Thu. Mar 23rd, 2023
PROPERTY RIGHTS

Good News for Landlords

Is the US Government, Corrupt California or other State, or Anti-Capitalists from Los Angeles or other Municipal ALLOWING YOUR TENANTS TO NOT PAY RENT ?

Are they enacting ordinances to allow delinquency of debt is against property owner rights. The National Emergency of COVID-19 Pandemic is over. On Feb 22, 2022 — President Biden released a notice extending the national emergency declaration for the COVID-19 pandemic beyond March 1 2022. Any ordinance made after this NON PANDEMIC is considered unconstitutional.

The Fifth Amendment protects the right to private property in two ways.  First, it states that a person may not be deprived of property by the government without “due process of law,read more 

The following case below hold liable all government employees that make ordinances outside of a national emergency which as of March 1, 2022 Covid-19 Emergency is officially over CHAVIS V. BLIBAUM, ___Md.___(August 27, 2021) see also  BRITTANY SIMMONS, ET AL.   v.     THE MARYLAND MANAGEMENT COMPANY, ET AL.  read more here


You cannot impose any law or doctrine that would prevent me from the exercising of a privilege granted by the Bill of Rights. MURDOCK v. COMMONWEALTH OF PENNSYLVANIA A state may not impose a charge for the enjoyment of a right granted by the federal constitution


Marbury v. Madison Chief Justice John Marshall Marbury v. Madison, 5 US (1Cranch) 137, 174, 176 (1803) All laws which are repugnant to the Constitution are null and void. Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803), was a landmark U.S. Supreme Court case that established the principle of judicial review in the United States, meaning that American courts have the power to strike down laws and statutes that they find to violate the Constitution of the United States.


But whenever the operation and effect of any general regulation is to extinguish or destroy that which by law of the land is the property of any person, so far as it has that effect, it is unconstitutional and void.  Thus, a  law is considered as being a deprivation of property within the meaning of this constitutional guaranty if it deprives an owner of one of its essential attributes, destroys its value, restricts or interrupts its common, necessary, or profitable use, hampers the owner in the application of it to the purposes of trade, or imposes conditions upon the right to hold or use it and thereby seriously impairs its value.  (Statute) 167 Am. Jur. 2d, Constitutional Law, Section 369.


Justice  Bandeis  eloquently  affirmed  his  condemnation  of  abuses practiced by Government officials, who were defendants, acting as Government officials. In the case of  Olmstead vs. U.S. 277 US 438, 48 S.Ct. 564, 575; 72 L ED 944 (1928) he declared:


“Decency,  security,  and  liberty  alike  demand  that Government officials shall be subjected to the same rules of  conduct  that  are  commands  to  the  Citizen.  In  a Government of laws, existence of the Government will be imperiled if it fails to observe the law scrupulously. Our Government is the potent, the omnipresent teacher.


For good or for ill, it teaches the whole people by its example. Crime is contagious. If the Government becomes a law-breaker, it breads contempt for law; it invites every man to become a law unto himself. It invites anarchy. To declare that, in the administration of the law, the end justifies the means would bring a terrible retribution. Against that pernicious doctrine, this Court should resolutely set its face.”


“As general rule men have natural right to do anything which their inclinations may suggest, if it be not evil in itself, and in no way impairs the rights of others.”  In Re Newman (1858), 9 C. 502.


Under USC Title 42 §1982. Property rights of citizens …, further evidences the above position that the City or State cannot take land because they DO NOT have Jurisdiction.                         It states that federal or state governments / agencies MUST have a monetary or proprietary interest in your real private property in order to have jurisdiction over it (if your land has no government grant/funding or is not a subsidized government project, then agencies have neither).                         DEMAND any public servant/said agencies to provide the legal document that allows any federal or state agency to supersede and/or bypass Title 42 USC §1982 and/or §1441.   Title 42 §1983. Civil action for deprivation of rights …, further  protects Declarant’s private property.


In Leiberg v. Vitangeli, 70 Ohio App. 479, 47 N.E. 2d 235, 238-39 (1942) “These constitutional provisions employ the word ‘person,’ that is. anyone whom we have permitted to peaceably reside within our borders may resort to our courts for redress of an injury done him in his land, goods, person or reputation. The real party plaintiff for whom the nominal plaintiff sues is not shown to have entered our land in an unlawful manner. We said to her, you may enter and reside with us and be equally protected by our laws so long as you conform thereto. You may own property and our laws will protect your title. “We, as a people, have said to those of foreign birth that these constitutional guaranties shall assure you of our good faith. They are the written surety to you of our proud boast that the United States is the haven of refuge of the oppressed of all mankind.” Court will assign to common-law terms their common-law meaning unless legislature directs otherwise.


Douglass, Adm’r., v. Stephens, Delaware Chancery, Vol. 1, Page 470 (1821) “When men entered into a State they yielded a part of their absolute rights, or natural liberty, for political or civil liberty, which is no other than natural liberty restrained by human laws, so far as is necessary and expedient for the general advantage of the public. The rights of enjoying and defending life and liberty, of acquiring and protecting reputation and property, – and, in general, of attaining objects suitable to their condition, without injury to another, are the rights of a citizen; and all men by nature have them.”


Allodial Land Barker v Dayton 28 Wisconsin 367 (1871): “All lands within the state are declared to be allodial, and feudal tenures are prohibited. On this point counsel contended, first, that one of the principal elements of feudal tenures was, that the feudatory could not independently alien or dispose of his fee; and secondly, that the term allodial describes free and absolute ownership, … independent ownership, in like manner as personal property is held; the entire right and dominion; that it applies to lands held of no superior to whom the owner owes homage or fealty or military service, and describes an estate subservient to the purposes of commerce, and alienable at the will of the owner; the most ample and perfect interest which can be owned in land.”


Due process of law and the equal protection of the laws are secured if the laws operate on all alike, and do not subject the individual to an arbitrary exercise of the powers of government.Giozza v. Tiernan, 148 U.S. 657, 662 (1893), Citations Omitted “Undoubtedly it (the Fourteenth Amendment) forbids any arbitrary deprivation of life, liberty or property, and secures equal protection to all under like circumstances in the enjoyment of their rights… It is enough that there is no discrimination in favor of one as against another of the same class. …And due process of law within the meaning of the [Fifth and Fourteenth] amendment is secured if the laws operate on all alike, and do not subject the individual to an arbitrary exercise of the powers of government.”


Alexander v.Bothsworth, 1915. “Party cannot be bound by contract that he has not made or authorized. Free consent is an indispensable element in making valid contracts.”

Hale v. Henkel 201 U.S. 43 at 89 (1906) HALE v. HENKEL 201 U.S. 43 at 89 (1906) Hale v. Henkel was decided by the united States Supreme Court in 1906. The opinion of the court states: “The “individualmay stand uponhis Constitutional Rights as a CITIZEN. He is entitled to carry on his “private” business in his own way. “His power to contract is unlimited.” He owes no duty to the State or to his neighbors to divulge his business, or to open his doors to an investigation, so far as it may tend to incriminate him. He owes no duty to the State, since he receives nothing there from, beyond the protection of his life and property. “His rights” are such as “existed” by the Law of the Land (Common Law) “long antecedent” to the organization of the State”, and can only be taken from him by “due process of law”, and “in accordance with the Constitution.” “He owes nothing” to the public so long as he does not trespass upon their rights.”

Hale v. Henkel 201 U.S. 43 at 89 (1906) Hale v. Henkel is binding on all the courts of the United States of America until another Supreme Court case says it isn’t. No other Supreme Court case has ever overturned Hale v. Henkel None of the various issues of Hale v. Henkel has ever been overruled Since 1906, Hale v. Henkel has been cited by the Federal and State Appellate Court systems over 1,600 times! In nearly every instance when a case is cited, it has an impact on precedent authority of the cited case. Compared with other previously decided Supreme Court cases, no other case has surpassed Hale v. Henkel in the number of times it has been cited by the courts. Basso v. UPL, 495 F. 2d 906 Brook v. Yawkey, 200 F. 2d 633

Lochner v. New York The general right to make a contract in relation to his business is part of the liberty protected by the Fourteenth Amendment, and this includes the right to purchase and sell labor, except as controlled by the State in the legitimate exercise of its police power.

 

Please feel Free to read the excellent pamphlet to help you secure your RIGHT to contracts! 

FREEDOM OF CONTRACT by David E. Bernstein, George Mason University School of Law

 

and here is the Amendment to OUR US LAW that GRANTS YOU THESE RIGHTS 

Overview of Contract Clause



Griffin v. Mathews, 310 Supp. 341, 423 F. 2d 272 Hagans v. Lavine, 415 U.S. 528 Howlett v. Rose, 496 U.S. 356 (1990) Federal Law and Supreme Court Cases apply to State Court Cases. Sims v. Aherns, 271 SW 720 (1925) “The practice of law is an occupation of common right.”


“To say that one may not defend his own property is usurpation of power by legislature.”  O’Connell v. Judnich (1925), 71 C.A.386, 235 664.


The State cannot diminish rights of the peopleHurtado v. California, 110 U.S. 516.


“A state MAY NOT impose a charge for the enjoyment of a right granted (sic) by the Federal Constitution.” MURDOCK v PENNSYLVANIA, 319 US 105.


 

Inferior Courts – The term may denote any court subordinate to the chief tribunal in the particular judicial system;  but it is commonly used as the designation of a court of  special,  limited, or  statutory jurisdiction, whose  record must show the  existence and  attaching of jurisdiction in any given case, in order to give  presumptive validity to its  judgment.  In re Heard’s Guardianship, 174 Miss. 37, 163, So. 685.


The high Courts have further decreed, that Want of Jurisdiction makes “…all acts of judges, magistrates, U.S. Marshals, sheriffs, local police, all void and not just voidable.”   Nestor  v.  Hershey,  425 F2d 504.


People v. Young (1983) 340 N.W.2d 805,418 Mich. 1. Common law, by constitution, is law of state.


To be that statutes which would deprive a citizen of the rights of person or property without a regular trial, according to the course and usage of  common law, would not be the law of the land. (Jury) Hoke v. Henderson, 15, N.C. 15 25 AM Dec 677.

Void Judgment –  “One which has no legal force or effect, invality of which may be asserted by any person whose rights are affected at any time and at any place directly or collaterally.   Reynolds   v.Volunteer State Life Ins. Co., Tex.Civ.App., 80 S.W.2d 1087, 1092.

Voidable Judgment – “One apparently valid, but in truth wanting in some material respect.”  City of Lufkin v. McVicker, Tex.Civ.App., 510 S.W. 2d 141, 144.


Property MUST be devoted / pledged to the public with your consent and being fully compensated for such

“… In one of the so-called elevator cases, that of Munn v. Illinois94 U. S. 113, [24 L. Ed. 77], it is said: ‘When, therefore, one devotes his property to a use in which the public have an interest, he in effect grants to the public an interest in that use, and must submit to be controlled by the public for the common good, to the extent of the interest he has thus created.’  But so long as he uses his property for private use, and in the absence of devoting it to public use, the public has no interest therein which entitles it to a voice in its control.  Other case to the same effect are Budd v. New York, 143 U. S. 517, [36 L. Ed. 247, 12 Sup. Ct. Rep. 468];  Weems Steamboat Co. v. Peoples Co., 214 U. S. 345, [16 Ann. Cas. 1222, 53 L. Ed. 1024, 29 Sup. Ct. Rep. 661]; Monongahela Nav. Co. v. United States, 148 U. S. 336, [37 L. Ed. 463, 13 Sup. Ct. Rep. 622]; and Del Mar Water Co. v. Eshleman, 167 Cal. 666, [140 Pac. 591, 948].  Indeed, our attention is directed to no authority in this state or elsewhere holding otherwise.” Associated etc. Co. v. Railroad Commission  (1917) 176 Cal. 518, 526.

“… That subjecting petitioners’ property to the use of the public as common carriers constitutes a taking of the same, admits of no controversy.  ‘Whenever a law deprives the owner of the beneficial use and free enjoyment of his property, or imposes restraints upon such use and enjoyment that materially affect its value, without legal process or compensation, it deprives him of his property within the meaning of the constitution. … It is not necessary, in order to render the statute obnoxious to the restraints of the constitution, that it must in terms or effect authorize the actual physical taking of the property or the thing itself, so long as it affects its free use and enjoyment, or the power of disposition at the will of the owner.’  (Forster v. Scott,136 N. Y. 577, [18 L. R. A. 543, 32 N. E. 976]; Monongahela Nav.Co. v. United States, 148 U. S. 312, 336, [37 L. Ed. 463, 13 Sup. Ct. Rep. 622]. … Mr. Lewis in his work on Eminent Domain, third edition, section 11, says: ‘A law which authorizes the taking of private property without compensation, … cannot be considered as due process of law in a free government.’  (Chicago etc, R. R. Co. v. Chicago, 166 U. S. 226, [41 L. Ed. 979, 17 Sup. Ct. Rep. 581].” Associated Co. v. Railroad Commission (1917) 176 Cal. 518, 528-530.

It is beyond the power of a State by legislation fiat to convert property used exclusively in the business of a private carrier, into a public utility, or to make the owner a public carrier, for that would be taking private property for public use without just compensation which no State can do consistently with the due process of law clause of the 14th Amendment.  (See police power) Producers Transportation Co. v. RR Commission, 251 U.S. 228, 230; Wolff Co. v. Duke, 266 U.S. 570, 578.


An unconstitutional law is not a law, it confers no rights, imposes no duties, and affords no protection. Norton vs. Shelby County, 118 US 425.


“Primacy of position in our state constitution is accorded the Declaration of Rights; thus emphasizing the importance of those basic and inalienable rights of personal liberty and private property which are thereby reserved and guaranteed to the people and protected from arbitrary invasion or impairment from any governmental quarter. The Declaration of Rights constitutes a limitation upon the powers of every department of the state government. State ex rel. Davis v. Stuart. 64 A.L.R. 1307, 97 Fla. 69, 120 So. 335.


“The rights of the individual are not derived from governmental agencies, either municipal, state, or federal, or even from the Constitution. They exist inherently in every man, by endowment of the Creator, and are merely reaffirmed in the Constitution, and restricted only to the extent that they have been voluntarily surrendered by the citizenship to the agencies of government. The people’s rights are not derived from the government, but the government’s authority comes from the people. The Constitution but states again these rights already existing, and when legislative encroachment by the nation, state, or municipality invade these original and permanent rights, it is the duty of the courts to so declare, and to afford the necessary relief. City of Dallas, et al. v. Mitchell, 245 S. W. 944, 945-46 (1922).


The US Constitution is designated as a supreme enactment, a fundamental act of legislation by the people of the state.   The constitution is legislation direct from the people acting in their sovereign capacity, while a statute is legislation from their representatives, subject to limitations prescribed by the superior authority. Ellingham v. Dye, 178 Ind.  336; NE 1; 231 U.S. 250; 58 L. Ed. 206; 34 S. Ct. 92;  Sage v. New York, 154 NY 61; 47 NE 1096.


“Owner has constitutional right to use and enjoyment of his property.” Simpson v. Los Angeles (1935), 4 C.2d 60, 47 P.2d 474.


“We find it intolerable that one constitutional right should have to be surrendered in order to assert another”. SIMMONS v US, supra.


“When rights secured by the Constitution are involved, there can be no rule making or legislation which would abrogate them.” Miranda vs. Arizona, 384 US 436 p. 491.


“The claim and exercise of a Constitutional right cannot be converted into a crime.” Miller v. U.S. 230 F 2d 486, 489.


History is clear that the first ten amendments to the Constitution were adopted to secure certain common law rights of the people, against invasion by the Federal Government.”                                Bell v. Hood, 71 F.Supp., 813, 816 (1947) U.S.D.C. — So. Dist. CA.


Economic necessity cannot justify a disregard of cardinal constitutional guarantee.  Riley v. Certer, 165 Okal. 262; 25 P.2d 666; 79 ALR 1018.


When any court violates the clean and unambiguous language of the Constitution, a fraud is perpetrated and no one is bound to obey it. (See 16 Ma. Jur. 2d 177, 178) State v. Sutton, 63 Minn. 147, 65 NW 262, 30 L.R.A. 630 Am. 459.


“The ‘liberty’ guaranteed by the constitution must be interpreted in the light of the common law, the principles and history of which were familiar and known to the framers of the constitution. This liberty denotes the right of the individual to engage in any of the common occupations of life, to locomote, and generally enjoy those rights long recognized at common law as essential to the orderly pursuit of happiness by free men.” Myer v. Nebraska, 262 U .S. 390, 399; United States v. Kim Ark, 169 U.S. 649, 654.


“An unconstitutional act is not law; it confers no rights; it imposes no duties; affords no protection; it creates no office; it is in legal contemplation, as inoperative as though it had never been passed.” Norton vs. Shelby County, 118 US 425 p. 442.  “The general rule is that an unconstitutional statute, though having the form and name of law, is in reality no law, but is wholly void, and ineffective for any purpose; since unconstitutionality dates from the time of its enactment, and not merely from the date of the decision so branding it.


“No one is bound to obey an unconstitutional law and no courts are bound to enforce it.”  16 Am Jur 2nd, Sec 177 late 2d, Sec 256.


All laws which are repugnant to the Constitution are null and void. Chief Justice Marshall, Marbury vs Madison, 5, U.S. (Cranch) 137, 174, 176 (1803).


It cannot be assumed that the framers of the constitution and the people who adopted it, did not intend that which is the plain import of the language used.   When the language of the constitution is positive and free of all ambiguity, all courts are not at liberty, by a resort to the refinements of legal learning, to restrict its obvious meaning to avoid the hardships of particular cases.  We must accept the constitution as it reads when its language is unambiguous, for it is the mandate of the sovereign power.  Cook vs Iverson, 122, N.M. 251.


Right of protecting property, declared inalienable by constitution, is not mere right to protect it by individual force, but right to protect it by law of land, and force of body politic.” Billings v. Hall (1857), 7 C. 1.


“Constitution of this state declares, among inalienable rights of each citizen, that of acquiring, possessing and protecting property.  This is one of primary objects of government, is guaranteed by constitution, and cannot be impaired by legislation.”  Billings v. Hall (1857), 7 C. 1.


State Constitution – “The state constitution is the mandate of a sovereign people to its servants and representatives.  Not one of them has a right to ignore or disregard these mandates…”  John F. Jelko Co. vs. Emery, 193 Wisc. 311;  214 N.W. 369, 53 A.L.R., 463;   Lemon vs. Langlin, 45 Wash. 2d 82, 273 P.2d 464.


Griffin v. Mathews, 310 Supp. 341, 423 F. 2d 272 Hagans v. Lavine, 415 U.S. 528 Howlett v. Rose, 496 U.S. 356 (1990) Federal Law and Supreme Court Cases apply to State Court Cases. Sims v. Aherns, 271 SW 720 (1925) “The practice of law is an occupation of common right.”


 

 


 

ENGLISH TORT LAW 61. Ashby v. White, (1703) 92 Eng. Rep. 126 (K.B.); BLACKSTONE, supra note 59, at 23. 62. 5 U.S. (1 Cranch) 137, 163-66 (1803) (“It is a general and indisputable rule, that where there is a legal right, there is also a legal remedy by suit or action at law, whenever that right is invaded . . . . [F]or it is a settled and invariable principle in the laws of England, that every right, when withheld, must have a remedy, and every injury its proper redress.”).

ENGLISH TORT LAWAshby v. White, (1703) 92 Eng. Rep. Facts Mr Ashby was prevented from voting at an election by the misfeasance of a constable, Mr White, on the apparent pretext that he was not a settled inhabitant. At the time, the case attracted considerable national interest, and debates in Parliament. It was later known as the Aylesbury election case. In the Lords, it attracted the interest of Peter King, 1st Baron King who spoke and maintained the right of electors to have a remedy at common law for denial of their votes, against Tory insistence on the privileges of the Commons. Sir Thomas Powys (c. 1649-1719) defended William White in the House of Lords. The argument submitted was that the Commons alone had the power to determine election cases, not the courts. Judgment Holt CJ was dissenting in his judgment in the High Court, but this was upheld by the House of Lords. He said at pp 273-4: “ “If the plaintiff has a right, he must of necessity have a means to vindicate and maintain it, and a remedy if he is injured in the exercise or enjoyment of it, and, indeed it is a vain thing to imagine a right without a remedy; for want of right and want of remedy are reciprocal… And I am of the opinion that this action on the case is a proper action. My brother Powell indeed thinks that an action on the case is not maintainable, because
there is no hurt or damage to the plaintiff, but surely every injury imports a damage, though it does not cost the party one farthing, and it is impossible to prove the contrary; for a damage is not merely pecuniary but an injury imports a damage, when a man is thereby hindered of his rights. To allow this action will make publick officers more careful to observe the constitution of cities and boroughs, and not to be so partial as they commonly are in all elections, which is indeed a great and growing mischief, and tends to the prejudice of the peace of the nation.


 

The People are the Sovereign!

U.S. adopted Common laws of England with the Constitution. Caldwell vs. Hill, 178 SE 383 (1934).


“The phrase common lawfound in this clause, is used in contradistinction to equity, and admiralty, and maritime jurisprudence.”  Parsons v. Bedford, et al, 3 Pet 433, 478-9.


