Roundtable #24 | Eviction, Redlining, and Rent Control: The State of Modern Housing Law

Section I: Falling from Nowhere: The Global Recognition of the Human Right to Housing

Global recognition of the right to housing has been a staple of human rights since 1948. First solidified in Article 25 of the 1948 Universal Declaration of Human Rights, covenants like the 1966 International Covenant on Economic, Social and Cultural Rights and the Covenant on Civil and Political Rights (CCPR) have further instilled a right to housing. Though many have signed the Covenants and ratified some of its treatises, these agreements are not legally binding; thus, they serve as a foundation upon which states can recognize and allow to inspire their laws in accordance with the declaration. Despite a global recognition of the human right to housing, with 172 countries having ratified the right, there are growing tensions and rulings occurring in states around the world that have begun to undermine or ignore the right to housing at the peril of individuals’ rights and livelihoods.

Across the globe, forced evictions and violations found in Bulgaria and Greece, which have had varying degrees of success, repeatedly disturbs communities’ right to housing. In Liliana Assenova Naibidenova et. al. v. Bulgaria, the 70-year-old Dobri Jeliazkov community which resided in the Sofia Metropolitan Municipality, came under threat of forced eviction by the municipality. Beginning in 2011, the Dobri Jeliazkov community, after having exhausted all domestic means to remedy their situation, finally appealed to the Human Rights Committee. In 2012, amidst the proceedings, the stock company Sofiyska Voda, which owns the local water supply lines, disrupted the community’s access to water, encroaching on Article 17’s of the International Covenant on Civil and Political Rights prohibition on arbitrary interference of a person’s home. The municipality had yet to re-establish access to the water supply at the time of the authors’ submissions to the Committee. After reviewing both parties’ submissions, the Committee found that an eviction of the Dobri Jeliazkov community would violate Article 17 if the Bulgarian government continued to carry out the eviction order without providing a satisfactory housing alternative as required in the Article.

In another Roma commune, the human right to housing came under fire again. In the case Greorgopoulos et al. v. Greece, a family residing in the Roma settlement of Riganokampos, Patras left for seasonal work, only to have their shed demolished in a “cleaning operation” while they were gone. After starting construction to build another shed, the municipality threatened the family with arrest if they continued. Without a state remedy to their eviction, the family filed claims and submitted to the Committee under Article 7, Article 23, and multiple paragraphs concerning Article 17, Article 26 and Article 27 of the Covenant on Civil and Political Rights. The Human Rights Committee found that the Municipality’s eviction and destruction of the makeshift home belonging to the Roma family and the local authority’s subsequent prevention of construction of a new home violated Article 17, which forbids arbitrary interference with a individual’s privacy, family, home or correspondence and Article 23’s protection of the family. Further, in light of all the facts and status of the family as Roma and the relationship between the Roma and state party, the municipality’s actions denigrate the rights of minorities in turn violating Article 27 of the International Covenant on Civil and Political Rights. Thus, while the Committee deemed the family’s complaints substantiated with respect to Articles 7 and 26, which outline the prohibition of torture and cruel, inhuman or degrading treatment and equality before the law, respectively, the Committee did not consider further inquiry necessary as the other Articles encapsulate their violations. Interestingly, in his opinion, Committee member Fabián Omar Salvioli recognized important precedent in deeming possible violations of Article 7 admissible to the Committee, which invites application of the recognition to the universality of human rights in future Committee hearings and rulings.

In the United States, courts have ruled in favor of the criminalization of homelessness, further revealing consistency in the movement of governments implementing anti-housing laws and criminalizing homelessness. Such revelations are exemplified in the 2023 U.S. Supreme Court ruling in City of Grants Pass, Oregon v. Gloria Johnson. As a result of homeless individuals' inability to pay fines, instituted by local statutes, a woman named Gloria Johnson appealed to the Eighth Amendment’s expression of limits on a government’s actions to impose unjust punishment on individuals. She claimed, under the 8th Amendment, that it was cruel and unusual punishment to impose fines on individuals already without the means to afford housing. The City, in response, claimed that they were merely enforcing the local statute that prohibits public camping in the park. In support of the city, the majority opinion cited Robinson v. California, where the 1962 court “...expressly recognized the ‘broad power’ States enjoy over the substance of their criminal laws, stressing that they may criminalize…drug use”. Further, the Court held only that a State may not criminalize the “ ‘status’ ” of being an addict.” Thus, the current majority opined that what was at issue was not the status of a person being homeless, rather it was the actions and legality of the local statutes, keeping the scope of the case narrow. In essence, this opinion bypassed the UN’s insistence that the right to housing not be interpreted narrowly by ignoring the person’s status in actuality. Moreover, the Supreme Court argued that determining the status of an unhoused individual, referencing the Ninth Circuit’s ruling in Martin v. Boise, is a cause of unreasonable difficulty to the community. The opinion again bypassed the UN’s intention for states to take reasonable measures of community’s resources to provide adequate housing for its communities. In Justice Sotomayer’s dissenting opinion, she stated that the statutory penalties and ordinances were not in good faith nor altruistic but are determined to criminalize homelessness. As such, Justice Sotomayer exhibits the view that the right of a community to enforce its local statutes does impose itself onto a person’s status, no matter the actions one necessarily has to take. Ultimately, it is opined that Grants Pass’s Supreme Court ruling outlines negative, harmful, and oppressive measures which re-ensures or allows punitive steps for unhoused individuals.

