No Equal Justice for Landlords

The Virginia State Supreme Court extended yesterday the judicial moratorium on eviction proceedings for another 28 days. 

While it is VA, the arguments apply universally.

https://www.baconsrebellion.com/wp/no-equal-justice-for-landlords/

Justice Kelsey finds the following faults with the majority’s approach:

• The judicial-emergency statute exists to help folks who can’t avail themselves of the courts, or to meet schedules or time deadlines. He concludes that “Exactly the opposite will be true under this ex parte order” (italics his). This order impedes a landlord’s access to the courts, even while the courts are capable of adjudicating their claims. The majority cited tenants who might suffer from health conditions that prevent them from coming to court. This dissent calls that an unwarranted generalization, one that landlords are powerless to contest on a factual basis in each case.

• The legislature passed in April a bill that provides relief to tenants facing evictions, giving them an of-right 60-day continuance. That provision lasts as long as the Governor’s declaration of emergency does, so as Justice Kelsey points out, it’s still in effect. By entering this order, the court has stepped into the legislative and executive arena. He concludes, “Whether this legislative response to the housing crisis is adequate or not, we have no authority under separation-of-powers principles to issue an ex parte judicial order expanding the statutory remedy.”

• Next, the dissent points out that this order singles out and targets one type of litigant: landlords. And it deprives those landlords of a remedy while doing nothing to prevent a tenant, even one who hasn’t paid rent since March, from suing the landlord for breach of some lease provision. Justice Kelsey argues that the order “rests on a wholly untested factual assumption,” namely, that tenants would have paid their rent but for the pandemic. What about those tenants who didn’t lose their streams of income? What about those who received alternative income streams, such as CARES Act payments? They get relief, too, and landlords have to sit on their hands and fume.

• The dissent next notes three “constitutional concerns” that the order ignores. First, no one has the power to suspend the execution of generally applicable laws. But this one does that, hampering landlords to the benefit of tenants, in a specific class of cases. It matters not to Justice Kelsey that the judiciary, rather than the executive, is doing the suspending. Next, he posits something that I’ve mused about: This deprivation of a remedy may be a taking of private property for a public purpose, triggering a landlord’s right under Art. I, section 11 for just compensation. And third, this order at least appears to impair the obligation of contracts.