“If the  common law can try the cause, and give full redress, that alone takes away the admiralty jurisdiction.” Ramsey v. Allegrie, supra, p. 411.

“The People of a State are entitled to all rights which formerly belonged to the King by his prerogative.” Lansing v. Smith, 4 Wendell 9, 20 (1829)

“In the United States the People are sovereign and the government cannot sever its relationship to the People by taking away their citizenship.” Afroyim v. Rusk, 387 U.S. 253 (1967).

In Europe, the executive is synonymous with the sovereign power of a state…where it is too commonly acquired by force or fraud or both…In America, however the case is widely different. Our government is founded upon Compact. Sovereignty was, and is, in the People. Glass v. The Sloop Betsy, 3 Dall 6.(1794)

It is a Maxim {an established principle} of the Common Law that when an act of Parliament is made for the public good, the advancement of religion and justice, and to prevent injury and wrong, the King shall be bound by such an act, though not named; but when a Statute is general, and any prerogative Right, title or interest would be divested or taken from the King (or the People) in such case he shall not be bound. The People vs. Herkimer, 15 Am. Dec. 379, 4 Cowen 345 (N.Y. 1825).

Chisholm v. Georgia, Dallas Supreme Court Reports, Vol. 2, Pages 471, 472 (1793) “It will be sufficient to observe briefly, that the sovereignties in Europe, and particularly in England, exist on feudal principles. That system considers the prince as the sovereign, and the people as his subjects; it regards his person as the object of allegiance… No such ideas obtain here; at the revolution, the sovereignty devolved on the people; and they are truly the sovereigns of the country, but they are sovereigns without subjects… and have none to govern but themselves…”

Douglass, Adm’r., v. Stephens, Delaware Chancery, Vol. 1, Page 470 (1821) “When men entered into a State they yielded a part of their absolute rights, or natural liberty, for political or civil liberty, which is no other than natural liberty restrained by human laws, so far as is necessary and expedient for the general advantage of the public. The rights of enjoying and defending life and liberty, of acquiring and protecting reputation and property, – and, in general, of attaining objects suitable to their condition, without injury to another, are the rights of a citizen; and all men by nature have them.”

Allodial Land Barker v Dayton 28 Wisconsin 367 (1871): “All lands within the state are declared to be allodial, and feudal tenures are prohibited. On this point counsel contended, first, that one of the principal elements of feudal tenures was, that the feudatory could not independently alien or dispose of his fee; and secondly, that the term allodial describes free and absolute ownership, … independent ownership, in like manner as personal property is held; the entire right and dominion; that it applies to lands held of no superior to whom the owner owes homage or fealty or military service, and describes an estate subservient to the purposes of commerce, and alienable at the will of the owner; the most ample and perfect interest which can be owned in land.”

Sovereignty itself is. of course, not subject to law, for it is the author and source of law; but in our system, while sovereign powers are delegated to the agencies of government, sovereignty itself remains with the people, by whom and for whom all government exists and acts. And the law is the definition and limitation of power. For the very idea that one man may be compelled to hold his life, or the means of living, or any material right essential to the enjoyment of life, at the mere will of another, seems to be intolerable in any country where freedom prevails., as being the essence of slavery itself.

(Yick Wo vs. Hopkins, U.S. 356 (1886). “…The Congress cannot revoke the Sovereign power of the people to override their will as thus declared.” Perry v. United States, 294 U.S. 330, 353 (1935). “In the United States, Sovereignty resides in the people, who act through the organs established by the Constitution.” Chisholm v. Georgia, 2 Dall 419, 471; Penhallow v. Doane’s Administrators, 3 Dall 54, 93; McCullock v. Maryland, 4 Wheat 316,404,405; Yick Yo v. Hopkins, 118 U.S. 356, 370.”  The rights of the individuals are restricted only to the extent that they have been voluntarily surrendered by the citizenship to the agencies of government.” City of Dallas v Mitchell, 245 S.W. 944

What is a constitution? It is the form of government, delineated by the mighty hand of the people, in which certain first principles of fundamental laws are established.” See: Vanhorne’s Lessee v. Dorrance , 2 U.S. 304(1795).

A constitution is designated as a supreme enactment, a fundamental act of legislation by the people of the state. A constitution is legislation direct from the people acting in their sovereign capacity, while a statute is legislation from their representatives, subject to limitations prescribed by the superior au&priry. See: Ellingham v. Dye, 178 Ind. 336; 99 NE 1; 231 U.S. 250; 58 L. Ed. 206; 34 S. Ct. 92; Sage v. New York, 154 NY 61; 47 NE 1096.

The question is not what power the federal government ought to have, but what powers, in fact, have been given by the people…. The federal union is a government of delegated powers. It has only such as are expressly conferred upon it, and such as are reasonably to be implied from those granted. In this respect, we differ radically from nations where all legislative power, without restriction of limitation, is vested in a parliament or other legislative body subject to no restrictions except the discretion of its members. See: U.S. v. William M. Butler, 297 U.S. 1.

But it cannot be assumed that the framers of the Constitution and the people who adopted it did not intent that which is the plain import of the language used. When the language of the Constitution is positive and free from all ambiguity, all courts are not at liberty, by a resort to the refinements of legal learning, to restrict its obvious meaning to avoid hardships of particular cases, we must accept the Constitution as it reads when its language is unambiguous, for it is the mandate of the sovereign powers. See: State v. Sutton, 63 Minn. 147, 65 WX N.W., 262,101, N.W. 74; Cook v. Iverson, 122, N.M. 251.

The people themselves have it in their power effectually to resist usurpation, without being driven to an appeal in arms. An act of usurpation is not obligatory: It is not law; and any man may be justified in his resistance. Let him be considered as a criminal by the general government: yet only his fellow citizens can convict him. They are his jury, and if they pronounce him innocent, not all powers of congress can hurt him; and innocent they certainly will pronounce him, if the supposed law he resisted was an act of usurpation. See: 2 Elliot’s Debates, 94; 2 Bancroft, History of the Constitution, 267.

In this state, as well as in all republics, it is not the legislation, however transcendent its powers, who are supreme— but the people— and to suppose that they may violate the fundamental law is, as has been most eloquently expressed, to affirm that the deputy is greater than his principal; that the servant is above his master; that the representatives of the people are superior to the people themselves: that the men acting by virtue of delegated powers may do. not only what then- powers do not authorize, but what they forbid. See: Warning v. the Mayor of Savannah, 60 Georgia, P. 93.

There have been powerful hydraulic pressures throughout our history that bear heavily on the court to water down constitutional guarantees and give the police the upper hand. That hydraulic pressure has probably never been greater than it is today. Yet if the individual is no longer to be sovereign, if the police can pick him up whenever they do not like the cut of his jib, if they can “seize” and “search” him hi their discretion, we enter a new regime. The decision to enter it should be made only after a full debate by the people of this country. See: Terry v. Ohio. 392 U.S. 39 (1967).

“Personal liberty, or the Right to enjoyment of life and liberty, is one of the fundamental or natural Rights, which has been protected by its inclusion as a guarantee in the various constitutions, which is not derived from, or dependent on, the U.S. Constitution, which may not be submitted to a vote and may not depend on the outcome of an election. It is one of the most sacred and valuable Rights, as sacred as the Right to private property … and is regarded as inalienable.” 16 C.J.S., Constitutional Law, Sect.202, p.987

 

The question is not what power the federal government ought to have, but what powers, in fact, have been given by the people…. The federal union is a government of delegated powers. It has only such as are expressly conferred upon it, and such as are reasonably to be implied from those granted. In this respect, we differ radically from nations where all legislative power, without restriction of limitation, is vested in a parliament or other legislative body subject to no restrictions except the discretion of its members. See: U.S. v. William M. Butler, 297 U.S. 1.

But it cannot be assumed that the framers of the Constitution and the people who adopted it did not intent that which is the plain import of the language used. When the language of the Constitution is positive and free from all ambiguity, all courts are not at liberty, by a resort to the refinements of legal learning, to restrict its obvious meaning to avoid hardships of particular cases, we must accept the Constitution as it reads when its language is unambiguous, for it is the mandate of the sovereign powers. See: State v. Sutton, 63 Minn. 147, 65 WX N.W., 262,101, N.W. 74; Cook v. Iverson, 122, N.M. 251.

“The constitution was ordained and established by the people of the United States for themselves, for their own government, and not for the government of the individual states. Each state established a constitution for itself, and in that constitution, provided such limitations and restrictions on the powers of its particular government, as its judgment dictated. The people of the United States framed such a government for the United States as they supposed best adapted to their situation and best calculated to promote their interests. The powers they conferred on this government were to be exercised by itself; and the limitations on power, if expressed in general terms, are naturally, and, we think, necessarily, applicable to the government created by the instrument. They are limitations of power granted in the instrument itself; not of distinct governments, framed by different persons and for different purposes. If these propositions be correct, the fifth amendment must be understood as restraining the power of the general government, not as applicable to the states.” Sovereignty itself is, of course, not subject to law, for it is the author and source of law; but in our system, while sovereign powers are delegated to the agencies of government, sovereignty itself remains with the people, by whom and for whom all government exists and acts. And the law is the definition and limitation of power. For the very idea that one man may be compelled to hold his life, or the means of living, or any material right essential to the enjoyment of life, at the mere will of another. seems to be intolerable on any country where freedom prevails, as being the essence of slavery itself. See: Yick Wo v. Hopkins ,118 U.S. 356 (1886).

People are supreme, not the state.  Waring vs. the Mayor of Savannah, 60 Georgia at 93.

“In the United States, Sovereignty resides in the people, who act through the organs established by the Constitution.” See: Chisholm v. Georgia, 2 Dall 419, 471; Penhallow v. Doane’s Administrators, 3 Dall 54, 93; McCullock v. Maryland, 4 Wheat 316, 404, 405; Yick Wo v. Hopkins ,118 U.S. 356, 370 (1886).

People are supreme, not the state. See: Waring v. the Mayor of Savannah, 60 Georgia at 93.

“As men whose intentions require no concealment, generally employ the words which most directly and aptly express the ideas they intent to convey; the enlightened patriots who framed our constitution and the people who adopted it must be understood to have employed the words in their natural sense, and to have intended what they have said.” See: Gibbons v. Ogden,  27 U.S. 1 No legislature can bargain away the public health or the public morals. The people themselves cannot do it. much less their servants. See: New Orleans Gas Co v. Louisiana Light Co ,115 U.S. 650 (1885).

The people of the State do not yield their sovereignty to the agencies which serve them.  The people, in delegating authority, do not give their public servants the right to decide what is good for the people to know and what is not good for them to know.  The people insist on remaining informed so that they may retain control over the instruments they have created. (Added Stats. 1953, c. 1588, p.3270, sec. 1.)

The people are the recognized source of all authority, state or municipal, and to this authority it must come at last, whether immediately or by circuitous route. Barnes v. District of Columbia, 91 U.S. 540, 545 [23: 440, 441]. p 234.

“the government is but an agency to the state,” — the state being the sovereign people.      State v. Chase, 175 Minn, 259, 220 N.W. 951, 953.

Sovereignty itself is, of course, not subject to law, for it is the author and source of law; but in our system, while sovereign powers are delegated to the agencies of government, sovereignty itself remains with the people, by whom and for whom all government exists and acts.  And the law is the definition and limitation of power.

“…The Congress cannot revoke the Sovereign power of the people to override their will as thus declared.”  Perry v. United States, 294 U.S. 330, 353 (1935). “The Doctrine of Sovereign Immunity is one of the Common-Law immunities and defenses that are available to the Sovereign…” Citizen of Minnesota. Will v. Michigan Dept. of State Police, (1988) 491 U.S. 58, 105 L.Ed. 2d. 45, 109 S.Ct. 2304. “The people of the state, as the successors of its former sovereign, are entitled to all the rights which formerly belonged to the king by his own prerogative.” Lansing v. Smith, (1829) 4 Wendell 9, (NY).

Strictly speaking, in our republican form of government, the absolute sovereignty of the nation is in the people of the nation: and the residuary sovereignty of each state, not granted to any of its public functionaries, is in the people of the state. See: 2 Dall. 471; Bouv. Law Diet. (1870). The theory of the American political system is that the ultimate sovereignty is in the people, from whom all legitimate authority springs, and the people collectively, acting through the medium of constitutions, create such governmental agencies, endow them with such powers, and subject them to such limitations as in their wisdom will best promote the common good. See: First Trust Co. v. Smith, 134 Neb.; 277 SW 762.

What is a constitution? It is the form of government, delineated by the mighty hand of the people, in which certain first principles of fundamental laws are established.” See: Vanhorne’s Lessee v. Dorrance , 2 U.S. 304(1795).

A constitution is designated as a supreme enactment, a fundamental act of legislation by the people of the state. A constitution is legislation direct from the people acting in their sovereign capacity, while a statute is legislation from their representatives, subject to limitations prescribed by the superior au&priry. See: Ellingham v. Dye, 178 Ind. 336; 99 NE 1; 231 U.S. 250; 58 L. Ed. 206; 34 S. Ct. 92; Sage v. New York, 154 NY 61; 47 NE 1096.

 


Government / Public Servants / Officers / Judges Not Immune from suit!

“The officers of the law, in the execution of process, are required to know the requirements of the law, and if they mistake them, whether through ignorance or design, and anyone is harmed by their error, they must respond in damages.Roger v. Marshall (United States use of Rogers v. Conklin), 1 Wall. (US) 644, 17 Led 714.

“It is a general rule that an officer, executive, administrative, quasi-judicial, ministerial, or otherwise, who acts outside the scope of his jurisdiction, and without authorization of law may thereby render himself amenable to personal liability in a civil suit.”  Cooper v. O`Conner, 69 App DC 100, 99 F (2d)

“Public officials are not immune from suit when they transcend their lawful authority by invading constitutional rights.      AFLCIO v. Woodard, 406 F 2d 137 t.

“Immunity fosters neglect and breeds irresponsibility while liability promotes care and caution, which caution and care is owed by the government to its people.”   (Civil Rights) Rabon vs Rowen Memorial Hospital, Inc. 269 N.S. 1, 13, 152 SE 1 d 485, 493.

Government Immunity – “In  Land  v.  Dollar, 338 US 731 (1947), the court noted, “that when the government entered into a commercial field of activity, it left immunity behind.”  Brady  v.  Roosevelt, 317 US 575 (1943);  FHA  v.  Burr, 309 US 242 (1940);  Kiefer  v.  RFC, 306 US 381 (1939).

The high Courts, through their citations of authority, have frequently declared,  that  “…where  any  state  proceeds  against  a  private individual in a judicial forum it is well settled that the state, county, municipality, etc. waives any immunity to counters, cross claims and complaints, by direct or collateral means regarding the matters involved.”  Luckenback v. The Thekla, 295 F 1020, 226 Us 328; Lyders v. Lund, 32 F2d 308;

“When  enforcing mere statutes, judges of all courts do not act judicially (and thus are not protected by “qualified” or “limited immunity,” – SEE: Owen v. City, 445 U.S. 662;  Bothke  v.  Terry, 713 F2d 1404)

– – “but merely act as an extension as an agent for the involved  agency  —  but  only  in  a  “ministerial”  and  not  a “discretionary capacity…”  Thompson  v.  Smith, 154 S.E. 579, 583; Keller v. P.E., 261 US 428; F.R.C. v. G.E., 281, U.S. 464.

Thompson v. Clark 2022 Holding: Larry Thompson’s showing that his criminal prosecution ended without a conviction satisfies the requirement to demonstrate a favorable termination of a criminal prosecution in a Fourth Amendment claim under Section 1983 for malicious prosecution; an affirmative indication of innocence is not needed.

Immunity for judges does not extend to acts which are clearly outside of their jurisdiction.  Bauers v. Heisel, C.A. N.J. 1966, 361 F.2d 581, Cert. Den. 87 S.Ct. 1367, 386 U.S. 1021, 18 L.Ed. 2d 457 (see also Muller v. Wachtel, D.C.N.Y. 1972, 345 F.Supp. 160;  Rhodes v. Houston, D.C. Nebr. 1962, 202 F.Supp. 624 affirmed 309 F.2d 959, Cert. den 83 St. 724, 372 U.S. 909, 9 L.Ed. 719, Cert. Den 83 S.Ct. 1282, 383 U.S. 971, 16 L.Ed. 2nd 311, Motion denied 285 F.Supp. 546).

“Judges not only can be sued over their official acts, but could be held liable for injunctive and declaratory relief and attorney’s fees.” Lezama v. Justice Court, A025829.

“The immunity of judges for acts within their judicial role is beyond cavil.” Pierson v. Ray, 386 U.S. 547 (1957). Keyword within their role, outside of that role they are not.

At least seven circuits have indicated affirmatively that there is no immunity bar to such relief, and in situations where in their judgment an injunction against a judicial officer is necessary to prevent irreparable injury to a petitioner’s constitutional rights, courts will grant that relief.  “There is no common law judicial immunity.” Pulliam v. Allen, 104S.Ct. 1970; cited in Lezama v. Justice Court, A025829.

Judges, members of city council, and police officers as well as other public officials, may utilize good faith defense of action for damages under 42-1983, but no public official has absolute immunity from suit under the 1871 civil rights statute.” (Samuel vs University of Pittsburg, 375 F.Supp. 1119, ‘see also, White vs Fleming 374 Supp. 267.)

“Ignorance of the law does not excuse misconduct in anyone, least of all in a sworn officer of the law.”   In re McCowan (1917), 177 C. 93, 170 P. 1100.

“All are presumed to know the law.”  San Francisco Gas Co. v. Brickwedel (1882), 62 C. 641; Dore v. Southern Pacific Co. (1912), 163 C. 182, 124 P. 817; People v. Flanagan (1924), 65 C.A. 268, 223 P. 1014; Lincoln v. Superior Court (1928), 95 C.A. 35, 271 P. 1107;  San Francisco Realty Co. v. Linnard (1929), 98 C.A. 33, 276 P. 368.

“It is one of the fundamental maxims of the common law that ignorance of the law excuses no one.”  Daniels v. Dean (1905), 2 C.A. 421, 84 P. 332.

424 F.2d 1021UNITED STATES v.Horton R. PRUDDEN,No. 28140. . United States Court of Appeals, Fifth Circuit.April 1970 Silence can only be equated with fraud where there is a legal or moral duty to speak or where an inquiry left unanswered would be intentionally misleading. U.S. v. Tweel, 550 F. 2d. 297, 299, 300 (1977) Silence can only be equated with fraud when there is a legal and moral duty to speak or when an inquiry left unanswered would be intentionally misleading. We cannot condone this shocking conduct… If that is the case we hope our message is clear. This sort of deception will not be tolerated and if this is routine it should be corrected immediately.
Morrison v. Coddington, 662 P. 2d. 155, 135 Ariz. 480(1983). Fraud and deceit may arise from silence where there is a duty to speak the truth, as well as from speaking an untruth. In regard to courts of inferior jurisdiction, “if the record does not show upon its face the facts necessary to give jurisdiction, they will be presumed not to have existed.” Norman v. Zieber, 3 Or at 202-03 US v Will, 449 US 200,216, 101 S Ct, 471, 66 LEd2nd 392, 406 (1980) Cohens V Virginia, 19 US (6 Wheat) 264, 404, 5LEd 257 (1821) “When a judge acts where he or she does not have jurisdiction to act, the judge is engaged in an act or acts of treason.”

42 U.S.C.A. Sec. 1983.” Trezevant v. City of Tampa (1984) 741 F.2d 336, hn. 5 Mattox v. U.S., 156 US 237,243. (1895) “We are bound to interpret the Constitution in the light of the law as it existed at the time it was adopted.” S. Carolina v. U.S., 199 U.S. 437, 448 (1905).

“The Constitution is a written instrument. As such, its meaning does not alter. That which it meant when it was adopted, it means now.” SHAPIRO vs. THOMSON, 394 U. S. 618 April 21, 1969 .

Marbury v. Madison, 5 US 137,(1803) “The Constitution of these United States is the supreme law of the land. Any law that is repugnant to the Constitution is null and void of law.”

Murdock v. Penn., 319 US 105, (1943) “No state shall convert a liberty into a privilege, license it, and attach a fee to it.”

Shuttlesworth v. Birmingham, 373 US 262, (1969) “If the state converts a liberty into a privilege, the citizen can engage in the right with impunity.”

Miranda v. Arizona, 384 U.S. 436, (1966) “Where rights secured by the Constitution are involved, there can be no rule making or legislation, which would abrogate them.”

Norton v. Shelby County, 118 U.S. 425, (1886) “An unconstitutional act is not law; it confers no rights; it imposes no duties; affords no protection; it creates no office; it is in legal contemplation, as inoperative as though it had never been passed.” Miller v. U.S., 230 F.2d. 486 ,489 “The claim and exercise of a Constitutional right cannot be converted into a crime.”

Brady v. U.S., 397 U.S. 742, 748,(1970) “Waivers of Constitutional Rights, not only must they be voluntary, they must be knowingly intelligent acts done with sufficient awareness.”

Cooper v. Aaron, 358 U.S. 1, 78 S.Ct. 1401 (1958). “No state legislator or executive or judicial officer can war against the Constitution without violating his undertaking to support it.” The constitutional theory is that we the people are the sovereigns, the state and federal officials only our agents.”

