The Perilous Fight for the Preservation of the At-Will Tenancy
November 30th, 2020 | By: Matthew I. Paletz, Esq.
There’s always been a real estate legal topic that I’ve been hesitant to blog about. I was convinced that the mere mention of it would hasten its arrival. But then 2020 came, with its unending assault on the rights of property owners and it occurred to me that the time to be silent is over. Rather, the alarm must be sounded, and I pray the call does not go unanswered.
We are on the brink of the destruction of the at-will tenancy, where landlords may no longer be able to decide at the end of a lease term that the agreement is over. Landlords may eventually become legally committed to every renter, no matter what their payment history is or how they’ve treated the property. This is because the burden to remove tenants is going to be so much higher than it used to be. COVID has been co-opted and being used as an excuse to radically alter the landlord-tenant relationship.
The law is not supposed to interfere with the rights of private property owners. I used to think these rights were deeply embedded in our Constitution and not easily accessible to be infringed upon. Unfortunately, the legal landscape we now live in is radically changing by the minute. The executive and judicial branches have leveled a vast barrage of extremist edicts, and thus far have gone relatively unchallenged.
My clients have experienced a massive curtailment of their contractual rights in the form of unprecedented rules and regulations and eviction moratoriums. Now, a 12 month extension hangs in the balance in the form of the HEROES Act.¹ However, we will not know until the next administration takes its place at the White House or until the results of the runoffs in Georgia, which will affect control of the U.S. Senate.
I also fear it is only a matter of time before the Takings Clause of the Fifth Amendment becomes the next target for this unquenchable activism. It states, “Nor shall private property be taken for public use, without just compensation”. So, I ask you, who will be the ultimate arbiter of the definition of “public use”? If we continue down this path, it won’t be historically like a park or a highway, but rather an excuse to balance a perceived systemic societal inequity. Likewise, who will decide the amount of “just compensation”? Of course, land has a value, but how do you put a price on the usurping of a right once thought to be guaranteed?
Now is the time to take a stand before it’s too late. It will be difficult as there are more hazards to come on the horizon. A mountain of bad debt left in the wake of these misguided moratoriums manifesting itself into financial instability will lead to seismic fractures in the entire housing sector. Thus, giving opportunity to predatory political operatives to justify extensions of rental contracts without the legal authority to do so.
The Bottom Line: If you, as a property owner are not ready for this fight, you better start preparing yourself. In the meantime, know that we, at Paletz Law, are ready. We have the experience and the collective fortitude, coupled with the foresight, to be with our clients’ every step of the way.