Ultimately, cases around the world and the United States demonstrate a global failure to address the human right to adequate housing. Forcing unhoused individuals into incarceration systems rather than providing adequate standards and upholding basic humanity disturbingly misconstrues the right to housing, a right universally inherent to any person, in any status, into one of criminalization. Considering the recent pattern of actions that expressly ignore human rights in cases of forced evictions and the criminalization of the unhoused, it is apparent that the human right to housing is in need of increased recognition of its universality within many countries’ legal systems and in the public. In hope, there are entities taking measures to recognize the right to housing. Take the city of Athens, for instance, that now has a Homeless Bill of Rights, in which it recognizes the right to adequate housing. Also, notice the United States Veteran Affairs’ efforts to eliminate veteran homelessness, in which 3 entire states and multiple cities/communities have committed to in order to eliminate homelessness for a subpopulation. With continued effort, following these proven means that recognize the rights found in humanity’s ideals will provide efforts against homelessness with the lights necessary for a path forward.

By Victor Odom

Section II: Ending Housing Discrimination: Efforts to Remedy Redlining

Starting in the 1930s, the U.S. federal government encouraged discriminatory housing practices through redlining, which involves the denial of access to credit, primarily in the form of mortgage loans. The term 'redlining’ comes from color-coded maps used by the Federal Housing Administration (FHA) to determine which areas were suitable for loans. Claiming that neighborhoods inhabited primarily by minority groups were not safe for investment, the FHA subsidized mortgages for white families, perpetuating segregation in many American neighborhoods.. The government has attempted to address the discriminatory lending practices of the FHA during the 20th century, but the effects of their segregationist policy can be seen today through disparities in income and health outcomes between neighborhoods.

After the redlining era, reforms during the Civil Rights Era explicitly banned racial discrimination in housing policy, with later cases expanding the interpretation of these laws. The Fair Housing Act of 1968 banned discrimination by landlords, real estate companies, banks and other lending institutions, and homeowners insurance companies on the basis of race or color, religion, sex, national origin, familial status, or disability. The interpretation of the Fair Housing Act broadened in 1982 in the case of Havens Realty Corp. v. Coleman. In this case, a Black woman was falsely told that there were no units available in an apartment complex. The Supreme Court established that individuals could sue under the FHA even if they had not been affected financially. With the only requirement for bringing a lawsuit being discrimination, more individuals could seek financial compensation on the basis of racism. In 2016, the case of Bank of America Corp. v. City of Miami again expanded the interpretation of the FHA. When the city of Miami sought damages for discriminatory loan practices, the district court initially ruled that cities were not able to sue under the FHA, but the Supreme Court reversed this and found that municipalities could count as “aggrieved persons.” While the FHA began to heal the damage from discriminatory practices, the expansion of its scope shows that these issues have not been fully resolved, and the government had no way to tackle the root causes of discrimination.

In more recent years, financial settlements have served as a form of reparations for the harm done by redlining. A 2015 settlement between the Department of Housing and Urban Development and Associated Bank was reached for claims by African-American and Hispanic loan applicants of discrimination in Chicago, Milwaukee, Minneapolis-St Paul, Racine, Kenosha, and Lake County. Associated Bank agreed to pay $200 million, investing in mortgage lending in majority-minority areas in these cities, performing repairs for existing homeowners, and offering fair housing training to all of their employees. In 2023, the Department of Justice required City National Bank to pay a $31 million settlement, in which they were required to start a loan subsidiary fund for minority borrowers and invest in community outreach. Though redlining had been outlawed for decades, both of these settlements were made for discrimination that took place just a few years before, with Associated Bank accused of discriminatory practices from 2008 to 2010, and City National Bank from 2017 to 2020. Despite the expansion of the Fair Housing Act, housing discrimination is still an unfortunate reality of contemporary America. While financial settlements can bring justice to those affected, they fail to address the root issues and prevent banks from engaging in discrimination in the first place.