NO IMMUNITY “Sovereign immunity does not apply where (as here) government is a lawbreaker or jurisdiction is the issue.” Arthur v. Fry, 300 F.Supp. 622 “Knowing failure to disclose material information necessary to prevent statement from being misleading, or making representation despite knowledge that it has no reasonable basis in fact, are actionable as fraud under law.” Rubinstein v. Collins, 20 F.3d 160, 1990

“No man in this country is so high that he is above the law. No officer of the law may set that law at defiance with impunity. All the officers of the government, from the highest to the lowest, are creatures of the law and are bound to obey it. It is the only supreme power in our system of government, and every man who by accepting office participates in its functions is only the more strongly bound to submit to that supremacy, and to observe the limitations which it imposes upon the exercise of the authority which it gives. “Shall it be said… that the courts cannot give remedy when the citizen has been deprived of his property by force, his estate seized and converted to the use of the government without any lawful authority, without any process of law, and without any compensation, because the president has ordered it and his officers are in possession? If such be the law of this country, it sanctions a tyranny which has no existence in the monarchies of Europe, nor in any other government which has a just claim to well-regulated liberty and the protection of personal rights.” See Pierce v. United States (“The Floyd Acceptances”), 7 Wall. (74 U.S.) 666, 677 (“We have no officers in this government from the President down to the most subordinate agent, who does not hold office under the law, with prescribed duties and limited authority”); Cunningham v. Macon, 109 U.S. 446, 452, 456, 3 S.Ct. 292, 297 (“In these cases he is not sued as, or because he is, the officer of the government, but as an individual, and the court is not ousted of jurisdiction because he asserts authority as such officer. To make out his defense he must show that his authority was sufficient in law to protect him… It is no answer for the defendant to say I am an officer of the government and acted under its authority unless he shows the sufficiency of that authority”); and Poindexter v. Greenhow, 114 U.S. 270, 287, 5 S.Ct. 903, 912

WHEREAS, officials and even judges have questioned immunity (See, Owen vs. City of Independence, 100 S Ct. 1398; Maine vs. Thiboutot, 100 S. Ct. 2502; and Hafer vs. Melo, 502 U.S. 21; officials and judges are deemed to know the law and sworn to uphold the law; officials and judges cannot claim to act in good faith in willful deprivation of law, they certainly cannot plead ignorance of the law, even the Citizen cannot plead ignorance of the law, the courts have ruled there is no such thing as ignorance of the law, it is ludicrous for learned officials and judges to plead ignorance of the law therefore there is no immunity, judicial or otherwise, in matters of rights secured by the Constitution for the United States of America. See: Title 42 U.S.C. Sec. 1983. “When lawsuits are brought against federal officials, they must be brought against them in their “individual” capacity not their official capacity. When federal officials perpetrate constitutional torts, they do so ultra vires (beyond the powers) and lose the shield of immunity.” Williamson v. U.S. Department of Agriculture, 815 F.2d. 369, ACLU Foundation v. Barr, 952 F.2d. 457, 293 U.S. App. DC 101, (CA DC 1991). “Personal involvement in deprivation of constitutional rights is prerequisite to award of damages, but defendant may be personally involved in constitutional deprivation by direct participation, failure to remedy wrongs after learning about it, creation of a policy or custom under which unconstitutional practices occur or gross negligence in managing subordinates who cause violation.” (Gallegos v. Haggerty, N.D. of New York, 689 F. Supp. 93 (1988).

“The law requires proof of jurisdiction to appear on the record of the administrative agency and all administrative proceedings.” Hagans v. Lavine, 415 U. S. 533

“If you’ve relied on prior decisions of the Supreme Court you have a perfect defense for willfulness.” U.S. v. Bishop, 412 U.S. 346

Supreme Court Justice Brandeis spoke, in the case of Olmstead v. United States when he said: “Decency, security and liberty alike demand that government officials shall be subjected to the same rules of conduct that are commands to the citizen. In a government of laws, existence of the government will be imperiled if it fails to obsereve the laws scruplously. Our government is the potent omnipresent teacher. For good or ill, it teaches the whole people by it’s example. Crime is contagious. If the government becomes a law breaker, it breeds contempt for the law; it invites every man to become a law unto himself; it invites anarchy. To declare that in the administration of criminal laws the end justifies the means to declare that the government may commit crimes in order to secure the conviction of a private criminal—would bring terrible retribution. Against that pernicious doctrine this Court should resolutely set its face. …And so should every law enforcemnt student, practitioner, supervisor, and adminstrator ” State v. Manuel, North Carolina, Vol. 20, Page 121 (1838) The sovereignty has been transferred from one man to the collective body of the people – and he who before was a “subject of the king” is now “a citizen of the State”.

 

“The state citizen is immune from any and all government attacks and procedure, absent contract.” see, Dred Scott vs. Sanford, 60 U.S. (19 How.) 393 or as the Supreme Court has stated clearly, “…every man is independent of all laws, except those prescribed by nature. He is not bound by any institutions formed by his fellowmen without his consent.” CRUDEN vs. NEALE, 2 N.C. 338 2 S.E. 70 FRAUD BY GOVERNMENT McNally v. U.S., 483 U.S. 350, 371-372 (1987),

Quoting U.S. v. Holzer, 816 F.2d. 304, 307: “Fraud in its elementary common law sense of deceit – and this is one of the meanings that fraud bears in the statute, see United States v. Dial, 757 F.2d 163, 168 (7th Cir. 1985) – includes the deliberate concealment of material information in a setting of fiduciary obligation. A public official is a fiduciary toward the public, including, in the case of a judge, the litigants who appear before him, and if he deliberately conceals material information from them he is guilty of fraud. BURDEN OF PROOF ” 

The law creates a presumption, where the burden is on a party to prove a material fact peculiarly within his knowledge and he fails without excuse to testify, that his testimony, if introduced, would be adverse to his interests.” citingMeier v. CIR, 199 F 2d 392, 396 (8th Cir. 1952) quoting 20 Am Jur, Evidence, Sec 190, page 193  Notification of legal responsibility is “the first essential of due process of law”. See also: U.S. v. Tweel, 550 F.2d.297. “Silence can only be equated with fraud where there is a legal or moral duty to speak or when an inquiry left unanswered would be intentionally misleading.”  Clearfield Doctrine “Governments descend to the Level of a mere private corporation, and take on the characteristics of a mere private citizen…where private corporate commercial paper [Federal Reserve Notes] and securities [checks] is concerned. … For purposes of suit, such corporations and individuals are regarded as entities entirely separate from government.”

 


42 U.S. Code § 1983 – Civil action for deprivation of rights – read here

9.3 Section 1983 Claim Against Defendant in Individual Capacity Elements and Burden of Proof – click here to learn requirements

California Civil Code Section 52.1 – Interference by threat, intimidation or coercion with exercise or enjoyment of individual rights read here


 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Jurisdiction challenged to all, at any and all times

“Judge acted in the face of clearly valid statutes or case law expressly depriving him of (personal) jurisdiction would be liable.” Dykes v. Hosemann, 743 F.2d 1488 (1984).  “In such case the judge has lost his judicial function, has become a mere private person, and is liable as a trespasser for damages resulting from his unauthorized acts.”

“Where there is no jurisdiction there is no judge; the proceeding is as nothing. Such has been the law from the days of the Marshalsea, 10 Coke 68;
also Bradley v. Fisher, 13 Wall 335,351.” Manning v. Ketcham, 58 F.2d 948.

“A distinction must be here observed between excess of jurisdiction and the clear absence of all jurisdiction over the subject-matter any authority exercised is a usurped authority and for the exercise of such authority, when the want of jurisdiction is known to the judge, no excuse is permissible.” Bradley v.Fisher,13 Wall 335, 351, 352.

The laws of nature are the laws of God, whose authority can be superseded by no power on earth.  A legislature must not obstruct our obedience to him from whose punishments they cannot protect us.  All human constitutions which contradict his cannot protect us.  All human constitutions which contradict his (God’s) laws, we are in conscience bound to disobey1772, Robin v. Hardaway, 1 Jefferson 109. Supreme court cases from digging around Robin v. Hardaway 1790. Biblical Law at “Common Law” supersedes all laws, and “Christianity is custom, custom is Law.”

(I, Me, Myself am a “state”, with standing, standing in “original jurisdiction” know as the common law, Gods Law, a neutral traveling in itinerary, demanding all of my rights under God’s Natural Law, recorded in part in the Bible, which law is recognized in US Public Law 97-280 as “the word of God and all men are admonished to learn and apply it” so I demand anyone and everyone to notice God’s Laws, which are My Makers Laws and therefore My Laws!)

  • – Article 1 of the Bill of Rights – guarantees freedom of religion-
    Constitution for the United States of America ARTICLE IV, sect. 1, Full faith and credit among states. (Self-executing constitutional provisions) Section 1.  Full faith and Credit shall be given in each state to the public Acts, Records, and judicial Proceedings of every other state.

 

 

 

 

 

 

 

 

 

 

 

 

 

BUYING OR RECEIVING STOLEN GOODS

      NRS 205.275  Offense involving stolen property: Definition; penalty; restitution; prima facie evidence; determination of value of property.

      1.  Except as otherwise provided in NRS 501.3765 (see below), a person commits an offense involving stolen property if the person, for his or her own gain or to prevent the owner from again possessing the owner’s property, buys, receives, possesses or withholds property:

  •       (a) Knowing that it is stolen property; or
  •       (b) Under such circumstances as should have caused a reasonable person to know that it is stolen property.


      2.  A person who commits an offense involving stolen property in violation of subsection 1:

  •       (a) If the value of the property is less than $1,200, is guilty of a misdemeanor;
  •       (b) If the value of the property is $1,200 or more but less than $5,000, is guilty of a category D felony and shall be punished as provided in NRS 193.130;
  •       (c) If the value of the property is $5,000 or more but less than $25,000, is guilty of a category C felony and shall be punished as provided in NRS 193.130;
  •       (d) If the value of the property is $25,000 or more but less than $100,000 or if the property is a firearm, is guilty of a category B felony and shall be punished by imprisonment in the state prison for a minimum term of not less than 1 year and a maximum term of not more than 10 years, and by a fine of not more than $10,000; or
  •       (e) If the value of the property is $100,000 or more, is guilty of a category B felony and shall be punished by imprisonment in the state prison for a minimum term of not less than 1 year and a maximum term of not more than 20 years, and by a fine of not more than $15,000.

      4.  A person may be prosecuted and convicted pursuant to this section whether or not the principal is or has been prosecuted or convicted.

      5.  Possession by any person of three or more items of the same or a similar class or type of personal property on which a permanently affixed manufacturer’s serial number or manufacturer’s identification number has been removed, altered or defaced, is prima facie evidence that the person has violated this section.

      6.  For the purposes of this section, the value of the property involved shall be deemed to be the highest value attributable to the property by any reasonable standard.

      7.  As used in this section, “stolen property” means property that has been taken from its owner by larceny, robbery, burglary, embezzlement, theft or any other offense that is a crime against property, whether or not the person who committed the taking is or has been prosecuted or convicted for the offense.

      [1911 C&P § 383; A 1951, 29]—(NRS A 1967, 5021971, 9251979, 56114451989, 14341995, 13122313231997, 3441999, 4022011, 1662013, 10032019, 4433)

      NRS 205.290  Restoration of stolen property to owner.  All property obtained by larceny, robbery, burglary or embezzlement and found in the possession of the thief or embezzler thereof, or in the possession of any receiver or wrongful possessor of stolen property, shall be restored to the owner.

      [1911 C&P § 385; A 1935, 370; 1931 NCL § 10337]—(NRS A 1971, 926)

      NRS 205.295  Restoration of stolen property: Duties of officers.  The officer arresting any person charged as principal or accessory in any robbery or larceny shall use reasonable diligence to secure the property alleged to have been stolen, and after seizure shall be answerable therefor while it remains in the officer’s hands, and shall annex a schedule thereof to the return of the warrant. Whenever the district attorney shall require such property for use as evidence upon the examination or trial, such officer, upon the demand of the district attorney, shall deliver it to the district attorney and take a receipt therefor, after which such district attorney shall be answerable for the same.

      [1911 C&P § 386; RL § 6651; NCL § 10338]

      (read here) NRS 501.3765  Unlawful activities concerning traps, snares or similar devices owned by another person; criminal penalties.

      1.  Any person who intentionally steals, takes and carries away one or more traps, snares or similar devices owned by another person with an aggregate value of less than $1,200 is guilty of a gross misdemeanor.

      2.  Any person who buys, receives, possesses or withholds one or more traps, snares or similar devices owned by another person with an aggregate value of less than $1,200:

  •       (a) Knowing that the traps, snares or similar devices are stolen property; or
  •       (b) Under such circumstances as should have caused a reasonable person to know that the traps, snares or similar devices are stolen property,  is guilty of a gross misdemeanor.

      (Added to NRS by 2013, 1001; A 2019, 4484)

Cited https://www.leg.state.nv.us/nrs/nrs-205.html#NRS205Sec290

 

 

 

WE FEEL THE LAWS BELOW ARE UNCONSTITUIONAL BARRING COLLECTION OF RENT THAT IS OVER ONE YEAR PAST DUE, YET THEY ALLOWED TENANTS TO NOT PAY FOR WELL OVER ONE YEAR IS A CATCH 22
Section 242 of Title 18 makes it a crime for a person acting under color of any law to willfully deprive a person of a right or privilege protected by the Constitution or laws of the United States.

but you can always sue after in Civil court keep reading below

AB 832 addresses three time periods with different rules for each

March 1, 2020 to August 31, 2020 – Protected Time Period

  1.  If a tenant owes money for this period only, they are protected from eviction for 2 reasons:
  2. The statute of limitations for unpaid rent is one year.
  3. AB 832 re-names “unpaid rent” for this period as “civil debt” – which is not grounds for eviction.
  4. Landlords cannot sue for unpaid rent “civil debt” until November 2021.
  5. Before filing an eviction, Landlords are required to have applied for Rent Relief and been rejected (or unanswered for 20 days). 
  6. Typically the only reason a landlord will not be contacted within 20 days is when the tenant has not responded with their proof of income.
  7. Landlords and tenants can apply for Rent Relief through Housing is key.  They can be contacted at 1-833-830-2122 or via housingiskey.com.
  8. Landlords can file a Civil Lawsuit for the back rent (now considered “Civil debt”). Civil Lawsuits require attorney representation and are expensive.
  9. The most cost effective remedy to collect unpaid rent from March 1 – August 31 2020 not covered by Rent Relief is to go to Small Claims Court and get a money judgement.
  10. Money judgments last for 10 years and can be renewed 10 more years.
  11. Small Claims court has lifted restrictions on the number of suits one can file and the amount one can sue for with regard to unpaid rent/civil judgments.
  12. Best practice is to go after a money judgement while the tenant is still in place.  It is harder to locate and serve a tenant once they have vacated.

September 1, 2020 to September 30, 2021 – The Transition Period

  1. If a tenant has provided a COVID Declaration stating they have been negatively impacted financially by COVID:
  2. 25% of rent is due from September 1, 2020 to September 30, 2021.  It can be paid in any increment and at anytime through September 30, 2021.
  3. Landlord must have served a proper 15-Day Notice to Pay Rent OR Quit (and related COVID impact forms) BEFORE filing an eviction for the 25% due during this period.
  4. 75% of the rent in this time period is now “Civil Debt” – not an evictable default.
  5. The same rules I cited in numbers #2-5 of the Protected Period apply to the 75% of rent which is now “Civil Debt”.  The only remedy is to collect the money through the Rent Relief program or through a Money Judgement.

October 1, 2021 to March 31, 2022 – The COVID-19 Recovery Period Rental Debt.

  1. 100% of rent is due October 1, 2021 on.
  2. Landlords may evict Tenants for unpaid rent from October 1, 2021 on. 
  3. Landlords must use the NEW 3-Day Pay or Quit if full October rent is not paid.The new 3-Day Notice to Pay or Quit must include required COVID clauses.
  4.  Do not include any other rent due other than October 2021.
  5. You may move forward with an eviction 3 days (not counting holidays and weekends) after providing formal notice.  

Resource Links:

cited https://www.tiner.com/the-end-of-the-eviction-ban#:~:text=If%20a%20tenant%20owes%20money,is%20not%20grounds%20for%20eviction.

 

 

Is there a time limit on collecting rent payments?

 

Answer: California Code of Civil Procedure Section 1161(2) limits the amount of past-due rent that can be collected with to a three-day notice to rent that was unpaid no more than one year before the notice. Since the total amount in the notice included unpaid rent from two years earlier, the entire notice is invalid and cannot be used as the basis for a subsequent unlawful detainer action seeking your eviction. The three-day notice would have to be served on you again, with the correct amount.

You are not, however, free from debt for the prior unpaid increase. Assuming you had a written rental agreement, and were properly notified of the increase, your landlord could deduct the unpaid amount from your security deposit and require you to restore that amount.

Alternatively, your landlord could file a claim against you in Small Claims Court for the $250. These other collection options are available to the landlord because the time limit to pursue a legal action for breach of a written agreement is four years.

The Consequences of Breaking a Lease Agreement

When you sign a lease agreement, you are contracting to pay rent for the whole term of the lease, usually one year. If you leave the apartment without the landlord’s permission or break the lease without a legal reason to do so, you are still on the hook for the rent. This obligation lasts until the landlord can re-rent the place to a qualified tenant or the term of the lease expires. Once you have missed a rent payment, the landlord can immediately pursue debt collection from you.

Impact of a Monetary Judgment

If the small claims court finds in the landlord’s favor, the landlord will be able to get a money judgment against you. The amount will include total rent owed with charges and interest, plus the cost to repair any damages you caused to the rental property. The landlord must file the claim with the court before the deadline expires. This is known as the statute of limitations, and it represents the time frame for when legal action is allowed after the event of non-payment. Different limitations apply to the various rental contracts, including oral and written rental agreements.

Statute of Limitations for Making a Claim

Your landlord can file a claim against you even if you had an oral rental agreement. The statute of limitations for pursuing debt from an oral agreement is two years, according to the California Code of Civil Procedure § 339. If more than two years have passed since you broke the oral rental agreement, your landlord cannot file a debt collection claim against you. The two-year clock begins the day after you were first late with the rent. The statute of limitations is longer for debt collection stemming from breaking a written lease agreement. Now, the landlord has four years within which he can file a debt collection claim against you. Note that certain legally recognized circumstances stop the statute of limitations time frame, known as tolling. Tolling stops the clock for events such as incarceration, military deployment, tenant death or bankruptcy.

Statute of Limitations for Collecting a Judgment

There’s another limitation period to consider and that’s how long the landlord has to enforce the monetary judgment against you. This will depend on state law but in most places, the landlord has between five and seven years to collect. California judgments last for 10 years; however, if the landlord hasn’t collected his cash in that time, he can renew the judgment for another decade. Interest will accrue on the judgment during this time. The best option is to pay what you owe as soon as possible.

 

 CAN I BE EVICTED IF THE LANDLORD WANTS TO REMODEL, MOVE INTO MY UNIT, SELL MY BUILDING, OR TEAR DOWN THE BUILDING?

It depends. State law allows landlords to evict a tenant for any of the following reasons:

 

  • When the owner or owner’s family member plans to move in
  • When the owner plans to take the unit off the rental market
  • When the owner plans to substantially rehabilitate the unit for health and safety reasons (evicting a tenant just to remodel a unit is not allowed)

Have a family member you trust move in for 3 months or remodel the heck out of your place it will be best to get higher rent with a freshly remodeled place and a delinquent tenant gone! 

The federal eviction moratorium from the Centers for Disease Control (CDC) prohibits tenants from being evicted for any reason that is not the fault of the tenant, but it does not apply to everyone, and it expires on October 3, 2021. To see if the federal moratorium applies to you, call the Law Foundation at (408) 280-2424 or our web-based intake at www.lawfoundation.org/housing.

