Hundreds of thousands of businesses have shut down all across the country due to the pandemic. Some may never reopen. For those owners who have been able to escape a full shut down, many still face severe limits on occupancy levels and hours of operation. The impact on the economy has been tremendous.

Most people understand the need to exercise reasonable police and regulatory powers over private property rights in order to keep citizens safe. But harder to explain or accept is the seemingly arbitrariness of government decisions that allow certain establishments to remain open while others must shutter.

Large retailers, for instance, are mostly allowed to remain open, while small mom and pop operators are not. Bars must close, but restaurants serving alcohol are sanctioned. Least we think the United States is alone in wrestling with the issue of what is and is not an w, in Belgium chocolate shops are considered vital to the economy, and thus open for business.

If people can’t pay their rent due to circumstances beyond their control, what’s wrong with placing a moratorium on evictions, you might ask. But remember that landlords have financial obligations as well. Particularly smaller landlords—obligations on their own mortgages, to lending institutions, etc. So it’s complicated.

Early on in the pandemic, when hospitals and other emergency facilities appeared inadequate to address the number of anticipated COVID-19 patients, some property owners were forced to give up their property for the good of the community.  But in situations like these most jurisdictions recognize the need for payment. Physical takings of property almost always require just compensation to the property owner under the Takings Clause.

One thing we can be certain of: All of these actions have led to a significant number of lawsuits being filed in the United States, as litigants seek to test just how far Governors and State Legislators can go in exercising emergency and police powers to combat the pandemic.

A website that tracks all lawsuits filed as a result of the pandemic estimates thousands of complaints thus far. While judicial decisions involving property rights mostly favor the government, there have been a few outliers. Courts seem more willing to invalidate actions that are unequally enforced, resulting in disparate treatment to persons similarly situated, or are just plain arbitrary and capricious.

When this health crisis is over, there will be time to digest the impact that police power actions have had on property rights and the overall economy, and to consider what things could have been done differently to lessen the toll.

But for now, if you are facing an assault on your private property rights due to the pandemic, make sure to reach out to a professional attorney experienced in such matters to determine what you can do to protect and defend yourself. 

 About the Author

Lauren Alexander is the Content Marketing Strategist for Owners’ Counsel of America, a network of experienced eminent domain attorneys dedicated to defending the rights of private property owners across the US. OCA’s members are leading condemnation lawyers that represent landowners against local and state governments, transportation departments, utilities, energy companies, redevelopment authorities, the Federal government, and any other agency that may be armed with the power of eminent domain.

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