Criminalizing Property Rights: How Crime-free Housing Ordinances Violate the Fifth Amendment

• Publication year: 2021

Criminalizing Property Rights: How Crime-Free Housing Ordinances Violate the Fifth Amendment

Laura Flint

CRIMINALIZING PROPERTY RIGHTS: HOW CRIME-FREE HOUSING ORDINANCES VIOLATE THE FIFTH AMENDMENT

Abstract

Crime-free housing ordinances allow municipalities to force private landlords to evict tenants who have committed crimes or allowed a guest who has committed a crime into their home, regardless of the tenant's knowledge. These ordinances have proliferated throughout the country since the turn of the century and pose interesting questions about landlord and tenant rights under the Constitution. This Comment explores a new strategy for landlords and tenants attempting to confront these ordinances—challenging them under the Fifth Amendment.

The Supreme Court has recognized two types of takings that are due just compensation under the Fifth Amendment: possessory and regulatory takings. This Comment argues that compulsory evictions, as mandated by crime-free housing ordinances, qualify as possessory and regulatory takings for tenants, but not for landlords. While the landlord's property rights have only been circumscribed because he or she has to find a new tenant and has lost the revenue from the original tenant, the tenant loses all of his or her property rights in the tenant's leasehold estate after eviction under a crime-free housing ordinance. Additionally, government actors may engage in physical invasions to effectuate the eviction and "total taking" of the property. The taking is for the public purpose of reducing and preventing crimes, and the tenant is owed just compensation under the Takings Clause. Compulsory evictions under crime-free housing ordinances are unconstitutional without just compensation under the Fifth Amendment.

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Introduction...........................................................................................1371

I. Crime-free Housing Ordinances and the Fifth Amendment...................................................................................1373

A. The Creation and Reception of Crime-free Housing Ordinances ............................................................................. 1373
B. The Fifth Amendment and Takings......................................... 1379

1. Types of Takings: Possessory and Regulatory ................. 1380

a. Traditional Possessory Takings................................. 1380
b. Regulatory Takings .................................................... 1381

2. The Public Use Requirement............................................ 1384
3. The Just Compensation Requirement ............................... 1385

II. Compulsory Evictions Under Crime-free Housing Ordinances Violate the Fifth Amendment.............................1386

A. The Property Rights of a Landlord and Tenant...................... 1387

1. The Ability to Lease to Whomever One Chooses Is a Property Right .................................................................. 1387
2. A Leasehold Is a Property Right Protected Under the Fifth Amendment .............................................................. 1388

B. There Has Been a Taking for the Tenant, but Not the Landlord, Under a Crime-free Housing Ordinance ............... 1390

1. Compulsory Eviction Under Crime-free Housing Ordinances Qualifies as a Possessory Taking for the Tenant but Not for the Landlord....................................... 1390

a. The Landlord's Property Has Not Been Taken ......... 1391
b. The Tenant's Property Has Been Taken .................... 1392

2. Compulsory Eviction Under Crime-free Housing Ordinances Qualifies as a Regulatory Taking for the Tenant but Not for the Landlord ....................................... 1397

a. There Has Not Been a Regulatory Taking for the Landlord .................................................................... 1398
b. There Has Been a Regulatory Raking for the Tenant ........................................................................ 1402

C. The Taking Was for Public Use and Requires Just Compensation ......................................................................... 1410

Conclusion...............................................................................................1411

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Introduction

Jessica Barron and Kenny Wylie lived in their home in Granite City, Illinois, since 2017.¹ They had a rent-to-own contract with their landlord.² Their landlord was satisfied with their tenancy and had no desire to evict them.³ Unfortunately for the landlord, and for Jessica and Kenny, the law of Granite City did not give him a choice.

