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PROVIDED BY THE APARTMENT ASSOCIATION OF GREATER LOS ANGELES • WWW.AAGLA.ORG AUGUST
U.S. SUPREME COURT IN A LANDMARK DECISION REAFFIRMS “BEDROCK PRINCIPLE” THAT ANY GOVERNMENT-COMPELLED PHYSICAL OCCUPATION OF PRIVATE PROPERTY, WHETHER PERMANENT OR TEMPORARY, EFFECTS A TAKING IN VIOLATION UNDER THE FIFTH AMENDMENT
The United States Supreme Court has consistently held that any government-compelled occupation of private property constitutes a per se taking under the Fifth Amendment, necessitating the payment of “just compensation.” In Cedar Point Nursery vs. Hassid, decided on June 23, 2021, the Supreme Court once again reaffirmed this bedrock principle in the context of a California regulation (Cal. Code Regs., tit. 8, § 20900(3)(1)(C)) which authorized union personnel to “take access” to the premises of agricultural employers for the purpose of meeting with employees and soliciting union support. The regulation granted labor organizations the right to take access “for up to four 30-day periods in one calendar year.”
Writing for the majority of the Court, Justice Roberts noted that the limited duration of the compelled occupancy (i.e., the restriction on the total time union representatives could “take access” to private property) was irrelevant to the question of whether a taking has occurred. As he explained, the Supreme Court has previously made clear that “a physical appropriation is a taking whether it is permanent or temporary.”
The holding in Cedar Point Nursery certainly has much wider implications extending beyond the particular regulation at issue in the case. Indeed, any government-compelled occupation of private property by either the government or third parties would likely invoke application of this per se rule. Although the physical-occupation rule for takings liability is fairly straightforward in application, Cedar Point Nursery is virtually silent on the remedy for the taking other than alluding to the required monetary payment of “just compensation.” Past Supreme Court authority has demonstrated some hostility towards “invalidating” the law or regulation effecting a taking and, thus, the likely remedy would be a monetary payment of “just compensation” stemming from the physical occupation.
Douglas Dennington is a Partner at the law firm of Rutan & Tucker, LLP based in Irvine, California. He specializes in litigation matters involving multiple real estate and Americans With Disabilities Act (ADA) issues. This information should not be construed as legal advice or legal opinion on any specific facts or circumstances. The contents are intended for general informational purposes only. For specific questions, you can reach Mr. Dennington at (714) 641-5100 or view the firm’s website at www.rutan.com.
GOVERNOR NEWSOM SIGNS LATEST UPDATE OF RENT RELIEF PROGRAM FOR LOW-INCOME TENANTS, EVICTION MORATORIUM EXTENSION AND ADDITIONAL LEGISLATION
(From Governor’s Press Release Dated June 29, 2021): On June 28, 2021, Governor Gavin Newsom signed legislation to extend the state’s eviction moratorium through September 30, 2021, and clear rent debt for low-income Californians that have suffered economic hardship due to the pandemic. Under Assembly Bill 832, the State of California will increase cash assistance to low-income tenants and small landlords under the state’s $5.2 billion rent relief program, making it the largest COVID-19 rental protection and rent relief program of any state in the U.S.
In an agreement among the Governor, the state’s Senate and Assembly, Assembly Bill 832 increases the amount of reimbursement the state’s emergency rental assistance program provides to now cover
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APARTMENT MANAGEMENT MAGAZINE - AUGUST 2021 CS-1