 

 

 

PROPERTY RIGHTS, HOUSING, AND THE AMERICAN CONSTITUTION

PROPERTY RIGHTS, HOUSING, AND THE
AMERICAN CONSTITUTION: THE SOCIAL
BENEFITS OF PROPERTY RIGHTS PROTECTION,
GOVERNMENT INTERVENTIONS, AND THE
EUROPEAN COURT ON HUMAN RIGHTS’ HUTTENCZAPSKA DECISION*
Edward H. Ziegler** and Jan G. Laitos
ABSTRACT
Nations around the world utilize government interventions to promote
the availability and affordability of housing. This Article focuses on
various types of government regulatory interventions, such as rent controls,
building dedications and exactions, and density and growth controls on
housing. These interventions are common in the United States and in other
countries and may contribute to inefficient resource allocation and poor
housing outcomes. This Article examines whether these types of
government interventions may require, in particular cases in the United
States, judicially required compensatory damages for affected property
owners. The social costs of these forms of government intervention are
examined from the perspective of the benefits accruing from a regime of
property rights protection. This Article further explains that there is some
existing precedent under international human rights norms, as illustrated by
the Hutten-Czapska v. Polandi decision, for the standards used in the
United States for protecting the property rights of owners and developers of
housing from excessive and unwise government regulation.
I. INTRODUCTION
The U.S. Constitution provides protection for private property owners
when the government intervenes through official regulations restricting an
owner’s rights in land or housing.2 When the government acts through
regulatory intervention that restricts the private use of land and housing, the
property rights of affected owners are protected under the Fourteenth
Amendment and the Takings Clause of the Fifth Amendment of the U.S.
Constitution. 3 These provisions apply regardless of the personal status or
income of the affected private owner.
Government intervention by police power regulation of land and
housing in the United States is constrained by judicial interpretation of the
constitutional protection afforded private owners of property. The Fifth
Amendment of the U.S. Constitution provides that “[n]o person shall be …
deprived of life, liberty or property without due process of law; nor shall
private property be taken for public use, without just compensation.”5 The
next section of this Article discusses the legal protection afforded private
housing and landowners by the U.S. Constitution’s Takings Clause and the
court decisions interpreting this provision.
To a significant degree, the constitutional protection of property rights
for owners of real property in the United States is reflected in the European
Court on Human Rights’ Hutten-Czapska decision, which involved rent
controls imposed on apartment housing in Poland.6 The European Court
ruled that rent controls violated the right to property in the European
Convention on Human Rights. Over time, rent controls denied a housing
owner any economically viable use of his property, which amounted to a
disproportionate and impermissible benefit extraction of the owner’s
interest in the property.7 The rationale of the Court’s decision closely
parallels the U.S. Supreme Court’s analysis of the protection of private
property under the U.S. Constitution.
The constitutional protection of private property rights in the United
States is thought to promote economic prosperity and efficiency, as well as
basic fairness and individual liberty.9 In this sense, private property rights
are institutionally considered important human and civil rights that operate
to protect a disfavored minority from favoritism and unfairness caused by
majority legislative action.10 In the United States, while a right to housing
is not codified, there is no shortage of quality housing space available at
2011] market prices. Also, on a comparative and absolute basis, the United States
provides substantial public and private financial support for housing the
very poor and homeless.” The U.S. housing market is highly influential
across the globe,12 likely due, at least in part, to the constitutional protection
of the property rights of private owners and renters of housing.
II. TAKING PRIVATE PROPERTY AND THE RIGHT TO COMPENSATION
The U.S. Constitution’s Takings Clause requires that an owner be
paid just compensation when the government takes private property for a
public use.13 Compensation must be paid to an owner when the
government directly takes title to private property to establish a new public
use, like a public park.14 However, courts have also ruled that a taking
occurs, and compensation must be paid, when the government interferes in
certain ways with an owner’s possessory interests, while acting in an
enterprise capacity or by a police power regulation of private property
rights. These situations are known as cases of inverse condemnation, in
which there is no direct taking of title. The government often contests in
court whether compensation is required.16 These cases are controlled by
the general jurisprudential taking principle that police power regulation of
private property may not be used simply as a mechanism for extracting
public benefits from private landowners that, in all fairness and justice,
should be paid for by the public as a whole.’ 7
Courts have recognized that land value consists not only in title
ownership and possession, but also in the rights of an owner to use, enjoy
and develop the land. Since all property is subject to the exercise of
government regulation in protection of the public welfare, government
regulation of land will not be held a taking simply because it partially
reduces or destroys the use or development value of the land.19 Justice
Holmes argued that “government hardly could go on if to some extent
values incident to property could not be diminished without paying for
every change in the general law.”20 However, Holmes also recognized, in
view of the policies underlying the due process and takings provisions in
the U.S. constitutional system, that “if regulation goes too far it will be
recognized as a taking.”21 The police power “must have its limits” and
“when it reaches a certain magnitude, in most if not all cases, there must be
an exercise of eminent domain and compensation to sustain the act.”22
The Takings Clause in the U.S. Constitution plays a significant role in
shaping the limits and forms of government regulation that are sought for
housing or new housing development. 23 All three types of the
constitutional taking claims discussed below – physical invasion analysis,
economically viable use analysis, and partial benefit-extraction analysis –
significantly restrict the methods of government intervention that ma
address perceived social problems related to housing in the United States.
A. Physical Invasion Takings Analysis
A regulation adopted by a governing authority that allows someone to
enter another person’s property will likely be considered a physical
invasion taking of the private right to exclusive possession for which
compensation must be paid.25 The U.S. Supreme Court has adopted a per
se confiscation taking rule that applies when government interferes, through
regulation, with an owner’s possessory interest in excluding others from his
property.26 Under this analysis, a taking occurs when regulation results in a
permanent physical invasion of private property or an interference with an
owner’s right to exclude others from his 2property, which disturbs his
reasonable investment-backed expectations. For example, in Loretto v.
Teleprompter Manhattan CATV Corp, the Supreme Court held that a New
York law requiring a landlord to permit installation of cable television on
his property constituted a taking. Similarly, a taking would be found if
the government was to require owners of private apartments to provide free
housing for the poor or homeless.29 In such cases, the government would
have to compensate the private owner for the fair market rental value for the
possession of the apartments. However, extensive government regulation
of all aspects of the landlord-tenant relationshi is generally allowed within
the constitutional parameters discussed below.
B. Economically Viable Use Analysis
Zoning, urban planning, public design controls, and other forms of
government intervention by regulation will not be held confiscatory simply
because regulation prohibits the owner from making the most profitable use
of the property or results in a substantial diminution in market value of the
land.31 Generally, a regulation will be held confiscatory only where it
deprives an owner of every use to which the property is reasonably
adapted.32 Recently, the U.S. Supreme Court and most state courts have
adopted the economically viable use test.” Under this test, a regulation
generally will not be held confiscatory unless it denies an owner all
reasonably beneficial and economically viable use of the land considered as
a whole.34 A regulation may be held confiscatory even if an owner is
afforded a beneficial or economically viable use of the property under either
of the alternative takings tests.
Applying the economically viable use analysis, the purchase price
paid by a present owner and the decline in market value as a result of
regulation are unlikely to be determinative in whether a taking has occurred
and compensation must be paid.36 However, the testimony of an appraiser
or real estate expert regarding the market value of land developed for
allowed uses may constitute an important part of a landowner’s confiscation
claim.37 Market value and demand for permitted land uses, taken together,
may demonstrate that such potential uses are not reasonably beneficial and
economically viable uses for the land in question, rendering the regulation
confiscatory. For example, where a landowner’s proof demonstrated that,
upon completion of a residence on a lot, the market value of the house and
lot would be less than the cost of constructing the residence, the regulation
was confiscatory because the lot was held to be unsuitable and valueless for
residential use. Similarly, denial of a variance to operate a gasoline
station in an area zoned for retail business was confiscatory based on a
finding that the area was so undeveloped, residentially and otherwise, that
there was no market value or demand for commercial use of the land.40
Government interventions that regulate housing are generally
permissible if they leave the owner with an economically viable use of the
land.4 ‘ This general rule is true for most ordinary government planning
restrictions on building development, such as construction standards related
to building bulk and height, lot size, setbacks, open space, fences, building
design, landscaping, and parking.42 Similarly, regarding rent control, the
U.S. Supreme Court has upheld the general constitutionality of rent
restrictions in several court cases dating back to World War II.43 In those
cases, the Court focused on the increased war-time power of the
government and discussed the takings issue and property rights related to
housing. The Court ruled that setting maximum rent prices did not
constitute a taking unless the restrictions went so far as to be confiscatory.”
The Court noted that although rent control “may reduce the value of the
property regulated,” it was not unconstitutional. 4 5
Today, government rent control regulation would likely be considered
a taking for which compensation must be paid only if the regulation, as
applied to an owner’s property, did not provide the private owner with an
“economically viable return” on the land and buildings as an operational
investment.46 More broadly, a confiscation claim to a government
restriction respecting rent control, tenant eviction protection, or
apartmentto-ownership conversion could be successfully asserted where the
regulation, as applied, merely denies an owner a fair and reasonable return
on his investment. 47 Court decisions have utilized different takings
analyses in evaluating whether various types of rent control and tenant
protection provisions are confiscatory.48 Typically, the key question in
these cases is what constitutes a fair return on investment. While a
variety of fair return formulas may be permissible, including a net
operating income ratio formula,51 courts have ruled that landlords are not
constitutionally entitled to market value rates of return on their
investment.52
In determining a fair return, some courts have held that inflation must
be taken into account,5 3 and every dollar for capital improvement the
landlord puts into the property constitutes an investment for which a fair
and reasonable return must be allowed. 54 In Richardson v. City & County
of Honolulu,5 5 a federal District Court held a local rent control ordinance
confiscatory based on a straightforward fair return formula.56 The Court
ruled that by indiscriminately basing maximum rent allowed on the initial
rent paid under a lease and by neglecting to provide a mechanism for
adjustment or review, the law operated to deprive owners of a just and
reasonable rate of return.5 7 The Court held that tying rent increases to
general increases in prices and incomes would not result in a fair return on
investment because there was substantial evidence that the base rate of
initial rent paid, which served as a basis for this calculation, would often be
far below fair market rental value.58
The New York Court of Appeals applied a similar economically
viable use analysis in Seawall Associates v. City of New York.59 The Court
held a local ordinance enacted to preserve and maintain low rent singleroom
occupancy (SRO) housing within the City of New York
confiscatory. 6 0 The law, among other requirements, prohibited property
owners from altering, demolishing, or converting their buildings to any
other use; compelled owners to restore any uninhabitable unit to habitable
condition; and required owners to keep all their units occupied as SRO
housing. The court analyzed the impact of the law on property owners’
basic rights “to possess, use, and dispose” of their buildings and found that
the law substantially impaired each of these rights.62 The court further
noted that the mandatory rental provisions, together with the above
requirements, denied owners of SRO buildings any right to use their
properties and deprived them of an economically viable use of their
properties.63 The court found that the ordinance operatively ignored the
legitimate investment-backed expectations of SRO property owners and
failed to establish a formula to provide owners a fair return on their
investment.
C. Partial Benefit-Extraction Taking Analysis
As the U.S. Supreme Court has often stated, the Fifth Amendment’s
just compensation provision 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.”6 5 As reflected in recent U.S.
Supreme Court decisions, the partial taking analysis explicitly recognizes
that a regulation may affect an unconstitutional taking of private property
without amounting to a categorical or per se taking, either by denying an
owner all economically viable use or by resulting in the physical occupation
of the owner’s land. 66
Under the benefit-extraction taking analysis, confiscation occurs
when the burden imposed on a private owner, in view of the nature of the
government action involved, is one that the public fairly and justly should
pay for as a whole through taxing and spending.67 Justice and fairness
require that economic injuries caused by regulation be compensated by the
government rather than remain disproportionately concentrated on regulated
and burdened private owners.68 Courts in these cases find that the
regulation in question is designed primarily to secure the acquisition of
public resources and extract from the affected owners a public benefit that
is not substantially attributable to some problem related to the owners’
conduct.69 This takings analysis is reflected in a very long line of state
court decisions and in a number of recent U.S. Supreme Court decisions
dealing with “development exactions.” 70 The benefit-extraction taking
principle at work here is that development exactions must be reasonably
related in nature to some problem caused by development and reasonably
related in amount to the magnitude of that problem.71
For example, a regulatory condition imposed on the development of
food markets mandating that they give free food to persons with an official
“low income” card would be a taking requiring compensation. The stores
would simply be convenient targets of a regulation providing free food to
persons with a low income, though the stores were not a significant cause of
the poverty that the regulation addresses. Under this analysis, the public
benefit secured by such a regulation – feeding the poor – is considered
constitutionally appropriate, but that burden must be publicly shared
through taxing and spending powers. 72 This benefit-extraction taking
analysis would also apply to regulations imposed on private owners to
house the poor or shelter the homeless.73
This taking analysis has been applied in cases involving impact fees
for public housing and other similar regulatory schemes. 74 For example,
the California Court of Appeals recently ruled in favor of the housing
developer when it struck down an affordable housing impact fee imposed
on a new housing development.75 The court held that the increase in the
affordable housing fee was not “reasonably justified” under existing law
because there was no reasonable relationship between the amount of
increase in the fee and some demonstrated “deleterious public impact of
development.”7 The court relied on the lack of evidence of any
relationship between the extent of the city’s affordable housing need and
the development of housing units by the developer.7 7 Other decisions have
held regulatory conditions on housing confiscatory under benefit-extraction
taking analysis. 78 It has also been applied to public rent control schemes
where the burden is arbitrarily placed on a disfavored group of tenants.
III. THE HU7TEN-CZAPSKA CASE: PROPERTY, HUMAN RIGHTS, AND
CONFISCATION CLAIMS
In 2006, the European Court of Human Rights (ECHR) heard a
housing case involving the government’s imposition of long-term rent
controls on private owners of housing in Poland.s The suit originated in
the Polish courts by Maria Hutten-Czapska, a French national with property
in Poland. Restrictive landlord provisions had been passed in response to
the housing shortage in Poland – the most severe shortage in Eastern
Europe after World War II.81 The laws imposed a number of rent
restrictions on landlords, including a low ceiling on rent levels such that
landlords could not recover maintenance costs, much less make a profit and
a return on investment.82 In 2001, the Polish Constitutional Court (PCC)
held the laws unconstitutional for placing a disproportionate and excessive
burden on landlords. In February 2005, the PCC again found the
legislation unconstitutional because it made it impossible for landlords to
receive rent reasonably commensurate with the costs of property
maintenance. The PCC directed Poland to find a way to provide HuttenCzapska
and the other 100,000 similarly situated landlords a reasonable
level of rent or to provide them with a way to mitigate the consequences of
the state-controlled rent increases.8 5
The Polish government requested referral of the case to the Grand
Chamber of the ECHR. The Grand Chamber relied on the European
Convention on Human Rights 86 and the Charter of Fundamental Rights of
the European Union, which states that the right to property is a fundamental
87
right. The Grand Chamber agreed that Poland, which inherited an
abominable housing situation from the communist regime, was in the
difficult position of balancing conflicting interests of landlords and
tenants. However, the Polish government failed to distribute the social
and financial burden fairly. The ECHR essentially applied the benefitextraction
confiscation analysis, as used by U.S. courts, and found that
Poland had placed the burden on one particular social group.89 By failing
to establish a “reasonable relation of proportionality” between the
legitimate goal of the Polish government and the restrictions utilized to
achieve that goal, the ECHR ruled that the government violated Article 1 of
Protocol No. 1 of the Convention. 90
Had this case arisen in the United States, the outcome would have
likely been the same. Under both the economically viable use and the
benefit-extraction analyses utilized in U.S. court decisions, the long-term
rent controls in Hutten-Czapska would have been held an unconstitutional
taking of the landlord’s property.9 1 Future ECHR decisions may continue
to reflect, at least in part, the analysis utilized in U.S. court decisions
interpreting the taking of private property rights by government regulatory
interventions. The three lines of constitutional regulatory takings analysis
utilized by U.S. courts may be consulted for possible lines of argument and
analysis in future property rights cases arising under the Charter of
Fundamental Rights of the European Union and the European Convention
on Human Rights. 92
IV. OWNERSHIP OF PRIVATE PROPERTY, OVERREGULATION, AND JUDICIAL
RESTRAINTS
The Hutten-Czapscka decision is a classic example of how a wellmeaning
housing rule can create negative consequences such that private
entrepreneurial choices become frustrated and defeated. In Poland, longterm
rent controls designed to address an acute housing shortage made it
impossible for owners of rental housing to enjoy any economic gains or
viable ownership benefits. The only solution was first a judicial override of
the rent control law by the Polish courts then by the ECHR Grand Chamber.
The United States has also experienced this sequence of good-faith
government interference with private property markets resulting in
economic marketplace chaos requiring judicial intervention to restore
fairness and economic growth.93 Such a pattern is not uncommon when a
government decides to assert its authority over decisions involving rights to
privately owned property.
Conversely, several positive market consequences result when private
parties contract for the use and development of property free from
unreasonable government interference. Property ownership permits private
economic ordering and helps secure the investment capital necessary for
financial growth. Moreover, property provides a benefit to non-owners,
who are better off because an owner decided to develop, transfer, or make
active use of the property. When the private exercise of a property right
benefits third parties, like parties other than the owner or a party to whom
the property is conveyed, the property is generating a positive externality.
When the private property is actively used and not passively held, it
becomes a “public good.” A public good is an economist’s term for a
resource whose use by a private party benefits not only the owner but also
third parties.95
Private property, when transformed by the owner into a valuable
commodity, becomes a public good because the owner’s behavior has a
positive effect on parties that are external to both the owner and the party to
whom the property is transferred. For example, property development for
residential purposes has repercussions beyond the owner when the use
makes the property economically productive. For instance, if an owner
subdivides land and builds homes, second parties directly benefit from this
use. These include workers employed during the construction of the homes,
agents who sell the homes, and future homeowners. Third parties benefit
indirectly, like government agencies whose property tax base is expanded.
Employers of those who live in the new homes benefit because otherwise
they might have had to provide housing for their employees. Also, the
overall local economy benefits from the purchasing power of new
consumers now living in the area.
Despite unregulated private property creating a public good,
especially when that property becomes housing, the government may
choose to regulate the uses of that property and restrict the choices of the
owners. Controls over land use, housing, and property have been common
in Western civilization ever since the Roman Empire introduced replations
for setback lines for buildings and trees in as early as 450 B.C. In the
United States, although land use regulations existed since the colonial era, it
wasn’t until the twentieth century that the demand for regulations of real
estate development became significant.97 First, as the United States moved
toward a more urban society, “city governments sought to gain control over
the location of industry, commerce, and housing” through zoning. 98New
York City, for example, adopted its first comprehensive zoning ordinance
in 1916. B the 1930s, most urban areas had adopted some kind of
zoning law. 0 After World War II, increasing suburbanization in the
United States led to municipal regulations, controlling the size and type of
such housing developments.’ 0 Beginning in the 1970s, once again
growing urban population necessitated regional planning and even more
restrictive housing and property policies.102
One such restrictive policy is exclusionary zoning. “Exclusionary
zoning is using zoning to further the parochial interests of a particular
municipality, at the expense of surrounding regions.” 0 3 It takes various
forms, such as setting a minimum lot or house size or prohibiting
multifamily housing or mobile homes.104 This type of zoning “fences out”
low-income housing and decreases the overall supply of housing. 05
Exclusionary zoning thus advances economic, social, and often racial
segregation. It takes advantage of regional development to create and
maintain homogenous communities and building affluent municipalities. 107
The practice certainly goes against the idea that municipal zoning aims to
advance general welfare.
Such government interference with private housing decisions
produces several negative consequences.los Generally, excessive regulation
smothers the creativity of marketplace actors whose decisions fuel
economic growth.109 Additionally, regulation fails to enhance personal
liberty since the government’s exercise of police power inhibits it. 110
Government regulation limits a person’s ability to make fundamental
choices about how best to deploy resources productively, and it entails high
administrative costs.I 1
Three other negative consequences that flow from unchecked
regulation have a particular impact on third parties. The first occurs when
the government, not properly monitored through meaningful judicial
review, disproportionately burdens one or a very small number of
individuals, while not subjecting similarly situated persons to equivalent
burdens.11 2 If this kind of regulation paralyzes the courts, third parties
benefit by not having to share the cost of regulation, and they become free
riders.113
Another third party consequence is the creation of what Professor
Frank Michelman calls “demoralization costs.”1 1 4 These costs “accrue to
[property owners] and their sympathizers specifically from the realization
that [no judicial relief] is offered” when government over-regulates.115
These costs are the effect that excessive property regulation has on other
property owners who witness but do not directly experience the regulatory
impact. These third parties may be less inclined to develop their
property when they see a neighbor saddled with unrelieved, burdensome
regulation. Furthermore, unrestricted regulation can change the preexisting
distribution of wealth by forcing or authorizing exchanges of property
between property owners without compensating them for their loss.
Such forced exchanges occur with rent-control laws that burden landlords
and benefit tenants and with certain environmental laws that deprive
propertvr owners of environmentally sensitive land for the benefit of the
public.
Another harm resulting from government interference with private
property autonomy is that the disadvantaged often bear the brunt of any
attendant harm. 120 Typically, when regulation creates costs or conditions of
scarcity, the poor suffer the most.121 These distributional consequences are
worsened because the poor are the least able to alter legislative decisions
that produce over-regulation.122 Moreover, legislators enacting police
power regulation are often influenced by interest-group politics. The
economically disadvantaged have neither the funds nor the expertise to
access lobbyists who have the most influence over legislators. Therefore,
the interests of the disadvantaged are not frequently reflected in police
power legislation. 123
For private property to have the potential to maximize the welfare of
not only owners and those with whom they engage in transactions regarding
the property but also third parties who benefit from property’s public goods
component, courts should protect property uses from over-zealous exercises
of the police power. Courts could then preserve external benefits for third
parties that result from reducing regulation of private property. The
judiciary can protect both individual choices and the public good of
property use by applying the legal doctrines established in constitutions that
allow courts to halt excessive regulations. In the United States, the U.S.
Constitution’s Takings Clause provides this protection.124
V. SOCIAL AND POLICY BENEFITS OF THE TAKINGS CLAUSE
The Takings Clause of the U.S. Constitution is a limit on the ability of
government actions to take or otherwise unreasonably burden private rights
in land, property, or housing. 125 It serves an important check on
government decisions that interfere with private choices about property
interests. There are many social and policy benefits that follow from this
kind of constitutional limit on governmental meddling in the economic
market.
A. The Takings Clause prevents government from denying owners any use
of their property
When the government denies all economically beneficial or
productive use of property, it affects a per se taking.126 Some courts have
even decided that a per se taking can occur when the government
substantiallI deprives a property owner of the use and enjoyment of
property. A compensable temporary taking occurs when an owner is
prevented from doing anything with his or her property for a limited period
of time. 28 In Lucas v. South Carolina Coastal Council, the Supreme Court
clarified why the Takings Clause is proper by invoking Lockean-liberal
assumptions about private property: “[O]ur prior takings cases evince an
abiding concern for the productive use of, and economic investment in,
land.”
B. The Takings Clause promotes economic prosperity
One of the assumptions behind the Takings Clause is that if private
property rights are secure, ownership in real property is protected. The free
market is allowed to operate without extensive government interference,
and individuals in these communities are economically better off.
Prosperity follows. The Takings Clause is designed to curb aggressive
government decisions that are inconsistent with these three premises.
Moreover, if legislatures are able to change private property into
public property, there has been a transfer of resources from private hands to
the general community. Commentators have warned that when private
owners have too many of their assets and earnings redistributed by the force
of law, they will become discouraged and may stop developing their
property.130 Property owners incur these demoralization costs when the law
interferes with their expectations of keeping and controlling the properties
in which they have invested. One important purpose of the Constitution’s
Takings Clause is to prevent this.
C. The Takings Clause encourages efficient decision making
The mere presence of the Takings Clause in the U.S. Constitution
deters excessive or unreasonable government action because government
actors are aware that private parties may challenge such action in court. For
example, exclusionary zoning is a public and collective decision that stands
in stark contrast to a system of private property decision-making, in which
individual owners make choices about how to use their property. The
Takings Clause might permit owners to make choices about efficient land
use instead of a more distant and collective government choice.131
D. The Takings Clause requires the government to act fairly
One of the central tenets of the Takings Clause is that government
should not extract a public benefit from private land and property
owners.132 Indeed, in Armstrong v. United States,133 a seminal case in
1960, the Supreme Court explained that the principal purpose of the
Takings Clause was “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.” 34 Other courts have since decided that the essence
of a takings claim, particularly a partial takings claim, is the extent to which
a police power regulation has singled out one or a few property owners to
bear burdens disproportionately, while the community shares the
benefits.’ 35 When property owners have not contributed more to a problem,
then it is a taking if a regulation makes them remedy the problem. Even
though the police power regulation may be well-intentioned, the law cannot
In a free market system, each person’s welfare is maximized if
autonomous decision-making is allowed. When the government prevents
such autonomy by making public and collective choices (such as a zoning
or rent control law), the market is frustrated, and individual benefits may be
frustrated. The Takings Clause unleashes individual liberty by limiting
government actions that interfere with individualized choice about land,
property, and ownership rights. Such liberty of choice in turn yields
economic prosperity.’ 3 8
VI. CONCLUSION
Although government housing policies are often said to be designed
to benefit the general welfare, sometimes those same policies can result in
damaging burdens to private property owners, including prospective buyers
as consumers of housing. Such burdens, in turn, not only harm these
existing and prospective housing owners, but also they can produce social
costs that adversely affect the public as a whole. A higher law, such as the
U.S. Constitution or the European Convention on Human Rights, can
sometimes utilize constitutional norms to override the government policies
that create these types of negative consequences for property owners and
the public. Landlords and developers are not the only beneficiaries of the
application of this higher law. The market for higher quality and affordable
housing is often assisted when excessive or unreasonable restrictions on
private housing decisions are removed