While expanded legal protections and settlements have helped reduce the impact of redlining in the U.S., they have not fully resolved the issue. There are many structural remnants of racialized legislation that impact urban areas today, including poorer health outcomes being associated with historically redlined neighborhoods. A 2020 study in the journal “Climate” found that 94% of the cities they studied had higher land surface temperatures in historically redlined neighborhoods, suggesting that these areas have fewer green spaces. Redlined neighborhoods also have two times more exposure to oil and gas wells, which increase health risks associated with pollution, according to a 2022 study in the Journal of Exposure Science & Environmental Epidemiology. Furthermore, redlining has contributed to the disparity in wealth between Black and White Americans today. While the income gap is significant, with Black people making 60% of the average White income, the wealth gap is even greater, with Black wealth comprising only 5% of the total value of White wealth. Housing discrimination continues to exist in more informal ways, as majority Black neighborhoods today can be undervalued in the property market by up to 65%. Banning discriminatory practices, although an important step in correcting past wrongs, was too late to prevent a knock-on effect that has continued to create racial and socioeconomic inequities in the United States.

Although the government continues to attempt to prevent discrimination and remedy the effects of redlining, the socioeconomic divisions along racial lines in many urban areas reflect the lasting effects of these practices. By choosing to redress issues through financial settlements without addressing the structural issues contributing to redlining, the impact of housing discrimination will continue to persist.

By Eve Bertrand

Section III: The Legal Impact Rent Control Laws: The Tension Between Renter’s Rights and Landlord Autonomy

Following World War II, a great housing shortage gave birth to the concept of rent regulation. Rent control is defined specifically as a maximum restriction on the rent that can be charged by a landlord in a given area. Having yet to be established at the federal level, rent control laws today are sparse, and are only in effect in California, New York, New Jersey, Maryland, Maine, Oregon, Minnesota, and the municipality of Washington DC. Oregon and California are the only two states with explicit rent control laws in place within a state constitution. Specifically instated with the tenant in mind, rent control laws prevent unnecessary rent raises as they effectively cap how much a landlord can raise the price to within a given time. Putting a cap on the increments by which landlords can raise rents ultimately protects the tenant from a wide range of instabilities. Although highly contentious, municipal and statewide rent control laws greatly increase tenant stability and decrease the likelihood of eviction related crises within low income or minority groups within US cities.

Throughout the 1970s and 80s, the concept of rent control emerged as a legal solution to housing and eviction injustices. Several municipalities brought the idea under consideration, and effectively passed rent control legislation for the first time. In the State of New York, the Emergency Tenant Protection Act (ETPA) of 1974 was established to protect tenants in buildings of six or more units that were built before 1974. The ETPA effectively governed rent stabilization and rent control within state municipalities that passed a local law to adopt the system. Each county that adopts this legal framework sets the maximum allowable rates for rent increases in certain stabilized apartments. Section 6 of ETPA specifically regards the regulation of rent, stating that during a declared emergency, owners cannot raise prices exceeding the initial regulating rate until new rent guidelines are adopted,preventing unprecedented hiking ups of rent during a crisis. A clear need for housing protections within times of crisis was implicated, and the 1970s continued to be a decade in which tenant protections began to develop not only in New York, but in California as well. One landmark case in establishing rent control law came in 1979, when the city of San Jose found itself with housing shortage and increasing housing demand. In Pennel v. The City of San Jose, San Jose, California, held that a newly enacted rent-controlled ordinance in 1979 was justly crafted to protect both the investments of landlords whilst protecting tenants effectively from hefty rent increases that would endanger their consumer welfare. The outcomes of the case implicated effective protections of consumer welfare early on in the state of California, while also concerning the autonomy of the landlord as a municipal player. This California rent-controlled ordinance along with the ETPA represented a modernization of the necessity for legal protections against landlords.

