Has the pandemic put property rights in the crosshairs?


On Aug. 3, amid pressure from members of the Democratic Party’s progressive wing, President Joe Biden announced a new moratorium on evictions after the Centers for Disease Control and Prevention (CDC)’s previous ban expired on July 31. Various commentators promptly weighed in. Some voiced concerns about the fact that the President was pushing a policy that he knew to be likely unconstitutional; others, including National Review’s editorial board drew attention to how this was further indication of the long-standing (and undesirable) trend of executive agencies legislating in place of Congress, and columnists such as W. James Antle III pointed to this as an example of President Biden’s unenviable position of always having to look over his shoulder to appease some of the loudest voices on the progressive left, even if that should come at the cost of moderate governance.

These criticisms are all more than warranted and, in my view, accurate. And this is not even to mention the toll that the eviction moratorium has taken on landlords, many of whom own properties as a second source of income and are now struggling on account of diminished rental earnings, while bills are still accumulating. However, the new eviction ban — and, even more so, some of the overwrought and performative displays that preceded its announcement — should be seen in the context of a growing number of other policies that limit landlords’ abilities to do with their properties as they see fit.

In June New Jersey Gov. Phil Murphy signed into law a measure prohibiting landlords from inquiring about prospective tenants’ criminal histories in initial rental applications, unless they are registered sex offenders or if they “were convicted for making meth in federally-assisted housing.” This law received largely one-sided coverage in the press and won praise from criminal justice reform activists; too few criticized how it limited a landlord’s capacity to act in the best interest of his property. Is it so unreasonable that a landlord might prefer to rent to someone who has stayed on the right side of the law? (Similar laws to the one signed by Gov. Murphy already existed in a number of municipalities, including Washington D.C. and Seattle.) Perhaps even more concerning, though, was a measure passed just days later by the Philadelphia City Council prohibiting landlords from denying prospective tenants based just on credit scores or an eviction that took place more than four years prior. As most in the real estate business know, criminal history, eviction records, and credit scores are some of the primary criteria by which a prospective tenant is reasonably evaluated.

Given the number of Americans who own a small number of rental properties — including, for full disclosure, some members of my own extended family — policies such as these do not only impact large real estate firms.

Proponents of the new eviction moratorium will, of course, retreat to some version of the refrain that “extraordinary times require extraordinary measures.” However, we should be suspect of this line of argument. First of all, officeholders and commentators have been known to throw around the word “crisis” far too liberally in recent months, such as when Chicago Mayor Lori Lightfoot declared in June that racism in her city now constitutes a public health crisis. Second, with employment opportunities returning throughout the country, 70 percent of Americans now having received at least one dose of a COVID-19 vaccine, and the shortest recession in American history now behind us, the time for so-called emergency measures has passed. The fact that some demand their indefinite continuation only confirms the thesis of economist Robert Higgs’s seminal 1987 bookCrisis and Leviathan” that government takes advantage of crises to expand its scope, while seldom returning to pre-crisis levels of involvement once said crisis abates.

Although certain requirements of landlords are surely reasonable, this recent spate of policies goes too far in restricting homeowners’ ability to do as they wish with the properties that are theirs.

When it comes to eviction moratoriums, there are horror stories, such as were covered in The New York Times last month, of being unable to evict disruptive and abusive tenants residing in a landlord’s own home. All the while, much of the rhetoric desperately calling for an extended eviction ban shares the same assumption as the New Jersey law and the proposed Philadelphia ordinance: that government ought to be considerably involved in the arrangements made between landlords and tenants.

At some point the question becomes: Is this house I own even mine?

Erich J. Prince co-founded and runs Merion West (@merionwest), a Philadelphia-based group promoting civil discourse in the age of polarization; he also writes a weekly column at MediaVillage on how the news media covers politics. He previously served as a communications strategist for former North Carolina governor Pat McCrory.

Tags eviction Eviction moratorium Housing Joe Biden Landlord Landlord–tenant law Lori Lightfoot Property law Real estate Real property law renters

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