* 02010 Edward Ziegler and Jan Laitos
** Edward H. Ziegler is Robert B. Yegge Memorial Research Chair and Professor of
Law at the University of Denver – Sturm College of Law. The author wishes to thank Ms.
Katy Michaelis for her assistance in the preparation and editing of this article.
*** Jan G. Laitos is John A. Carver Jr. Professor of Law at the University of Denver –
Sturm College of Law. Professor Laitos wishes to acknowledge the valuable assistance
provided by Elizabeth McDermott in the preparation and development of this article.
1. Hutten-Czapska v. Poland, 45 Eur. Ct. H.R. 4 (2007).
2. See 1 EDWARD H. ZIEGLER, JR., RATHKOPF’S THE LAW OF ZONING AND PLANNING
§ 6:2-3 (4th ed. 2010) [hereinafter ZIEGLER, RATHKOPF’S].
3. Id
4. Id. § 6:2.
5. The Fifth Amendment is held applicable to state and local regulation by its
incorporation into the Due Process Clause of the Fourteenth Amendment. State constitutions
also contain similar due process and takings clauses. Some state constitutions grant greater
protections than the guarantees provided under the Fifth and Fourteenth Amendments. Id.
6. Hutten-Czapska v. Poland, 45 Eur. Ct. H.R. 4 (2007).
7. See id.
8. See infra notes 65-67 and accompanying text.
9. See generally JAN G. LAITOs, LAW OF PROPERTY RIGHTS PROTECTION: LIMITATIONS
ON GOVERNMENTAL POWER (2005).
10. Edward H. Ziegler, Fundamental Fairness and Regulatory Takings: Judicial
Standards of Fairness Shaping the Limits of Categorical and Partial Taking Claims, 1996
INST. ON PLAN. ZONING & EMINENT DOMAIN 11- I [hereinafter Fundamental Fairness]
11. See, e.g., NAT’L ALLIANCE TO END HOMELESSNESS, ANNUAL REPORT 2008 (2008),
available at http://www.endhomelessness.org/content/article/detail/2547; U.S. INTERAGENCY
COUNCIL ON HOMELESSNESS, http://www.ich.gov/ (last visited Nov. 26, 2010).
12. World Housing Market, ECONOMY WATCH, http://www.economywatch.com/market/
housing-market/world.html (last visited Jan. 31, 2011).
13. Edward H. Ziegler, Partial Taking Claims, Ownership Rights in Land and Urban
Planning Practice: The Emerging Dichotomy Between Uncompensated Regulation and
Compensable Benefit Extraction under the Fifth Amendment Takings Clause, 22 J. LAND
RESOURCES & ENVTL. L. 1 (2002) [hereinafter Ziegler, Partial Taking].
14. See Allison Duham, A Legal and Economic Basis for City Planning, 58 Colum. L.
Rev. 650, 666-67 (1958); see also ZIEGLER, RATHKOPF’S, supra note 2,§ 6:34; Ziegler,
Partial Taking, supra note 13, at 9.
15. See ZIEGLER, RATHKOPF’S, supra note 2, § 6:3; see generally LAITOS, supra note 9;
Ziegler, Partial Taking, supra note 13.
16. See, e.g., United States v. Causby, 328 U.S. 256 (1946) (direct overflights destroyed
present use of land as a chicken farm); United States v. Cress, 243 U.S. 316 (1917) (repeated
flooding of land caused by water project); see also Moden v. United States, 60 Fed. Cl. 275,
282 (Fed. Cl. 2004) (test for distinguishing a taking from a tort in inverse condemnation
cases involves a two-part inquiry: (1) “a property loss compensable as a taking only results
when the government intends to invade a protected property interest or the asserted invasion
is the ‘direct, natural, or probable result of an authorized activity and not the incidental or
consequential injury by the action,”‘ and (2) “‘the nature and magnitude of the government
action must be considered. Even where the effects of the government action are predictable,
to constitute a taking, an invasion must appropriate a benefit to the government at the
expense of the property owner, or at least preempt the owner[‘]s right to enjoy his property
for an extended period of time, rather than merely inflict an injury that reduces its value’)
(quoting Ridge Line, Inc. v. United States, 346 F.3d 1346, 1355-56 (Fed.Cir.2003), aff’d,
404 F.3d 1335 (Fed. Cir. 2005)).
17. See Armstrong v. United States, 364 U.S. 40 (1960). Recent U.S. Supreme Court
taking decisions continue to embrace this ultimate taking standard. See Agins v. City of
Tiburon, 447 U.S. 255, 260 (1980) (“The determination that governmental action constitutes
a taking is, in essence, a determination that the public at large, rather than a single owner,
must bear the burden of an exercise of state power in the public interest.”); see also First
English Evangelical Lutheran Church v. Los Angeles Cnty., 482 U.S. 304, 318-19 (1987)
(“It is axiomatic that the Fifth Amendment’s just compensation provision 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”‘) (quoting Armstrong, 364 U.S. at
49)). The following cases contain the same quote from Armstrong: Dolan v. City of Tigard,
512 U.S. 374, 384 (1994); Concrete Pipe & Prods. of Cal., Inc. v. Constr. Laborers Pension
Trust for S. Cal., 508 U.S. 602, 646-47 (1993); Nollan v. Cal. Coastal Comm’n, 483 U.S.
825, 835 n.4 (1987); and Penn Cent. Transp. Co. v. City of New York, 438 U.S. 104, 123
(1978).
18. The U.S. Supreme Court and all state courts recognize that, short of taking title to
property, a police power restriction on land use may “go too far” and constitute an
unconstitutional taking of property for public use, due to government’s failure to pay
compensation for the use or development interests thereby destroyed. As Justice Brennan
stated in San Diego Gas & Electric Co. v. City ofSan Diego, “Police power regulations such
as zoning ordinances and other land-use restrictions can destroy the use and enjoyment of
property in order to promote the public good just as effectively as formal condemnation or
physical invasion of property. From the property owner’s point of view, it may matter little
whether his land is condemned or flooded, or whether it is restricted by regulation to use in
its natural state, if the effect in both cases is to deprive him of all beneficial use of it. From
the government’s point of view, the benefits flowing to the public from preservation of open
space through regulation may be equally great as creating a wildlife refuge through formal
condemnation or increasing electricity production through a dam project that floods private
property.” 450 U.S. 621, 652 (1981). See also Phillips v. Wash. Legal Found., 524 U.S. 156
(1998) (for purposes of taking analysis, property consists of a group of rights including the
owner’s right to possess, use, and dispose of it); Nollan, 483 U.S. at 833, n.2 (“[T]he right to
build on one’s own property – even though its exercise can be subjected to legitimate
permitting requirements-cannot remotely be described as a ‘governmental benefit.”‘).
19. See ZIEGLER, RATHKOPF’S, supra note 2, § 6:3; see generally LAITOs, supra note 9;
Fundamental Fairness, supra note 10, at 11-19.
20. Pa. Coal Co. v. Mahon, 260 U.S. 393, 413 (1922).
21. Id. at 415.
22. Id. at 413.
23. The Fifth Amendment Takings Clause presupposes the fundamental unfairness of
the uncompensated taking of private property for public use or benefit. In the regulatory
takings context, analysis of fundamental fairness in allocation of the burdens imposed, in
view of the policy of horizontal equity (the approximation of equal sharing of costs or of
sharing according to capacity to pay that exists when property is taken by the expenditure of
public funds) underlying the Takings Clause, secures and implements its original meaning
and purpose. Thus, the Supreme Court noted “the oft-cited maxim that ‘while property may
be regulated to a certain extent, if regulation goes too far it will be recognized as a taking.”‘
Lucas v. S.C. Coastal Council, 505 U.S. 1003, 1014-15 (1992) (quoting Pa. Coal Co., 260
U.S. at 415).
24. See RICHARD EPSTEIN, TAKINGS: PRIVATE PROPERTY AND THE POWER OF EMINENT
DOMAIN 138 (1985); Frank I. Michelman, Possession vs. Distribution in the Constitutional
Idea of Property, 72 IOWA L. REv. 1319, 1329 (1987); Antonin Scalia, Economic Affairs as
Human Affairs, 4 CATO J. 703, 703-04 (1985); see also Jan Laitos, The Strange Career of
Private Property and the Police Power, 40A ROcKY MTN. MIN. L. INST. 2, 2-35 (1995)
(“This protection is occurring in three general ways. First, courts are beginning to strike
laws whose primary defect is that they have unfairly affected private property interests. The
main theories used by courts to defend property against police power exercises that are
fundamentally unfair are (1) presumptions against retroactivity; (2) vested rights; and (3)
equitable estoppel. Second, certain property-protective clauses in the Constitution are being
activated by courts (particularly the United States Supreme Court and the United States
Federal Circuit Court of Appeals) to resist government regulations of land and property.
These clauses are (1) the Takings Clause; (2) the Contracts Clause; and (3) the Due Process
Clause. Third, the United States Congress has proposed legislation that would require
agencies to pay compensation to landowners whose property value has been diminished by
police power exercises. In a perfect reflection of the nation’s newly discovered interest in
the role of private property, many of these bills are entitled ‘The Private Property Owners
Bill of Rights.”‘).
25. See Keystone Bituminous Coal Ass’n v. DeBenedictis, 480 U.S. 470, 516 (1987);
Loretto v. Teleprompter Manhattan CATV Corp., 458 U.S. 419, 430 (1982).
26. See Loretto, 485 U.S. at 426-435; see also Penn Central Transp. Co. v. City of New
York, 438 U.S. 104, 124-25 (1978).
27. See Loretto, 485 U.S. at 426-435; see also Penn Central Transp. Co., 438 U.S. at
124-25 (1978).
28. Loretto, 485 U.S. at 438.
29. See Ziegler, Partial Taking, supra note 13, at 13-14.
30. See, e.g., Aspen-Tarpon Springs Ltd. P’ship v. Stuart, 635 So. 2d 61 (Fla. Dist. Ct.
App. 1994) (statute requiring mobile park owners to either buy tenants’ homes or pay
relocation costs held a regulatory taking); Manocherian v. Lenox Hill Hosp., 643 N.E.2d 479
(N.Y. 1994) (holding statute that required owners to provide renewal leases to non-private
hospitals based on primary residency status of hospital’s employee-subtenant affected partial
regulatory taking); Seawall Assocs. v. City of New York, 542 N.E.2d 1059 (N.Y. 1989)
(ordinance preventing destruction or conversion of single-room occupancy buildings is
facially invalid as a regulatory taking).
31. See ZIEGLER, RATtiKOPF’S, supra note 2, § 6:11; see generally LAITOS, supra note 9.
32. ZIEGLER, RATHKOPF’S, supra note 2, §§ 6:14, 6:22.
33. ZIEGLER, RATHKOPF’S, supra note 2, § 6:15; see also, e.g., Fla. Rock Indus., Inc. v.
United States, 18 F.3d 1560, 1567-68 (Fed. Cir. 1994) (reduction in fair market value of
almost ninety-five percent, from $10,500 to $500 per acre, would clearly constitute a total
taking).
34. See ZIEGLER, RATHKOPF’S, supra note 2, § 6:15; see generally LAITOS, supra note 9.
35. See discussion infra Part II.A; see discussion supra Part II.C.
36. ZIEGLER, RATHKOPF’S, supra note 2, § 6:30.
37. Id.
38. The U.S. Supreme Court’s decision in Lucas v. South Carolina Coastal Council,
505 U.S. 1003 (1992) clarifies that a categorical taking occurs not only when an owner is
denied all beneficial use of the land but also when the uses allowed deny an owner all
economically viable use of the land.
39. See, e.g., Helms v. City of Charlotte, 122 S.E.2d 817 (N.C. 1961); see also
Palazzolo v. Rhode Island, 533 U.S. 606 (2001) (owner retained an economically viable use
of his land where regulation allowed a residence to be built on the land, which had a market
value of $200,000-a decrease in market value of about ninety-four percent from the market
value of $3,150,000 if fully developed); Walcek v. United States, 303 F.3d 1349 (Fed. Cir.
2002) (applying whole parcel analysis to wetland regulation taking claim and ruling that
adjustment of base value of owner’s land for inflation or deflation was not warranted to
determine extent of economic impact of regulation); Am. Nat’l Bank & Trust Co. of Chi. v.
Vill. of Winfield, 274 N.E.2d 144 (Ill. App. Ct. 1971); McConnell v. Inc. Vill. of Tuckaboe,
25 A.D.2d 441 (N.Y. App. Div. 1966); Cf Munoz Realty Corp. v. Borough of Verona, 225
A.2d 594 (N.J. Super. Ct. App. Div. 1966) (evidence failed to show that homes could not be
built without cellars and sold at a fair profit or that lots could not be sold unimproved for a
fair price to seller), aff’d, 225 A.2d 569 (N.J. 1966).
40. See People ex rel. St. Albans-Springfield Corp. v. Connell, 177 N.E. 313 (N.Y.
1931); see also Opgal, Inc. v. Bums, 189 N.Y.S.2d 606 (N.Y. Sup. Ct. 1959) (because there
were approximately 1,300 acres of industrially zoned land in use in the town, 800 acres of
undeveloped industrially zoned land, and approximately 5,800 acres of vacant land zoned for
industrial use in the county and the neighboring county at the time the plaintiffs land was
zoned from residential to industrial, there was no present need for further industrial rezoning;
rezoning plaintiffs land was restrictive and unconstitutional), ajfd, 10 A.D.2d 977 (N.Y.
App. Div. 1960), aff’d, 173 N.E.2d 50 (N.Y. 1961).
41. ZIEGLER, RATHKOPF’S, supra note 2, §§ 6:22, 6:51.
42. See Pennell v. City of San Jose, 485 U.S. 1, 20 (1988) (Scalia, J., dissenting)
(“Traditional land-use regulation (short of that which totally destroys the economic value of
property) does not violate [fairness principles] . . . . Thus, the common zoning regulations
requiring subdivisions to observe lot-size and set-back restrictions, and to dedicate certain
areas to public streets, are in accord with our constitutional traditions because the proposed
property use would otherwise be the cause of excessive congestion.”).
43. See, e.g., Woods v. Cloyd W. Miller Co., 333 U.S. 138 (1948); Bowles v.
Willingham, 321 U.S. 503 (1944).
44. Bowles, 321 U.S. at 516-17.
45. Id. at 517.
46. See, e.g., Adamson Cos. v. City of Malibu, 854 F. Supp. 1476, 1502 (C.D. Cal.
1994) (rent control ordinance); Aspen-Tarpon Springs Ltd. P’ship v. Stuart, 635 So. 2d 61
(Fla. Dist. Ct. App. 1994) (conditions on change of use of mobile home park); Manocherian
v. Lenox Hill Hosp
47. See W. Dennis Keating, Rent Control: Fair Return, Landlord Hardship, and
Regulatory takings, 12 ZONING & PLAN. L. REP. 169 (1989); see also Santa Monica Beach,
Ltd. V. Superior Court, 968 P.2d 993, 1002 (Cal. 1999) (rejecting a substantive due process
claim to rent control law; “[C]ourts have employed the fair return analysis to price regulation
cases whether the contested regulation is dominated as a taking or a deprivation of property
without due process.”).
48. See generally Karl Manheim, Tenant Eviction Protection and the Takings Clause,
1989 Wis. L. REv. 925.
49. See Kenneth K. Baar, Guidelines for Drafting Rent Control Laws: Lessons of a
Decade, 35 RUTGERS L. REv. 721, 784-816 (1983). The U.S. Supreme Court has generally
defined fair return in this context as a “return . .. commensurate with returns on investments
in other enterprises having corresponding risks. That return, moreover, should be sufficient
to . .. extract capitol.” Fed. Power Comm’n v. Hope Natural Gas Co., 320 U.S. 591, 603
(1944). See also In re Permian Basin Area Rate Cases, 390 U.S. 747, 792 (1968) (“The
court must determine whether the [regulation] may reasonably be expected to maintain
financial integrity, attract necessary capitol, and fairly compensate investors for the risks
they have assumed, and yet provide appropriate protection for the relevant public interests,
both existing and foreseeable.”).
50. See Kavanau v. Santa Monica Rent Control Bd., 941 P.2d 851, 858-59 (Cal. 1997)
(summarizing a number of important criteria for evaluating whether regulation as applied
provides a “fair return” on investment).
51. Parks v. Rent Control Bd., 526 A.2d 685, 686 (N.J. 1987).
52. See generally San Marcos Mobilehome Park Owners Ass’n v. City of San Marcos,
238 Cal. Rptr. 290 (Cal. Ct. App. 1987); Parks, 526 A.2d 685.
53. Assistance, Inc. v. Teledyne Indus., Inc., 112 Cal. Rptr. 418 (Cal. Ct. App. 1974).
54. Sierra Lake Reserve v. City of Rocklin, 938 F.2d 951, 958 (9th Cir. 1991), vacated,
506 U.S. 802 (1992); see also Main Union Assocs. v. Twp. of Little Falls Rent Leveling Bd.,
703 A.2d 971 (N.J. Super. Ct. App. Div. 1997) (absence of provision for capital
improvement surcharge did not render rent control ordinance unconstitutional on its face
since the ordinance allowed rent increases to provide a just and reasonable return).
55. Richardson v. City & Cnty of Honolulu, 759 F. Supp. 1477 (D. Haw. 1991).
56. Id.
57. Id. at 1489.
58. Id. at 1489-90.
59. Seawall Assocs. v. City of New York, 542 N.E.2d 1059 (N.Y. 1989).
60. Id.
61. Id. at 1060-61.
62. Id. at 1065-68.
63. Seawall Assocs., 542 N.E.2d at 1069.
64. Id.; see also Aspen-Tarpon Springs Ltd. P’ship v. Stuart, 635 So. 2d 61 (Fla. Dist.
Ct. App. 1994) (statute requiring owner, if changing use of mobile home park, to either buy
tenants’ homes or pay to have homes moved held unconstitutional since not economically
feasible).
65. See, e.g., Dolan v. City of Tigard, 512 U.S. 374 (1994); Concrete Pipe & Prods. of
Cal., Inc. v. Constr. Laborers Pension Trust for S. Cal., 508 U.S. 602 (1993); Nollan v. Cal.
Coastal Comm’n, 483 U.S. 825 (1987); Penn Cent. Transp. Co. v. City of New York, 438
U.S. 104 (1978).
66. See ZIEGLER, RATHKOPF’S, supra note 2, § 6:51; see also Dolan, 512 U.S. at 374;
Nollan, 483 U.S. at 825.
67. ZIEGLER, RATHKOPF’S, supra note 2, §§ 6:51-52.
68. See ZIEGLER, RATHKOPF’S, supra note 2, § 6:51; see also Fla. Rock Indus., Inc. v.
United States, 18 F.3d 1560, 1571 (Fed. Cir. 1994); see generally Fundamental Fairness,
supra note 10.
69. See, e.g., E. Enters. v. Apfel, 524 U.S. 498, 528-29, 537 (1998) (the Takings Clause
requires fair assessment of burdens imposed related to causation and proportionality); Lucas
v. S.C. Coastal Council, 505 U.S. 1003, 1018-26 (1992) (while regulation often may be
interpreted as either “harm-preventing” or “benefit-conferring,” there must be heightened
judicial review of the nexus between the conduct restricted and the social problem addressed
by regulation in situations where there is a “heightened risk that private property is being
pressed into some form of public service”); United States v. Armstrong, 364 U.S. 40, 49
(1960) (the Takings Clause “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.”); Pa. Coal Co. v. Mahon, 260 U.S. 393, 416 (1922) (“[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 …. [T]he question at bottom is upon
whom the loss of the [regulatory] changes desired should fall.”); Monongahela Navigation
Co. v. United States, 148 U.S. 312, 325 (1893) (the Takings Clause “prevents the public
from loading upon one individual more than his just share of the burdens of government, and
says that when he surrenders to the public something more and different from that which is
exacted from other members of the public, a full and just equivalent shall be returned to
him.”).
70. Dolan, 512 U.S. 374 (holding that there must be rough proportionality between
amount of development exaction and extent of specific problem related to or need generated
by particular development proposal); Nollan, 483 U.S. 825 (holding that there must be a
substantial relationship between nature of development exaction and some specific problem
related to or need generated by particular development proposal); see also Fundamental
Fairness, supra note 10, at 11-23.
71. Dolan, 512 U.S. 374 (holding that there must be rough proportionality between
amount of development exaction and extent of specific problem related to or need generated
by particular development proposal); Nollan, 483 U.S. 825 (holding there must be a
substantial relationship between nature of development exaction and some specific problem
related to or need generated by particular development proposal); see also ZIEGLER,
RATHKOPF’S , supra note 2, § 6:10; Fundamental Fairness, supra note 10, at 11-23; see
generally LAITOS, supra note 9.
72. This type of partial taking analysis is reflected, in another context, in California
Chief Justice Rose Bird’s dissenting opinion in Yarborough v. Superior Court, 702 P.2d 583,
432 (Cal. 1985) (quoting Yarbrough v. Superior Court, 197 Cal.Rptr. 737, 744-45 (Cal. Ct.
App. 1983) (King, J., concurring):
No one would dare suggest courts have the authority to order a doctor, dentist
or any other professional to provide free services, while at the same time
telling them they must personally pay their own overhead charges for that
time. No crystal ball is necessary to foresee the public outrage which would
erupt if we ordered grocery store owners to give indigents two months of free
groceries or automobile dealers to give them two months of free cars. Lawyers
in our society are entitled to no greater privileges than the butcher, the baker
and the candlestick maker; but they certainly are entitled to no less.
73. But cf Commercial Builders of N. Cal. v. City of Sacramento, 941 F.2d 872, 873
(9th Cir. 1991) (upholding low-income housing fee on commercial building permits);
Holmdel Builders Ass’n v. Twp. of Holmdel, 583 A.2d 277, 295 (N.J. 1990) (upholding
low-income housing fee on commercial building permits); Seawall Assocs. v. City of New
York, 542 N.E.2d 1059, 1069 (N.Y. 1989) (affirming buyout and other burdens imposed on
single-room only housing to address problems of homeless).
74. See, e.g., Commercial Builders of N. California v. City of Sacramento, 941 F.2d 872
(9th Cir. 1991) (upholding city ordinance that conditioned nonresidential building permits on
payment of fee to offset burdens associated with influx of low-income workers to work on
such developments); S. Shell Inv. v. Town of Wrightsville Beach, 703 F. Supp. 1192, 1206
(E.D.N.C. 1988) (rejecting a claim that a three-fold increase in utility system and tap water
impact fees was arbitrary even though the fees bore no relationship to the stated purposes
and were intermixed with government funds), affd, 900 F.2d 255 (4th Cir. 1990); Bldg.
Indus. Ass’n of Cent. Cal. v. City of Patterson, 90 Cal. Rptr.3d 63 (Cal. Ct. App.), cert.
denied, 130 S.Ct. 660 (2009).
75. Bldg. Indus. Ass’n, 90 Cal.Rptr.3d at 73-74.
76. Id.
77. Id. at 74.
78. See, e.g., Garneau v. City of Seattle, 897 F. Supp. 1318 (W.D. Wash. 1995)
(exaction of cash relocation assistance for low-income tenants); Gagne v. City of Hartford,
10 Conn. L. Rptr. 630 (Conn. Super. Ct. 1994) (requiring replacement of, or “in lieu” fees
for, low income housing); Aspen-Tarpon Springs Ltd. P’ship v. Stuart, 635 So. 2d 61 (Fla.
Dist. Ct. App. 1994) (requirement that mobile home park owners buy tenants’ homes or pay
relocation costs); Prop. Owners Ass’n v. Twp. of N. Bergen, 378 A.2d 25 (N.J. 1977)
(ordinance requiring landlords and other tenants to subsidize senior citizens’ rents);
Manocherian v. Lenox Hill Hosp., 643 N.E.2d 479 (N.Y. 1994) (requirement that owners
provide renewal leases to non-private hospitals based on primary residency status of
hospital’s employee-subtenant); Seawall Assocs., 542 N.E.2d at 1069 (buyout and other
burdens imposed on single-room-only housing to address homelessness problem); Guimont
v. Clarke, 854 P.2d I (Wash 1993) (relocation assistance for low-income tenants); Robinson
v. City of Seattle, 830 P.2d 318 (Wash. 1992) (fees required for destruction of low-income
housing).
79. Prop. Owners Ass’n, 378 A.2d at 33 (“[T]he initial burden falls exclusively upon the
shoulders of the non-Senior Tenants, who in a given case may be financially less capable of
bearing the increase than the Senior Tenants.”).
80. Hutten-Czapska v. Poland, 45 Eur. Ct. H.R. 4 (2007).
81. Maureen Markham, Poland: Housing Challenge In a Time of Transition (2003)
(unpublished HUT-236M paper, Harvard University), http://www.jchs.harvard.edu/
education/ oustandingstudent_papers/markham_poland_03.pdf.
82. Hutten-Czapska, 45 Eur. Ct. H.R. at 237.
83. Id.
84. Id. at% 136-41.
85. Hutten-Czapska, 45 Eur. Ct. H.R. at 1237.
86. Protocol to the Convention for the Protection of Human Rights and Fundamental
Freedoms of 20 March 1952, as amended by Protocol No. 11, May 11, 1994, ETS No. 155
(entered into force Nov. 1, 1998), available at http://www.ena.lu/protocolconvention_
protection human rights fundamentalfreedomsparismarch_1952_amendedversion-2-
13069.
87. Charter of Fundamental Rights of the European Union, art. 17, 1 1, 2000 O.J. (C
364) 1, 12.
88. Hutten-Czapska, 45 Eur. Ct. H.R. at 1 225.
89. Id.
90. Id. at 167; see also Spadea & Scalabrino v. Italy, 21 Eur. Ct. H.R. 482 (1996)
(discussing the impossibility for a landlord to obtain the enforcement of a decision evicting a
tenant).
91. See supra notes 65-71 and accompanying text.
92. See Charter of Fundamental Rights of the European Union, art. 17, T 1, 2000 O.J. (C
364) 1, 12; Protocol to the Convention for the Protection of Human Rights and Fundamental
Freedoms of 20 March 1952, as amended by Protocol No. 11, May 11, 1994, ETS No. 155
(entered into force Nov. 1, 1998), available at http://www.ena.lulprotocolconvention_
protection human-rightsfundamental_freedomsparis march_1952_amended version-2-
13069.
94. See Thomas W. Merrill, Dolan v. City of Tigard: Constitutional Rights as Public
Goods, 72 DENV. U. L. REv. 859 (1995).
95. See generally id.
96. 6 West’s Encyclopedia of American Law 185 (Jeffrey Lehman & Shirelle Phelps
eds., 2nd ed. 2005).
97. Id.
98. Id.
99. Id.
100. Id.
101. Id.
102. Id.
103. West’s Encyclopedia of American Law, supra note 96, at 187.
104. Id.
105. Id.
106. Id.
107. Id.
108. One such intervention is rent control, where government artificially restricts rent
increases or limits the landlord’s ability to charge a service fee to tenants and thus interferes
with the market supply, demand and price, rendering the market’s self-corrective features
inoperative. See, e.g., Guggenheim v. City of Goleta, 2010 WL 5174984 (9th Cir. December
22, 2010) (en banc) (holding that a mobile home park rent control ordinance constituted a
regulatory taking. The ordinance was a wealth transfer mechanism, which placed a high
burden on private owners to accomplish city goals that could have been accomplished by
other means and went “too far.” The 9th Circuit, sitting en banc, reversed, holding that the
ordinance furthered legitimate government purpose, as required by due process, and thus did
not constitute taking).
Different tax rates among localities, concentrating higher tax rates in the centrally
located urban developments encourage suburbanization and aggravate the troubles of
central-city business properties. Through various policies, such as tax incentives, low
interest loans, easy credit, secondary mortgage market and capital gains protection, the
government creates over-stimulation of demand. These policies led to the near collapse of
the American housing market in 2008-2009.
109. See generally STEPHEN G. BREYER, REGULATION AND ITS REFORM (1982); PHILIP K.
HOWARD, THE DEATH OF COMMON SENSE: How LAW IS SUFFOCATING AMERICA (1994);
SUSAN ROSE-ACKERMAN, RETHINKING THE PROGRESSIVE AGENDA: THE REFORM OF THE
AMERICAN REGULATORY STATE (1992).
110. See ROSE-ACKERMAN, supra note 109, at 133-34
S11l. Norman Kailin, Substantive Due Process: A Doctrine for Regulatory Control, 13
Sw. U. L. REV. 479, 480 (1983).
112. See LAITOS, supra note 9, § 1.04(C)(1).
113. See Dolan v. City of Tigard, 512 U.S. 374, 385-86 (1994); Armstrong v. United
States, 364 U.S. 40, 49 (1960); see also LAITOS, supra note 9, § 1.04(C)(1).
114. Frank I. Michelman, Property, Utility, and Fairness: Comments on the Ethical
Foundations of “Just Compensation” Law, 80 HARV. L. REV. 1165, 1214 (1967)
[hereinafter Michelman, Property].
115. Id.
116. LAITos, supra note 9, § 1.04(C)(1).
117. EPSTEIN, supra note 24, at 95-200.
118. Pennell v. City of San Jose, 485 U.S. 1, 19-23 (1988) (Scalia, J., concurring in part
and dissenting in part).
119. Dolan, 512 U.S. at 386-87, 391-93 (1994).
120. See Philip P. Houle, Eminent Domain, Police Power and Business Regulation:
Economic Liberty and the Constitution, 92 W. Va. L. Rev. 51, 61 (1989); Anthony S.
McCaskey, Comment, Thesis and Antithesis of Liberty of Contract: Excess in Lochner and
Johnson Controls, 3 SETON HALL CONST. L.J. 409, 459 (1993); James L. Oakes, “Property
Rights” in Constitutional Analysis Today, 56 WASH. L. REV. 583, 624 (1981); Note,
Resurrecting Economic Rights: The Doctrine of Due Process Reconsidered, 103 HARV. L.
REV. 1363, 1371 (1990).
121. LAITOS, supra note 9, § 1.04(C)(1).
122. Houle, supra note 120, at 59, 98.
123. See MANCUR M. OLSON, THE LOGIC OF COLLECTIVE ACTION: PUBLIC GOODS AND
THEORY OF GROUPS 165-67 (2d ed. 1971); see also Glynn S. Lunney, Jr., A Critical
Reexamination of the Takings Jurisprudence, 90 MICH. L. REV. 1892, 1950-51 (1992)
(concentrated groups are likely to have disproportionately greater resources available than a
dispersed group of poor individuals and are more likely to use the available resources more
effectively to influence the legislature).
124. Legal Scholars have increasingly argued that property rights should be accorded
constitutional protection equal to those enjoyed by other individual rights. See, e.g.,
EPSTEIN, supra note 24; 3 FRIEDRICK A. HAYAK, LAW, LEGISLATION, AND LIBERTY: THE
POLITICAL ORDER OF A FREE PEOPLE (1979); ROSE-ACKERMAN, supra note 109; BERNARD H.
SIEGAN, ECONOMIC LIBERTIES AND THE CONSTITUTION (1980); CASS R. SUNSTEIN, AFTER THE
RIGHTS REVOLUTION: RECONCEIVING THE REGULATORY STATE (1990); Ronald J.
Krotoszynski, Jr., Fundamental Property Rights, 85 GEO. L.J. 555 (1997); Douglas W.
Kmiec, Property and Economic Liberty as Civil Rights: The Magisterial History of James
W Ely, Jr., 52 VAND. L. REV. 737 (1999) (reviewing PROPERTY RIGHTS IN AMERICAN
HISTORY (James W. Ely, Jr. ed. 1997)). But see C. Edwin Baker, Property and its Relation
to Constitutionally Protected Liberty, 134 U. PA. L. REV. 741 (1986); Alan E. Brownstein,
Constitutional Wish Granting and the Property Rights Genie, 13 CONST. COMMENT. 7
(1996).
126. Lucas v. S. C. Coastal Council, 505 U.S. 1003, 1015 (1992).
127. Van Wyk v. Public Serv. Co., 996 P.2d 193 (Colo. App. 1999), rev’d in part, 27
P.3d 377 (Colo. 2001).
128. Ali v. City of Los Angeles, 91 Cal. Rptr.2d 458 (Cal. Ct. App. 1999) (two-year
temporary taking).
129. Lucas, 505 U.S. at 1019 n.8; see also Shelden v. United States, 7 F.3d 1022 (Fed.
Cir. 1993) (taking when government action totally destroyed value of a mortgage owned by
the plaintiff)
130. See Michelman, Property, supra note 114, at 1211-14; see also JEREMY BENTHAM,
PRINCIPLES OF THE CIVIL CODE, IN THEORY OF LEGISLATION 109-14, 121 (C.K. Ogden ed.
1987).
131. EPSTEIN, supra note 24, at 265.
132. ZIEGLER, RATHKOPF’S, supra note 2, § 6:16.
133. Armstrong v. United States, 364 U.S. 40 (1960).
134. Id. at 44.
135. See, e.g., Christopher Lake Dev. Co. v. St. Louis Cnty., 35 F.3d 1269, 1275 (8th Cir.
1994); Creppel v. United States, 41 F.3d 627, 631 (Fed. Cir. 1994); Cardan Oil Co. v. City of
Phoenix, 593 P.2d 656, 659 (Ariz. 1979); Manocherian v. Lenox Hill Hosp., 643 N.E.2d
479, 484 (N.Y. 1994).
136. See, e.g., Bonnie Briar Syndicate, Inc. v. Town of Mamaroneck, 699 N.Y.S.2d 721
(N.Y. 1999) (discussing whether plaintiffs had been singled out or involuntarily conscripted
to provide open space to the public).
137. See Robert C. Ellickson, Suburban Growth Controls: An Economic and Legal
Analysis, 86 YALE L.J. 420 (1977); A. Dan Tarlock, Zoning and Land Use Symposium:
Regulatory Takings, 60 Cm.-KENT L. REV. 23, 31 (1984).
138. EPsTEIN, supra note 24, at viii.

