Follow the Science—and Law—on Rent Control

Alexander Talel’s “Rent Control Is Constitutionally Vulnerable” (op-ed, Aug. 16) focuses on regulatory takings, a restriction on the use of property that goes “too far” and requires the payment of “just compensation.” But there is a second type of taking, per se takings, on which New York’s rent laws are also vulnerable.

In Cedar Point Nursery v. Hassid (2021)—about a regulation that granted union organizers a right to enter and occupy growers’ land for three hours a day, 120 days a year—the Supreme Court held that the right to exclude is “a fundamental element of the property right,” and that government-required occupation of private property is a per se taking.

New York erases owners’ ability to exclude. Tenants can renew leases forever, regardless of owners’ wishes. The tenancy can be passed on to so-called successors whom the owner has no opportunity to approve. Owners’ ability to reclaim the property for their own use is virtually eliminated.

The Second Circuit attempted to distinguish Cedar Point, claiming, “Landlords voluntarily invited third parties to use their properties,” and thus subjected themselves to states’ “broad power to regulate housing conditions.” The Supreme Court earlier rejected this argument. Consenting to a particular tenant once shouldn’t mean forever losing control over who can occupy your property. New York’s onerous eviction limitations mean that, for practical purposes, an owner is stuck with the tenant, or his self-appointed successor, in perpetuity.

Joel Zinberg

Competitive Enterprise Institute

New York

Rent control is a price control of the type typically employed, unsuccessfully, by socialist governments. Economics 101 dictates that capped pricing will limit supply production. In a “housing emergency,” what is needed is more supply. Thus, rent control can be viewed as iatrogenic—it is a solution that ultimately exacerbates the problem.

It creates perverse incentives that ultimately constrict the supply and degrade the housing stock of rent-controlled cities. As Swedish economist Assar Lindbeck noted, “In many cases rent control appears to be the most efficient technique presently known to destroy a city—except for bombing.” Economics is a science and progressive leaders, on both coasts, need to take their own advice from Covid and “follow the science.”

Ken Broad

Mill Valley, Calif.