Despite the ETPA’s once effective legal protections over low income tenants in New York, rent control laws remain sparse in the United States. Even within New York State, each county implements the ETPA and subsequent rent control laws differently, leaving drastic differences in its enforcement and effectiveness across the state. For instance, rent law loopholes within the rental submarkets of the Bronx, upper Manhattan, and Brooklyn have diminished the presence of low-rent apartments within these areas. The diminishment of rent stabilized apartments are also caused by the ETPA’s recent lack of reform or complete nullification in certain municipalities. In New York City specifically, 291,000 rent stabilized units have been deregulated as a result of these loopholes since 1994. Furthermore, unregulated tenants within counties not covered by the ETPA, like the Hudson Valley, have seen great loss of low-rent units as a result of a lack of universality. The Dutchess County Court of the Hudson River Valley recently overturned the ETPA, effectively nullifying any legal barriers that previously governed rent stabilization within the Hudson River Valley.  Deregulation, in a sense, is a new form of protection for landlords, giving them more bargaining power and autonomy over the tenants that occupy their unit(s). New York City’s CSS Housing Policy Analyst Oksana Mironova recounts how “by 2017, the gap between stabilized and unregulated low-income tenant rent burdens essentially disappeared,”endangering the right to housing for low income tenants in high demand areas.

Among the consequential attacks on the ETPA, certain legal protections for tenants still remain intact.In Rent Stabilization Association of NYC, Inc., et al., Petitioners,v New York City Rent Guidelines Board (2017), petitioners argued that the board of the New York City Rent Guidelines were overstepping legal boundaries by taking tenant affordability into its own considerations. The court nullified the petitioner's complaints, asserting that New York Rent Guidelines should in fact take tenant affordability into consideration. In this nullification of the complaints, the court cited the case of Muriel Towers Co. v. City of New York Rent Guidelines bd. (1983), a case which established the Board’s ability to directly take the economic circumstance of the tenant as a relevant and permissible factor. In addition to this reinstatement of the rights of the New York Rent Guidelines Board, the Emergency Tenant Protection Act of 1974 recently saw a reinvigoration through the new Housing Stability and Tenant Protection Act of 2019 (HSTPA). The HSTPA permanently installed NY’s rent regulation laws while also protecting those who lived in buildings constructed after 1974. Unlike the EPTA’s lack of reform, if the HSTPA is installed within municipal law, it cannot be utilized as an outdated legislative loophole. The assemblage of new regulations directly discourages bad faith tactics for landlords to push tenants out of their property in order to reap economic benefits. The HSTPA is an excellent example of a municipal law that provides renewed and effective protections to tenants, furthering the fight for low-income rights within the state of New York.

Municipal implementation of rent control laws effectively prevents lower class populations from housing instability and eviction. Eviction prevention acts differentiate from city to city, as many states have implemented “right-to-counsel” programs that provide effective legal aid in eviction cases. In other states, short term rental assistance programs are implemented. Although these programs are effective in the short term, they fail to grasp the root cause of the problem that causes eviction in the first place. According to the Community Service Society of New York, over one third of recorded low-income tenants reported their concern of eviction when their eviction moratorium comes to a close, as opposed to one fifth of moderate and high income tenants in New York. Subsequently, low income New Yorkers living in rent regulated housing are ten times more likely to access rental assistance that will prevent them from dangers such as eviction in comparison to low income tenants residing in unregulated housing. Rent regulation and control aids limit lower income people from seeing an eviction notice in the first place. Rent control pushes for stability first among renters, prioritizing keeping people housed over the landlord’s desire to seek a greater return on their estate investment. Ultimately, while short term assistance programs can prove to be effective for eviction prevention, rent control laws such as the HSPTA provide a longer term solution to housing instability. 

By Jane Bryant

 Section IV: Mi Casa, Su Casa: Occupancy Rights During and Post COVID-19

Eviction moratoriums are government orders that temporarily prohibit landlords from evicting tenants from rental properties, often enacted in response to crises such as the COVID pandemic. By pausing the eviction process, the policy allows tenants to remain in their homes while simultaneously protecting landlord rights through the continuation of tenant rent obligations. During the pandemic, there were sudden federal and state level eviction moratoriums across the United States used to reduce mass displacements and hinder the spread of COVID-19. While sudden federal eviction moratoriums could be viewed as necessary given COVID-19's unprecedented circumstances, the eviction moratorium response sparked broader conversations about federal overreach: sweeping mandates was seen by some as an arbitrary expansion of federal power, neglecting individual and state rights.

During the pandemic, the federal government enacted the Coronavirus Aid, Relief, and Economic Security (CAREs) Act to provide "fast and direct economic assistance for American workers, families, small businesses, and industries." The CAREs Act included a 120-day eviction moratorium, (§ 4024), prohibiting landlords from evicting tenants residing in properties with federally backed mortgage loans or those in federal housing programs. The law specifically states, in Section 4024(b), “...the lessor of a covered dwelling may not... initiate a legal action to recover possession of the covered dwelling from the tenant for nonpayment of rent or other fees or charges.” The COVID-era laws placed further limitations on landlords, banning “the eviction of a tenant from a dwelling unit... solely for nonpayment of rent” (4023(d)(1), 134 Stat. 491).

