PROPERTY RIGHTS OR OBSTACLES TO PROGRESS?: THE FUNDAMENTAL FLAWS IN TAKINGS JURISPRUDENCE

Authors

Liam Higgins

Abstract

New York boasts some of the strongest protections for tenants out of all jurisdictions throughout the country. Chief among these laws is the state Rent Stabilization Law (“RSL”). Among other protections, the RSL has limited excessive rent increases on regulated apartments, granted tenants a right of renewal so that they could remain in their homes, and permitted family members to take over the tenancy of their loved ones upon their passing. The RSL has been amended several times throughout its history, each time providing more or less protections depending on the administration at the time. Recently, in 2019, the New York State Legislature passed the Housing Stability and Tenant Protection Act (“HSTPA”), a comprehensive reform act which brought back several key provisions of the RSL that had been dismantled by previous administrations. In response to the restored protections, several landlord groups challenged core provisions of the RSL as both regulatory and per se physical takings. This Note explores the history and jurisprudence of both regulatory and per se physical takings in order to make sense of the “muddled” doctrine behind these concepts, applies takings precedents to the challenged provisions of the RSL, and discusses the dangerous policy implications of the Court’s prioritization of wealthy landowners’ property rights over the general welfare. Ultimately, this Note advocates for eliminating regulatory and per se physical takings outside of a highly limited set of circumstances, and proposes a two-part, deferential due process test for evaluating when regulations affecting property rights are constitutional.

Recommended Citation

Liam Higgins, PROPERTY RIGHTS OR OBSTACLES TO PROGRESS?: THE FUNDAMENTAL FLAWS IN TAKINGS JURISPRUDENCE, 33 J. L. & Pol'y 233 (2024).
Available at: https://brooklynworks.brooklaw.edu/jlp/vol33/iss1/9