54 Brook. L. Rev.

741, 748 (1988). Landlords did not volunteer to rent

their properties for free, nor to tenants who violate

their rental agreements.

This Court should grant the petition and hold

that the perpetual right to occupy property effects a

permanent

physical

taking

requiring

just