cited https://mckinneylaw.iu.edu/iiclr/pdf/vol21p25.pdf
download PDF here 

 

 

 

16. Property Rights and the Constitution

Congress should

• enact legislation for guiding federal agencies and influencing courts that outlines the constitutional rights of property owners under the Fifth Amendment’s Takings Clause;
• follow the traditional common law in defining “private property,” “public use,” and “just compensation”;
• treat property taken through regulation the same as property taken through physical seizure; and
• provide a single forum in which property owners may seek injunctive relief and just compensation promptly.

America’s Founders understood clearly that private property is the foundation not only of prosperity but of freedom itself. Thus, through the common law, state law, and the Constitution, they protected property rights — the rights of people to acquire, use, and dispose of property freely. With the growth of modern government, however, those rights have been seriously compromised. Unfortunately, the Supreme Court has yet to develop a principled, much less comprehensive, theory for remedying those violations. That failure has led to the birth of the property rights movement in state after state. It is time now for Congress to step in — to correct the federal government’s own violations and to set out a standard that courts might notice as they adjudicate complaints about state violations.

The Constitution protects property rights through the Fifth and Fourteenth Amendments’ Due Process Clauses and, more directly, through the Fifth Amendment’s Takings Clause: “nor shall private property be taken for public use without just compensation.” There are two basic ways government can take property: (1) outright, by condemning the property and taking title; and (2) through regulations that take uses, leaving the title with the owner — so‐​called regulatory takings. In the first case, the title is all too often taken not for a public but for a private use; and rarely is the compensation received by the owner just. In the second case, the owner is often not compensated at all for his losses; and when he is, the compensation is again inadequate.

Over the past three decades, the Supreme Court has chipped away at the problem of uncompensated regulatory takings, requiring compensation in some cases; but its decisions were largely ad hoc, leaving most owners to bear the losses themselves. Thus, owners today can get compensation when the title is actually taken, as just noted; when the property is physically invaded by government order, either permanently or temporarily; when regulation for other than health or safety reasons takes all or nearly all of the value of the property; and when government attaches conditions to permits that are unreasonable, disproportionate, or unrelated to the purpose behind the permit requirement. But despite those modest advances, toward the end of its October 2004 term, the Court decided three property rights cases in which the owners had legitimate complaints, and in all three, the owners lost. One of those cases was Kelo v. City of New London, in which the city condemned Ms. Kelo’s property only to transfer it to another private party that the city believed could make better use of it. In so doing, the Court simply brushed aside the “public use” restraint on the power of government to take private property. The upshot, however, was a public outcry across the nation and the introduction of reforms in over 40 states. But those reforms varied substantially, and nearly all leave unaddressed the far more common problem of regulatory takings.

At bottom, then, the Court has yet to develop a principled and comprehensive theory of property rights, much less a comprehensive solution to the problem of government takings. For that, Congress (or the Court) is going to have to turn to first principles, much as the old common law judges did. We need to begin, then, not with the public law of the Constitution as presently interpreted, but with the private law of property.

Property: The Foundation of All Rights

It is no accident that a nation conceived in liberty and dedicated to justice for all protects property rights. Property is the foundation of every right we have, including the right to be free. Every right claim, after all, is a claim to some thing — either a defensive claim to keep what one is holding or an offensive claim to something someone else is holding. John Locke, the philosophical father of the American Revolution and the inspiration for Thomas Jefferson when he drafted the Declaration of Independence, stated the issue simply: “Lives, Liberties, and Estates, which I call by the general Name, Property.” And James Madison, the principal author of the Constitution, echoed those thoughts when he wrote, “as a man is said to have a right to his property, he may be equally said to have a property in his rights.”

Much moral and legal confusion would be avoided if we understood that all of our rights — all of the things to which we are “entitled” — can be reduced to property. That would enable us to separate genuine rights — things to which we hold title — from specious “rights” — things to which other people hold title, which we may want for ourselves. It was the genius of the old common law, grounded in reason and custom, that it grasped that point. And the common law judges understood a pair of corollaries as well: property, broadly conceived, separates one individual from another; and individuals are independent or free to the extent that they have sole or exclusive dominion over what they hold. Indeed, Americans go to work every day to acquire property just so they can be independent.

It would be to no avail, however, if property, once acquired, could not be used and enjoyed — if rights of acquisition, enjoyment, and disposal were not legally protected. Thus, common law judges, charged with settling disputes between neighbors, drew on principles of reason, efficiency, and custom to craft a law of property that by and large respected the equal rights of all.

In a nutshell, the basic rights they recognized, beyond acquisition and disposal, were the right of sole dominion — variously described as a right to exclude others, a right against trespass, or a right of quiet enjoyment, which all can exercise equally at the same time and in the same respect — and the right of active use, at least to the point where such use violates the rights of others to quiet enjoyment. Just where that point is will vary with the facts, of course, and that is the business of courts to determine, although legislatures can draw the broad outlines. Given our modern permitting regime, however, the point to be noticed here is that the presumption of the common law was ordinarily on the side of free use. People were not required to obtain a permit before using their property, that is, just as people today are not required to obtain a permit before speaking. Rather, the burden was on those who objected to a given use to show how it violated a right of theirs. That amounts to having to show that their neighbor’s use takes something they own free and clear. If they failed in that, the use could continue.