In the winter and spring of 2019, Jessica and Kenny allowed their teenage son's friend to sleep on their couch.⁴ This friend was homeless and said that his mother had died,⁵ and winters in that part of Illinois can involve single-digit and negative temperatures.⁶ Kenny is a certified foster parent, and he and his wife have always tried to keep their door open to those in need.⁷

Unbeknownst to the couple, on May 21, 2019, Jessica and Kenny's houseguest burglarized a restaurant.⁸ When Jessica learned of the burglary and realized the teenager was hiding in her home, she contacted the police and had him arrested.⁹ After the arrest, she told the boy not to come back to her house, and he stopped returning.¹⁰ In a perfect illustration of the saying, "No good deed goes unpunished," Jessica and Kenny faced eviction under Granite City's crime-free housing ordinance, which required a landlord to evict any tenant whose guest committed a crime while under that tenant's roof.¹¹ They challenged the ordinance under the Fifth Amendment as applied to the states by the Fourteenth

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Amendment.¹² Fortunately for Jessica and Kenny, under pressure from the lawsuit, the city repealed the crime-free housing ordinance on December 17, 2019.¹³ Future renters in other cities may not be so lucky.

This Comment examines a previously overlooked constitutional challenge to crime-free housing ordinances that the plaintiffs asserted in Barron v. City of Granite City—that the ordinances are unconstitutional without just compensation under the Takings Clause of the Fifth Amendment—and argues that suing under the Takings Clause is a viable option for plaintiffs and advocates hoping to challenge crime-free housing ordinances that affect private landowners and govern their interactions with their tenants. This Comment does not consider crime-free housing ordinances as they apply to federal government housing or crime-free lease terms as negotiated in private rental agreements between landlords and tenants.¹⁴ Instead, it focuses on compulsory evictions implemented and enforced by state and local governments against private landlords, an issue that has not yet reached the Supreme Court and is being litigated at the state and federal court levels.

Part I of this Comment explains the evolution of crime-free housing ordinances and the Fifth Amendment. Part II is divided into three main sections. Section A focuses on the property rights of the landlord and tenant, arguing that both have valid property rights that can be subject to takings under crime-free housing ordinances. Section B explores the main question of this Comment: whether there has been a taking. This section demonstrates that while there has not been a traditional possessory or regulatory taking for the landlord, there has been for the tenant. Section C applies the public use and just compensation requirements for a constitutional taking to an eviction under a crime-free housing ordinance.

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I. Crime-free Housing Ordinances and the Fifth Amendment

This Comment argues that compulsory evictions under crime-free housing ordinances violate a tenant's Fifth Amendment rights under the Takings Clause. This Part focuses on crime-free housing ordinances and the Fifth Amendment, including types of takings and the public use requirement of a constitutional taking. This background distills the law and the elements required to make viable takings claim for those hoping to challenge crime-free housing ordinances.

A. The Creation and Reception of Crime-free Housing Ordinances

The history and evolution of crime-free housing ordinances as detailed in this section and confirmed by previous legal scholarship suggest an often-overlooked application of the Fifth Amendment.

Municipal crime-free housing ordinances proliferated near the turn of the century.¹⁵ The ordinances copied the federal "one-strike" policy that was instituted by Congress as part of the Anti-Drug Abuse Act of 1988.¹⁶ This policy, codified in 42 U.S.C. § 1437d, requires public housing leases to include a term that allows for immediate eviction of a tenant who commits a crime.¹⁷

Each public housing agency shall utilize leases which . . . provide that any criminal activity that threatens the health, safety, or right to peaceful enjoyment of the premises by other tenants or any drug-related criminal activity on or off such premises, engaged in by a public housing tenant, any member of the tenant's household, or any guest or other person under the tenant's control, shall be cause for termination of tenancy.¹⁸

The statute was intended to combat the "rampant drug-related crime"¹⁹ in public housing projects in the 1980s.²⁰ In 2002, the Supreme Court upheld the constitutionality of 42 U.S.C. § 1437(d) and the regulations promulgated by the

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Department of Housing and Urban Development (HUD) that did not require the tenant to know of the criminal behavior to be evicted.²¹ The Supreme Court stated that "[t]here are, moreover, no 'serious constitutional doubts' about Congress' affording local public housing authorities the discretion to conduct no-fault evictions for drug-related crime."²² However, that assertion did not say that the Court believed there were no constitutional doubts about the government requiring private landlords to evict their tenants for a drug-related crime. Instead, the Court held...