New Article: Rent Regulations After Cedar Point

New Article: Abigail Flanigan, Rent Regulations After Cedar Point, Colum. L. Rev. (2022, forthcoming). Abstract below:

In 2021, the Supreme Court decided Cedar Point Nursery v. Hassid, 141 S. Ct. 2063 (2021), a landmark case that established a new categorical rule in takings law: When the government enacts a regulation authorizing a temporary invasion of a property owner’s land, it effects a per se taking under the Fifth Amendment for which it must pay just compensation. By examining the interaction of this holding with legal challenges to New York’s Housing Stability and Tenant Protection Act (HSTPA) of 2019, this Note explores the implications of this decision for rent regulation legislation.

This Note considers alternative analytical paths a court considering a constitutional challenge to rent regulation legislation could pursue in the wake of Cedar Point. Under the maximalist approach, the court could find that the HSTPA infringes on the landlord’s “right to exclude” and is thus a compensable taking. Under the minimalist approach, the court could apply one of the Cedar Point exceptions to uphold the HSTPA as constitutional. Ultimately, this Note argues that the maximalist approach is at odds with precedent, endangers anti-discrimination housing laws, and hampers the government’s ability to make housing more economically accessible for citizens who may not otherwise have access to adequate shelter, and concludes that courts should apply an expansive reading of the Cedar Point exceptions to rent regulation legislation like the HSTPA.