Thus, the common law limits the right of free use only when a use encroaches on the property rights of others, as in the classic law of nuisance and risk. The implications of that limit should not go unnoticed, however, especially in the context of modern environmental protection. Indeed, the belief, common today, that property rights are opposed to environmental protection is so far from the case as to be just the opposite: the right against environmental degradation is a property right. Under common law, properly applied, people cannot use their property in ways that damage their neighbors’ property — defined, again, as taking things those neighbors hold free and clear. Properly conceived and applied, then, property rights are self‐​limiting: they constitute a judicially crafted and enforced regulatory scheme in which rights of active use end when they encroach on the property rights of others.

The Police Power and the Power of Eminent Domain

But if the common law of property defines and protects private rights — the rights of owners with respect to each other — it also serves as a guide for the proper scope and limits of public law — defining the rights of owners and the public with respect to each other. For public law, at least at the federal level, flows from the Constitution; and the Constitution flows from the principles articulated in the Declaration of Independence; and those reflect, largely, the common law. The justification of public law begins, then, with our rights, as the Declaration makes clear. Government then follows, not to give us rights through positive law but to recognize and secure the rights we already have through natural law. Thus, to be morally legitimate, the powers of government must be derived from and consistent with those rights.

The two public powers most often at issue in the property rights context are the police power — the power of government mainly to secure rights — and the power of eminent domain — the power to take property for public use upon payment of just compensation, as set forth, by implication, in the Fifth Amendment’s Takings Clause.

The general police power — the fundamental power of government — is derived from what Locke called the Executive Power, the power each of us has in the state of nature to secure our rights. Thus, as such, this legal power is legitimate since it is nothing more than the public law version of a moral power we already have, by right, which we gave to government to exercise on our behalf when we constituted ourselves as a nation. But its exercise is legitimate only insofar as it is used to secure rights and to provide certain “public goods” like national defense and clean air — narrowly defined as economists do, citing free‐​rider problems, nonexcludability, and nonrivalrous consumption — and only insofar as its use respects the rights of others. Thus, while our rights give rise to the police power, they also limit it. We cannot use the police power for non‐​police‐​power purposes. It is a power mainly to secure rights through restraints or sanctions, not some general power to provide the public with goods and services more broadly defined.

A complication arises in the case of the federal government, however, because there is no general federal police power. Rather, the Constitution establishes a government of delegated, enumerated, and thus limited powers, leaving most powers, including the general police power, with the states or the people, as the Tenth Amendment makes clear. Consistent with constitutional principle, then, whatever power the federal government has to secure rights is limited to federal territory, is incidental to one of its enumerated powers, or is entailed mainly through the amendments. (See Chapter 15 for greater detail on this point.)

But if the police power is thus limited, then any effort to provide the public with goods and services more broadly must be accomplished under some other power, such as those, in the case of the federal government, that are enumerated in Article I, Section 8 of the Constitution. Yet that effort will be constrained by the Takings Clause, which requires that private property taken in pursuit of such ends — whether in whole or in part is irrelevant — must be accompanied by just compensation for the owner of the property. Otherwise the costs of the benefit to the public would fall entirely on the owner. Not to put too fine a point on it, that would amount to theft. Indeed, it was to prohibit that kind of thing that the Framers wrote the Takings Clause in the first place.

Thus, the power of eminent domain — which is not enumerated in the Constitution but is implicit in the Takings Clause — is an instrumental power: It affords a means that enables government, acting under some other power, to pursue other ends — building roads, for example, or saving wildlife. Moreover, unlike the police power, the eminent domain power is not inherently legitimate: Indeed, in a state of nature, prior to the creation of government, none of us would have a right to condemn a neighbor’s property, however worthy our purpose, however much we compensated him. Thus, it is not for nothing that eminent domain was known in the 17th and 18th centuries as “the despotic power.” It arises from practical considerations alone — to enable public projects to go forward without being held hostage to holdouts seeking to exploit the situation by extracting far more than just compensation. As for its justification, the best that can be said for eminent domain is this: the power was ratified by those in the original position; and it is “Pareto superior,” as economists say, meaning that at least one party (the public) is made better off by its use, as evidenced by its willingness to pay, while no one is made worse off, assuming the owner receives just compensation.

When Is Compensation Required?

We come then to the basic question: When do owners have to be compensated as a result of government actions? In general, there are four scenarios to consider.

First, when government actions incidentally reduce property values, but no rights are violated because nothing that belongs free and clear to the owner is taken, no compensation is due. If the government closes a military base or a neighborhood school, for example, or builds a new highway distant from the old one with its commercial enterprises, property values may decline as a result — but nothing was taken. We own our property and all the legitimate uses that go with it, not the value in our property, which is a function of many ever‐​changing factors.

Second, when government acts, under its police power, to secure rights — when it stops someone from polluting, for example, or from excessively endangering others — the restricted owner is not entitled to compensation, whatever his financial losses, because the uses prohibited or “taken” were wrong to begin with. Since there is no right to pollute, no right was taken. Thus, we do not have to pay polluters not to pollute. Here again the question is not whether value was taken but whether a right was taken. Proper uses of the police power take no rights. They protect rights.

Third, when government acts not to secure rights but to provide the public with goods like wildlife habitat, scenic views, or historic preservation, and in so doing prohibits or “takes” some otherwise rightful use, then it is acting, in part, under the eminent domain power and does have to compensate the owner for any losses he may suffer. The principle here is quite simple: the public has to pay for the goods it wants, just like any private person would have to. Bad enough that the public can take what it wants by condemnation; at least it should pay for what it takes rather than ask the owner to bear the full cost of its appetite. It is here, of course, that modern regulatory takings abuses are most common, as governments at all levels try to provide the public with all manner of amenities, especially environmental amenities, “off budget.” As noted above, there is an old‐​fashioned word for that practice — “theft” — and no amount of rationalization about “good reasons” will change that. Even thieves, after all, have “good reasons” for what they do.

Finally, when government, through full condemnation, takes for public use not simply some or all of the owner’s uses but the entire estate, including the title, compensation is clearly due.

Some Implications of a Principled Approach

Starting from first principles, then, we see that there is no difference in principle between the full use of eminent domain just described and a regulatory taking — between taking full title and taking only uses. Thus, the oft‐​heard claim that the Takings Clause requires compensation only for “full” takings will not withstand scrutiny. Giving the clause a natural reading, it speaks simply of “private property.” As Madison wrote (above), “property” denotes all the uses or rights that can rightly be made of a holding. It does not denote simply the underlying estate. In fact, in every area of property law except regulatory takings, we speak of property as being a “bundle of sticks,” any one of which can be bought, sold, rented, bequeathed, what have you. Yet, to enable government to provide the public with goods “off budget” and thus “on the cheap,” takings law has clung to the idea that only if the entire bundle is taken does government have to pay compensation.

That view enables government to extinguish nearly all uses through regulation — and hence to regulate nearly all value out of property — yet escape the compensation requirement because the all‐​but‐​empty title remains with the owner. And it would allow a government to take 90 percent of the value in year one, then come back a year later and take title for a dime on the dollar. Not only is that wrong, it is unconstitutional. It cannot be what the Takings Clause stands for. The principle, rather, is that property is indeed a bundle of sticks, a bundle of rights: take one of those sticks and you take something that belongs to the owner. The only question then is how much his loss is worth.

Thus, when the Court in 1992 in Lucas v. South Carolina Coastal Council crafted what is effectively a 100 percent rule, whereby owners are entitled to compensation only if regulations restrict uses to a point where all value is lost, it went about the matter backward. It measured the loss to determine whether there was a taking. As a matter of first principle, the Court should have determined first whether there was a taking — whether otherwise legitimate uses were prohibited by the regulation — and only then should it have measured the loss. That addresses the principle of the matter. It then remains simply to measure the loss in value and hence the compensation that is due. In Lucas, since all uses were effectively taken, full compensation was due. The place to start, in short, is with the first stick, not the last dollar. That is especially so since most regulatory takings take only some uses, thus reducing the value of the property by less than its full value.

More generally, the principled approach to takings requires that the Court have a basic understanding of the theory of the matter and a basic grasp of how to resolve conflicting claims about use in a way that respects the equal rights of all. That is hardly a daunting task, as the old common law judges demonstrated, although the application of those principles in particular cases can be complicated, to be sure. But in general, as already noted, the presumption is on the side of active use until some plaintiff demonstrates that such use takes the quiet enjoyment that is his by right (and the defendant’s right as well). At that point the burden shifts to the defendant to justify his use: absent some defense like the prior consent of the plaintiff, the defendant may have to cease his use — or, if his activity is worth it, offer to buy an easement or buy out the plaintiff. Thus, a principled approach respects equal rights of quiet enjoyment — and hence environmental protection. But it also enables active uses to go forward — though not at the expense of private or public rights. Users can be as active as they wish, provided they handle the “externalities” they create in a way that respects the rights of others.

What Congress Should Do

As already noted, the application of these principles is often fact dependent and so is best done by courts. But until our courts, and the Supreme Court in particular, craft a more principled and systematic approach to takings, Congress can assist by drawing at least the broad outlines of such an approach as a guide both for the courts and, more directly, for federal agencies.

In this last connection, however, Congress should recognize that the regulatory takings problem begins with regulation. Doubtless the Founders did not anticipate the modern regulatory state, so they did not specify that regulatory takings are takings too and thus are subject to the Just Compensation Clause. They did not envision our obsession with regulating every human activity and our insistence that such activities — residential, business, what have you — take place only after a grant of official permission. In some areas of business today, we have almost reached the point at which everything that is not permitted is prohibited. That reverses our Founding principle: everything that is not prohibited is permitted — that is, “freely allowed,” not allowed only after obtaining a government permit.

Homeowners, developers, farmers and ranchers, mining and timber companies, firms large and small, profit seeking and not for profit, all have horror stories about regulatory hurdles they confront when they want to do something, particularly with real property. Many of those regulations are legitimate, of course, especially if they aim, preemptively, at securing genuine rights. But many more are aimed at providing some citizens with benefits at the expense of other citizens. They take rights from some to benefit others. At the federal level, such transfers are not likely to find authorization under any enumerated power. But even if constitutionally authorized, they need to be undertaken in conformity with the Takings Clause. Some endangered species, to take a prominent modern example, may indeed be worth saving, even if the authority for doing so belongs to states, and even if the impetus comes from a relatively small group. We should not expect a few property owners to bear all the costs of that undertaking, however. If the public truly wants the habitat for such species left undisturbed, let it buy that habitat or, failing that, pay the costs to the relevant owners of leaving their property unused.

In general, then, Congress should review the many federal regulations affecting private property to determine which are and are not authorized by the Constitution. If not authorized, they should be rescinded, which would end quickly a large body of regulatory takings now in place. But if authorized under some constitutionally enumerated power of Congress, the costs now imposed on particular owners, for benefits conferred on the public generally, should be placed “on budget.” Critics of doing that are often heard to say that if those goods did go on budget, we couldn’t afford them. What they are really saying, of course, is that taxpayers would be unwilling to pay for all the things the critics want. Indeed, the great fear of those who oppose taking a principled approach to regulatory takings is that once the public has to pay for the benefits it now receives “free,” it will demand fewer of them. It should hardly surprise that when people have to pay for something they demand less of it.

It is sheer pretense, of course, to suppose that such benefits are now free, that they are not already being paid for. Isolated owners are paying for them, not the public. As a matter of simple justice, Congress needs to shift the burden to the public that is enjoying the benefits. Once we have an honest, public accounting, we will be in a better position to determine whether the benefits thus produced are worth the costs. Today, we have no idea about that because all the costs are hidden. When regulatory benefits are thus “free,” the demand for them, as we see, is all but infinite.

But in addition to eliminating, reducing, or correcting its own regulatory takings — in addition to getting its own house in order — Congress needs to enact general legislation on the subject of takings that might help to restore respect for property rights and reorient the nation toward its own first principles. To that end, Congress should do the following.

Enact Legislation That Specifies the Constitutional Rights of Property Owners under the Fifth Amendment’s Takings Clause

As already noted, legislation of the kind recommended here would be unnecessary if the courts were reading and applying the Takings Clause properly. Because they are not, it falls to Congress to step in. Still, there is a certain anomaly in asking Congress to do the job. Under our system, after all, the political branches and the states represent and pursue the interests of the people within the constraints established by the Constitution; and it falls to the courts, and the Supreme Court in particular, to ensure that those constraints are respected. To do that, the Court interprets and applies the Constitution as it decides cases brought before it — often against the political branches or a state when an owner seeks either to enjoin a government action on the ground that it violates his rights or to obtain compensation under the Takings Clause, or both. Thus, it is somewhat anomalous to ask or expect Congress to right wrongs that Congress itself may be perpetrating. Is not Congress, in carrying out the public’s will, simply doing its job?

Yes, that is part of its job. But members of Congress swear to uphold the Constitution, which requires them to exercise independent judgment about the meaning of its terms. And in that connection, they need to recognize that we do not live in anything like a pure democracy. The Constitution sets powerful and far‐​reaching restraints on the powers of all three branches of the federal government and, especially since ratification of the Civil War Amendments, on the states as well. Thus, the idea that Congress simply enacts whatever some transient majority of the population wants enacted, leaving it to the courts to determine the constitutionality of its acts, must be resisted. The oath of office is taken on behalf of the people, to be sure, but through and in conformity with the Constitution. Even if the courts fail to secure the liberties of the people, therefore, nothing in the Constitution prevents Congress from exercising the duties entailed by the oath of office. In fact, that oath requires Congress to step into the breach.

There is no guarantee, of course, that Congress will do a better job of interpreting the Constitution than the Court has done. In fact, given that Congress is one of the political branches and thus an “interested” party, it could very well do a worse job. That is why the Framers placed “the judicial Power” — entailing, presumably, the power ultimately to say what the law is — with the Court, the nonpolitical branch. But that is no reason for Congress to ignore its responsibility to make its judgment known, especially when the Court is clearly wrong, as it is here. Although nonpolitical in principle, the Court does not operate in a political vacuum — as it demonstrated in 1937, unfortunately, after Franklin Roosevelt’s notorious Court‐​packing threat. If the Court can be persuaded to undo the centerpiece of the Constitution, the doctrine of enumerated powers, as it did after that extraordinary and unconscionable political interference, one imagines it can be persuaded by Congress to restore property rights to their proper constitutional status.

Thus, to start, Congress should revisit and rescind or correct legislation that results in uncompensated regulatory takings — and enact no such legislation in future. In addition, however, Congress should enact a more general statute that specifies the constitutional rights of property owners under the Fifth Amendment’s Takings Clause, drawing on common law principles to do so.

Follow the Traditional Common Law in Defining “Private Property,” “Public Use,” and “Just Compensation”

As we saw above, property rights are not protected by the Fifth Amendment’s Takings Clause alone — that is, by positive constitutional law. Indeed, during the more than two years between the time the Constitution was ratified and took effect and the time the Bill of Rights was ratified, it was the common law that protected property rights against both private and public invasion. Thus, the Takings Clause simply made explicit, against the new federal government, the guarantees that were already recognized under the common law. (Constitutional protection was implicit during that time, of course, through the doctrine of enumerated powers, for no uncompensated takings were authorized under the new Constitution.) And with the ratification of the Civil War Amendments — the Fourteenth Amendment’s Privileges or Immunities Clause, in particular — the common law guarantees against the states were constitutionalized as well. Thus, because the Takings Clause takes its inspiration and meaning from the common law of property, it is there that we must look to understand its terms.

“Private property.” The first of those terms is “private property”: “nor shall private property be taken for public use without just compensation.” As every first‐​year law student learns, “private property” means far more than a parcel of real estate. Were that not the case, property law would indeed be an impoverished subject. Instead, the common law reveals the many significations of the concept “property” and the rich variety of arrangements that human imagination and enterprise have made of the basic idea of private ownership. As outlined above, however, those arrangements all come down to three basic ideas — acquisition, exclusive use, and disposal, the three basic rights we have in property, from which more specifically described rights may be derived.

With regard to regulatory takings, however, the crucial thing to notice is that, absent contractual arrangements to the contrary, the right to acquire and hold property entails the right to use it as well. As Madison wrote, people have “a property” in their rights, including in their rights of use. If the right to property did not entail rights of use, it would be an empty promise. People acquire property, after all, only because doing so enables them to use it, which is what gives it its value. Indeed, the fundamental complaint about uncompensated regulatory takings is that, by thus eliminating some or all of the uses owners may make of their property, government makes the title they retain that much less valuable — even worthless in extreme cases. Who would buy property that cannot be used?

The very concept of “property” therefore, entails and denotes all the legitimate uses that can be made of the underlying estate, giving it value. And the uses that are legitimate are those that can be exercised consistent with the rights of others, private and public alike, as defined by the traditional common law. As outlined above, however, the rights of others that limit an owner’s uses depend often on the facts. Thus, legislation can state only the principle of the matter, not its application in specific contexts. Still, the broad outlines should be made clear in any congressional enactment. In particular, the term “private property” should be defined to include all the uses that can be made of property consistent with the common law rights of others. The only grounds that justify restricting uses without compensation are (1) to protect the rights of others; and (2) to provide narrowly defined “public goods,” where owners receive public benefits equivalent to the losses incurred by regulation. By contrast, when a particular owner’s uses are restricted to provide the general public with goods more broadly defined, the resulting loss in value should be compensated.

“Public use.” Turning now from regulatory takings to the full use of eminent domain, here the government condemns the entire property and takes title in order to give the property a “public use” — a military base, for example, or a public school or highway. Unfortunately, governments today too often use eminent domain for much broader purposes, and courts have sanctioned such condemnations by reading “public use” as “public benefit.” That has led to private‐​public collusion against private rights as governments condemn private property for the benefit of other private users, either directly or by delegating their condemnation power to a quasi‐​public or even a private entity. Those are rank abuses of the eminent domain power, amounting often to implicit grants of private eminent domain and to invitations to public graft and corruption. Typically, when a large private entity wants to expand, it goes to the relevant public agency and asks that a nearby property be condemned and title transferred to it, arguing that the expansion will benefit the public through increased jobs, business, taxes, what have you. No longer needing to bargain with the owners of the target properties in an effort to buy them, the entity simply asks or even pays the agency to condemn the properties “for the public good.”

Because eminent domain is a “despotic power,” it should be used rarely and only for genuinely public uses. That means uses that are broadly enjoyed by the public, rather than by some narrow part of the public; and in the case of the federal government, it means a constitutionally authorized use. In defining “public use,” however, facts matter, and sometimes there is no bright line. Nevertheless, certain general considerations can be noted. To begin, if the compensation is just, then no problem arises when title is transferred to the public for a genuine public use such as those mentioned above. Nor is there a problem when title is transferred to a private party — for example, to avoid the holdout situation that might arise with laying cable or telephone lines — provided the subsequent use is open to all on a nondiscriminatory basis, often to be regulated in the public interest. In such cases, were eminent domain available only when the public kept the title, the public would be deprived of the relative efficiencies of private ownership.

Beyond such cases, however, the public use restriction on employing eminent domain looms ever larger. Thus, condemnation for “blight reduction,” often a ruse for transferring title to a private developer, sweeps too broadly. If the “blighted” property constitutes an actual nuisance, it can be condemned under the police power, after all, without transferring title to another owner. A close cousin to the blight reduction rationale is the “economic development” rationale used in the infamous Kelo case and often used for the erection of privately owned sports stadiums; this rationale should never be allowed, whatever the claimed public benefit. Private economic development nearly always generates spillover benefits for the public, but that is no justification for using eminent domain. since private markets provide ample opportunities for obtaining the property needed for development the right way, by voluntary agreement. To avoid abuse and the potential for corruption, therefore, Congress needs to define “public use” rigorously, with reference to titles, use, and control.

“Just compensation.” Finally, Congress should define “just compensation” with an eye to its function: it is a remedy for the wrong of taking someone’s property. That the Constitution implicitly authorizes that wrong does not change the character of the act, of course. As discussed above, the rationale for this despotic power, even when properly used, is problematic. Given that, the least the public can do is make the victim of its use whole. That too will be a fact‐​dependent determination, but Congress should at least make it clear that for compensation to be “just” and hence to make the owner whole, he must receive more than the “market value” of his property, the normal standard today. After all, the simple fact that the owner does not have his property on the market indicates that its value to him is greater than the market price. Moreover, his compensation should reflect the fact that his loss arises not by mere accident, as with torts, but from a deliberate decision by the public to force him to give up his property.

In the case of regulatory takings, however, it should be noted that not every such taking will require compensation for an owner. Minimal losses, for example, may be difficult to prove and not worth the effort. Moreover, some regulatory restrictions may actually enhance the value of property — say, if an entire neighborhood is declared “historic.” Finally, that portion of “just compensation” that concerns market value should reflect value before, and with no anticipation of, regulatory restrictions. Thus, in determining compensation, government should not benefit from reductions in value its regulations bring about. Given the modern penchant for regulation, that may not always be easy. But in general, given the nature of condemnation as a forced taking, any doubt should be resolved to the benefit of the owner forced to give up his property.

If Congress enacts general legislation that outlines the constitutional rights of property owners by following the common law in defining the terms of the Takings Clause, it will abolish, in effect, any real distinction between partial and full takings. Nevertheless, Congress should be explicit about what it is doing.

Treat Property Taken through Regulation the Same As Property Taken through Physical Seizure

The importance of enacting a unified and uniform takings law cannot be overstated. Today, we have one law for “full takings,” “physical seizures,” “condemnations” — call them what you will — and another for “partial takings,” “regulatory seizures,” or “condemnations of uses.” Yet there is overlap, too. Thus, as noted above, the Court has said that if regulations take all uses, compensation is due — perhaps because eliminating all uses comes to the same thing, in effect, as a “physical seizure,” whereas eliminating most but not all uses seems not to come to the same thing.

That appearance is deceptive, of course. In fact, the truth is much simpler — but only if we go about discovering it from first principles. If “property” signifies not only the underlying estate but all legitimate uses that by right can be made of it, then any government action that takes any one of those uses or rights is, by definition, a taking — requiring compensation for any financial losses the owner may suffer as a result. The issue is really no more complicated than that. There is no need to distinguish “full” and “partial” takings: every condemnation, whether full or partial, is a taking. Indeed, the use taken is taken “in full.” Imagine that the property were converted to dollars — 100 dollars, say. Would we say that if the government took all 100 dollars there was a taking, but if it took only 50 of the 100 dollars there was not a taking? Of course not. Yet that is what we say under the Court’s modern regulatory takings doctrine: as one justice put it, “takings law is full of these ‘all‐​or‐​nothing’ situations.”

That confusion must end. Through legislation specifying the rights of property owners, Congress needs to make it clear that compensation is required whenever government eliminates common law property rights and an owner suffers a financial loss as a result — whether the elimination results from regulation or from outright condemnation.

Provide a Single Forum in Which Property Owners May Seek Injunctive Relief and Just Compensation Promptly

The promise of the common law and the Constitution will be realized, however, only through procedures that enable aggrieved parties to press their complaints. Some of the greatest abuses today are taking place because owners are frustrated at every turn in their efforts to reach the merits of their claims. Accordingly, Congress should provide a single forum for owners to press their claims.

In its 1998 term, the Supreme Court decided a takings case that began 17 years earlier, in 1981, when owners applied to a local planning commission for permission to develop their land. After submitting numerous proposals over this period, each rejected, even though each satisfied the commission’s previous recommendation, the owners finally sued, at which point they faced the hurdles the courts put before them. Most owners, of course, cannot afford to go through such a long and expensive process, at the end of which the odds are still against them. But that process confronts property owners across the nation today as they seek to enjoy and then to vindicate their rights. If it were speech or voting or any number of other rights, the path to vindication would be smooth by comparison. But property rights have been relegated to a kind of second‐​class status.

The first problem is the modern permitting regime. We would not stand for speech or religion or most other rights to be enjoyed only by permit. Yet that is what we do with property rights, which places enormous, often arbitrary, power in the hands of federal, state, and local “planners.” Driven by political goals and considerations, planning commissions open the application forum not only to those whose rights might be at stake but to those with interests in the matter. Thus is the common law distinction between rights and interests blurred and eventually lost. Thus is the matter transformed from one of protecting rights to one of deciding whose “interests” should prevail. Thus are property rights effectively politicized. And that is the end of the matter for most owners because that is as far as they can afford to take it.

When an owner does take it further, however, he finds the courts are often no more inclined to hear his complaint than was the planning commission. Federal courts routinely abstain from hearing federal claims brought against state and local governments, requiring owners to litigate their claims in state courts before they can even set foot in a federal court on their federal claims. Moreover, the Supreme Court has held that an owner’s claim is not ripe for adjudication unless (1) he obtains a final, definitive agency decision regarding the application of the regulation in question, and (2) he exhausts all available state compensation remedies.

Needless to say, planners, disinclined to approve applications to begin with, treat those standards as invitations to stall until the “problem” goes away. Then, if an owner does spend years and extraordinary expense jumping through those hoops and he gets into federal court at last, he faces the res judicata restriction of the federal Full Faith and Credit Act: the court will say that the case has already been adjudicated by the state courts. Finally, if the claim is against the federal government, the owner faces the so‐​called Tucker Act Shuffle: he cannot get injunctive relief and compensation from the same court but must go to a district court for an injunction and to the Court of Federal Claims for compensation, each waiting upon the other to act.

The 105th and 106th Congresses tried to address those procedural hurdles through several measures, none of which passed both houses. Those or similar measures must be revived and enacted if the unconscionable way we treat owners — who are simply trying to vindicate their constitutional rights — is to be brought to an end. This is not an “intrusion” on state and local governments. Under the Fourteenth Amendment, properly understood and applied, those governments have no more right to violate the constitutional rights of citizens than the federal government has to intrude on the legitimate powers of state and local governments. Federalism is not a shield for local tyranny. It is a brake on tyranny, whatever its source.

Conclusion

The Founders would be appalled to see what we have done to property rights over the course of the 20th century. One would never know today that their status in the Bill of Rights was equal to that of any other right. The time has come to restore respect for these most basic of rights, the foundation of all of our rights. Indeed, despotic governments have long understood that if you control property, you control the media, the churches, the political process itself. We are not, of course, at that point yet. But if regulations that provide the public with benefits continue to grow, unchecked by the need to compensate those who bear the costs, we will gradually slide to that point — and in the process we will pay an increasingly heavy price for the uncertainty and inefficiency we create. The most important price, however, will be to our system of law and justice. Owners are asking simply that their government obey the law — both the common law and the law of the Constitution. Reduced to its essence, they are saying simply this: stop stealing our property; if you must take it, do it the right way — pay for it. That hardly seems too much to ask.

Suggested Readings

Bethell, Tom. The Noblest Triumph: Property and Prosperity through the Ages. New York: St. Martin’s, 1998.

Coyle, Dennis J. Property Rights and the Constitution: Shaping Society through Land Use Regulation. Albany: State University of New York Press, 1993.

DeLong, James V. Property Matters: How Property Rights Are under Assault‐​And Why You Should Care. New York: Free Press, 1997.

Eagle, Steven J. “The Birth of the Property Rights Movement.” Cato Institute Policy Analysis no. 558, December 15, 2005.

—. Regulatory Takings. Charlottesville, VA: Michie Law Publishers, 1996.

Ely, James W. Jr. The Guardian of Every Other Right: A Constitutional History of Property Rights. 2d ed. New York: Oxford University Press, 1998.

—. “Poor Relation” Once More: The Supreme Court and the Vanishing Rights of Property Owners.” 2004–2005 Cato Supreme Court Review, 2005.

Epstein, Richard A. Supreme Neglect: How to Revive Constitutional Protection for Private Property. New York: Oxford University Press, 2008.

—. Takings: Private Property and the Power of Eminent Domain. Cambridge, MA: Harvard University Press, 1985.

Locke, John. “Second Treatise of Government.” In Two Treatises of Government. Edited by Peter Laslett. New York: Mentor, 1965.

Madison, James. “Property.” In National Gazette, March 29, 1792. Reprinted in The Papers of James Madison, vol. 14, 6 April 1791–16 March 1793. Edited by Robert A. Rutland et al. Charlottesville: University Press of Virginia, 1983.

Pilon, Roger. “The Constitutional Protection of Property Rights: America and Europe.” Progress Foundation (Zurich). June 13, 2007.

—. “Property Rights, Takings, and a Free Society.” Harvard Journal of Law and Public Policy 6 (1983).

Pipes, Richard. Property and Freedom: How through the Centuries Private Ownership Has Promoted Liberty and the Rule of Law. New York: Alfred A. Knopf, 1999.

Sandefur, Timothy, and Christina Sandefur. Cornerstone of Liberty: Property Rights in Twentieth Century America. Washington: Cato Institute, 2016.

Siegan, Bernard H. Property and Freedom: The Constitution, the Courts, and Land‐​Use Regulation. New Brunswick, NJ: Transaction Press, 1997.

Siegan, Bernard H., ed. Planning without Prices: The Takings Clause As It Relates to Land Use Regulation without Just Compensation. Lexington, MA: Lexington Books, 1977.

Somin, Ilya. The Grasping Hand: “Kelo v. City of New London” and the Limits of Eminent Domain. Chicago: University of Chicago Press, 2015.

cited https://www.cato.org/cato-handbook-policymakers/cato-handbook-policy-makers-8th-edition-2017/property-rights-constitution#suggested-readings

download a complete Cato Handbook for Policymakers 8th Edition here
or from original mirrored source here

 

 

 

 

 

 

Statewide Rent Control in California

California’s Tenant Protection Act of 2019 (the Act) implemented statewide rent and eviction control laws that affect most residential tenancies in the state. The Act caps rent increases statewide for qualifying units at 5% plus inflation, or 10% of the lowest gross rental rate charged at any time during the 12 months prior to the increase-whichever is lower. Additionally, landlords can raise rent only once over any 12 month period.

California also allows cities and counties to enact local rent control laws. The Act does not override more restrictive local rent control laws, but does override those that are less restrictive. Also, local rent control laws might apply to rental properties that the Act does not cover.


California Rental Application and Tenant Screening Laws

Can California landlords charge an application fee?

Yes. Landlords in California may charge a nonrefundable application fee that is no greater than their actual out-of-pocket costs for things such as screening services and the reasonable value of time spent by the landlord or an agent in obtaining information about the applicant. The application screening fee cannot exceed $30, adjusted annually with an increase in the Consumer Price Index, beginning on January 1, 1998. (As of 2021, the maximum application fee a California landlord can charge is approximately $52.) Landlords cannot charge an application screening fee if there is no current vacancy. Landlords must also provide applicants with a receipt itemizing the landlord’s out-of-pocket expenses and time spent obtaining and processing the application. For more details, see the Nolo article California Law on Tenant Application Screening Fees and Credit Reports.

Can California landlords ask about an applicant’s criminal history?

It depends. Some counties and cities (Oakland, for example) prohibit landlords from asking about an applicant’s criminal history and running a criminal background check.

Even if the city or county where the rental is located does not prohibit landlords from considering applicants’ criminal histories, landlords must be careful. When landlords consider applicants’ criminal history, they must do so in a consistent, nondiscriminatory manner. If a landlord’s practice of considering criminal history has a discriminatory effect—for example, if the landlord asks only applicants of a certain color for criminal history information—the landlord is engaging in illegal discrimination and can be subject to penalties. Also, landlords can reject applicants only for past convictions that are “directly-related” to the application—in other words, convictions that have a negative bearing on a legitimate business concern of the landlord. See the California Department of Fair Employment and Housing’s information sheet on fair housing and criminal history for more information.


California Security Deposit Laws

What is the maximum security deposit a California landlord can charge?

California landlords can charge no more than two months’ rent as a security deposit for unfurnished rentals. For furnished rentals, the maximum security deposit increases to three months’ rent. If the tenant is an active service member, the landlord can charge no more than one month’s rent for an unfurnished rental and no more than two month’s rent for a furnished rental. If the tenant plans to have a waterbed in the rental, the landlord can add one-half month’s rent on to the security deposit.

Do California landlords have to pay interest on security deposits?

No state law requires landlords to pay interest on security deposits. However, local laws (those passed by a city or county) might require interest.

Can California landlords charge nonrefundable cleaning fees? Pet fees?

No. All cleaning fees and pet fees are considered to be part of the security deposit, and the total of any fees—whether they are called pet fees, cleaning fees, or a security deposit—must be no more than the applicable security deposit maximum. These fees are refundable under the same rules that apply to security deposits in general. Note that some landlords might charge an additional pet rent—this is not considered a deposit or pet fee.

How long do California landlords have to return a security deposit?

California landlords have 21 calendar days (see Cal. Code of Civ. Pro. sections 12 and 12a for help calculating deadlines) after the tenant has vacated the premises to provide the tenant with an itemized statement indicating the amount of and use of the security deposit and to return any remaining portion of the security deposit.

For more details about California security deposit laws, see Nolo’s article California Security Deposit Limits and Deadlines.


Required Landlord Disclosures in California

Under state law, California landlords must disclose specific information to tenants (usually in the lease or rental agreement), such as whether the gas or electricity in the tenant’s rental also serves other areas and information about toxic mold if the landlord knows that mold on the property exceeds exposure limits or poses a threat to the tenant’s health.

For details on disclosures that California landlords must make, please see Nolo’s article What Disclosures Do Landlords in California Need to Give Tenants?


Small Claims Lawsuits in California

What is the limit a landlord or tenant can sue for in California small claims court?

Individuals can sue in California small claims court up to a dollar amount of $10,000, except that a plaintiff (the party who is suing) cannot file a claim over $2,500 more than twice a year. Businesses cannot sue for more than $5,000 in California small claims court. Until February 1, 2025, small claims courts in California can hear claims for COVID-related rental debt of any amount.

See Filing a Security Deposit Lawsuit in California Small Claims Court for advice for tenants filing suit. Landlords defending a security deposit lawsuit should check out California Landlord’s Guide to Security Deposit Disputes in Small Claims Court.


California Late Fees and Other Rent Rules

California law regulates several rent-related issues, including late and bounced-check fees, the amount of notice landlords must give tenants to raise the rent, and how much time a tenant has to pay rent or move before a landlord can file for eviction.

Is there a grace period for paying rent in California?

No, California landlords are not required to give tenants a rent payment grace period. Rent is due on the date specified in the lease or rental agreement, and a landlord can consider it late if it is not paid on that date. However, if the lease or rental agreement gives the tenant a grace period for paying rent, the landlord must honor it, and cannot consider rent to be late until after the grace period has passed.

How long does a landlord have to wait after a tenant is late with rent before filing an eviction suit?

When a tenant is late with rent, the landlord cannot file an eviction suit until the landlord has given the tenant a properly written and served three-day notice to pay rent or quit. The three days does not include Saturdays, Sundays, and other judicial holidays. If the tenant does not pay the rent owed or move out within those three days, the landlord can file an eviction lawsuit.

Can California landlords charge tenants a fee for bounced checks?

Yes. California law allows landlords to charge tenants $25 for the first bounced check, and $35 for each additional bounced check.

Can California landlords require tenants to pay rent in cash?

In some circumstances, yes—California landlords can require their tenants to pay rent in cash only when the tenant has given the landlord a check that bounced or placed a stop payment on a check within the past three months. When a landlord chooses to require cash payment, the landlord must give the tenant a written notice stating that the payment did not go through and informing the tenant that the rent must be paid in cash for a certain period (the period cannot be more than three months). The landlord must also attach a copy of the bad check or other type of instrument to the notice.

Can California landlords charge tenants late rent fees?

Yes, California landlords can charge tenants a fee for paying rent late. However, the late fee must be a reasonable estimate of the cost that the landlord incurs because the rent is late (for example, any interest or collection costs), and the lease or rental agreement must include specific information about late fees.

Can California landlords raise the rent?

Yes, but subject to any applicable state and local rent control rules. California has statewide rent control that applies to certain rentals. Cities and counties in California can also enact their own rent control rules. Landlords must comply with these rules regarding how, when, and by how much they can raise the rent.

For details, see California Late Fees, Termination for Nonpayment of Rent, and Other Rent Rules.


Tenant Rights to Withhold Rent in California

California landlords are legally required to offer and maintain habitable rentals. Tenants may withhold rent, move out without notice, sue the landlord, call state or local health inspectors, or exercise the right to “repair and deduct” if a landlord fails to take care of important repairs, such as a broken heater. For specifics, see California Tenant Rights to Withhold Rent or “Repair and Deduct”.

Can California tenants withhold rent when a landlord doesn’t make repairs?

Yes, California tenants can withhold rent when a landlord doesn’t maintain habitable (livable) premises. There must be a true habitability problem that imperils health or safety to justify withholding rent. And, the problem must not have been caused by the tenant or the tenant’s guest.

Can California tenants make repairs and deduct the cost (use the “repair and deduct” remedy) when a landlord doesn’t make repairs?

Yes, California tenants can use the repair and deduct remedy in certain circumstances. First, the defect must be a serious one that the tenant has attempted—unsuccessfully—to have the landlord fix. The tenant can then fix the problem (either on their own or by hiring a handyperson) and deduct the cost from rent. However, the tenant cannot spend more than one month’s rent on the repair, and the tenant cannot have used the repair and deduct remedy twice already in the past 12 months. The tenant must also adhere to any local rules regarding the repair and deduct remedy.


California Termination and Eviction Rules

State laws specify when and how a landlord may terminate a tenancy. For example, a landlord may give a California tenant who has been assigning or subletting without permission an unconditional quit notice that gives the tenant three days to move out before the landlord can file for eviction.

Failure to pay rent

When a California tenant fails to pay rent on time, the landlord must give the tenant a three-day notice to pay rent or quit (move) before the landlord can file an eviction suit. If the tenant does not pay rent or move out within those three days, the landlord can sue. See State Laws on Termination for Nonpayment of Rent for the relevant statutes.

Lease violation

When a California tenant violates a term of the lease—such as having a pet in violation of a no-pets policy—the landlord must give the tenant a three-day notice to cure (fix the problem) or quit. If the tenant does not fix the problem or move out within those three days, the landlord can sue. See State Laws on Termination for Violation of Lease for the relevant statutes.

Unconditional quit notice

California landlords can give tenants a three-day unconditional quit notice (meaning that the tenant does not have the chance to remedy the problem) when tenants assign or sublet the rental without permission, commit waste or a nuisance, or engage in illegal activity at the rental. See State Laws on Unconditional Quit Terminations for the relevant statutes.


California Rules About Landlords’ Access to Property

In all states, even in the absence of a statute, landlords can enter a rental without giving notice in order to deal with a true emergency (an imminent and serious threat to health, safety, or property); and when the tenant has abandoned the property (left for good). California law also addresses when and how landlords can enter rental property in non-emergency situations.

How much notice does a California landlord have to give a renter before entering the rental?

California landlords must give reasonable notice before entering a rental to inspect or make (non-emergency) repairs. 24 hours is presumed to be reasonable for most matters; 48 hours is presumed reasonable for the initial move-out inspection.

Does a landlord’s entry notice need to be in writing?

Yes, in California landlords must give written notice before entering a rental for non-emergency matters.


Other California Landlord-Tenant Laws

Several other landlord-tenant laws in California affect both property owners and renters, including:


Where to Find California Landlord-Tenant Statutes

If you want to read the text of a law itself, such as state security deposit rules, start by checking citations for California landlord-tenant statutes. To access the statutes themselves, see the state section of the Library of Congress’s legal research site. You can search the table of contents for the landlord-tenant statutes. Or, if you don’t know the exact statute number, you can enter a keyword that is likely to be in it, such as “nonpayment of rent.” You’ll find citations for many of the specific statutes themselves in the relevant California articles (see links, above) on the Nolo site.


Local Ordinances Affecting California Landlords and Tenants

Cities and counties often pass local ordinances, such as rent control rules, health and safety standards, noise and nuisance regulations, and anti-discrimination rules that affect landlords and tenants. Many municipalities have websites —just search for the name of a particular city in California and then do a search when you’re on the site. For example, if you search for the noise ordinance in the City of San Francisco website, you’ll easily find information about what tenants can do regarding noise problems.

State and Local Government on the Net and Municode (click on “Code Library” in the main menu) are good sources for finding local governments online. Also, your local public library or office of the city attorney, mayor, or city or county manager can provide information on local ordinances that affect landlords and tenants in California.


Federal Landlord-Tenant Laws and Regulations

Congress and federal agencies, such as the U.S. Department of Housing and Urban Development (HUD) and the U.S. Environmental Protection Agency (EPA), have enacted laws and regulations that apply to the landlord-tenant relationship in California. These laws and regulations address topics such as discrimination and landlord responsibilities to disclose environmental health hazards, such as lead-based paint.

The U.S. Code is the starting place for most federal statutory research. It consists of 53 separate numbered titles, each covering a specific subject matter. Most federal regulations are published in the Code of Federal Regulations (“CFR”). To access the U.S. Code and Code of Federal Regulations online, see the federal section of the Library of Congress’s legal research site.


Nolo Resources on Legal Research and Landlord-Tenant Law

For more information on legal research, check out Legal Research: How to Find & Understand the Law, by Stephen Elias (Nolo). This nontechnical book gives easy-to-use, step-by-step instructions on how to find legal information.

You’ll also find a wealth of information in The California Landlord’s Law Book: Rights & Responsibilities and California Tenants’ Rights.


Types of Rentals Not Covered by California Residential Landlord-Tenant Law

Special rules may apply if you rent a “floating home,” such as a house boat in a marina or a mobile home. You’ll need to do your own legal research and check out state laws such as the Floating Home Residency Law (Cal. Civ. Code §§ 800-800.306) or Mobile Home Residency Law (Cal. Civ. Code §§ 798-799.11).

California Civil Code section 1940 lists other types of occupancies that are exempt from the state’s residential landlord-tenant laws. These include transient occupancy in a hotel, motel, residence club, or other facility, and occupancy in a hotel or motel where the innkeeper retains a right of access to and control of the dwelling unit, among others.

cited https://www.nolo.com/legal-encyclopedia/overview-landlord-tenant-laws-california.html


Epic SCOTUS Decisions click here