After the expiration of federal eviction protections in July 2020, the Center for Disease Control (CDC) issued a broader order under Section 361 of the Public Health Service Act on September 4, 2020. Compared to its counterpart, the CAREs Act, which only applied to 12.3 million tenants, the CDC order protected 30 to 40 million tenants facing eviction. Legally, Section 361 of the Public Health Service Act allows the Surgeon Generate to create regulations to prevent the "introduction, transmission, or spread of communicable diseases from foreign countries into the States", which the CDC argued to include COVID-19. The CDC mandate applied to "any tenant, lessee, or resident of a residential property who provides ... a declaration under penalty of perjury." While studies have shown the eviction moratorium to reduce eviction filings by roughly 20% and provide the needed time for tenants to avoid eviction (one study described the period as a "breathing room"), many also question its effectiveness due to its gaps in tenant protection and the persistent landlord and tenant power imbalance.

Despite tenant protections being enforced nationally, legal challenges to the federal eviction moratorium, brought by landlords through state level courts, have highlighted a state level resistance to a federal consolidation of regulatory power. In the 2020 case of Brown v. Azar, several landlords, including Richard Lee Brown, Jeffrey Rondeau, and David Krausz, challenged the CDC's eviction moratorium. The landlords, represented in part by the National Apartment Association, argued that the moratorium exceeded the CDC's statutory authority and caused them immediate harm through the "violation of their constitutional rights; non compensable loss of the value of their property; and deprivation of residential property." The landlord’s claims in Brown v. Azar represented a repercussion of the eviction moratorium: many tenants simply stopped paying rent, creating a financial burden for individual property owners who were financially dependent upon their rental income. The United States District Court for the Northern District of Georgia ultimately ruled that the CDC acted within its authority under 42 United States Code § 264 and 42 Code of Federal Regulations § 70.2, and that the "Plaintiffs have not clearly established their burden of persuasion" and denied the case.

Other cases of pushback, however, saw success in limiting the CDC mandate. In 2021, Judge Dabney L. Friedrich of the  U.S. The District Court for the District of Columbia ruled in November 2020 that the CDC had overstepped its authority in imposing the moratorium, concluding that “the statute on which the CDC relies does not grant it the authority it claims." This ruling, from the case of Alabama Association of Realtors v. United States Department of Health and Human Services, was appealed and brought before the Supreme Court. In a 5-4 decision, the Court upheld the moratorium for a short duration, overruling the lower court's judgement. Although the court allowed the moratorium to remain in place temporarily, judges in the majority, like Justice Kavanaugh, articulated that the CDC had overstepped its authority. Instead, Justice Kavanaugh voted to keep the ban in effect to provide more time for Congress to act and allocate resources, demonstrating a resistance to federal authority despite continuing the moratorium.

However, the CDC order has faced many legal challenges from landlord interest groups, some of which are politically driven. Law professor Ilya Somin, in a Bloomberg interview, warns of the CDC's regulatory power, potentially allowing it to "mandate or restrict almost any kind of activity" under the guise of disease prevention. This notion is further echoed by the landlords’ attorneys, who argued that the CDC order was an unconstitutional delegation of legislative authority to the executive branch, a view shared by many conservatives and libertarians seeking to limit the bureaucratic state.

In addition to the legal debates, however, the implications of these mandates span further than simply the delegation of regulatory power, as they had a significant impact on public health. Health experts estimated the eviction moraturium’s role in disease prevention, with models demonstrating a 1% eviction rate resulting in a 5% to 10% higher incidence of COVID-19 infection, highlighting the public importance of health mandates. At the same time, landlords continued to struggle covering their rent losses, revealing the tension between federal eviction moratoriums and state-level challenges to madates.

While federal eviction moratoriums are no longer in effect, their existence and the challenges surrounding them highlight its importance. How can the federal government balance protecting tenants' rights with property owners’ rights during future crises? When, if ever, should health intervention justify sweeping federal moratoriums? The relevance of these questions remains, even after the immediate COVID crisis.

The pandemic exposed systemic fragility in housing, emphasizing the need for more thorough protections for both tenants and landlords. In this context, the saying “mi casa es su casa”–literal meaning “my house is your house”–takes on a tragic irony. While many tenants faced the threat of eviction, landlords were burdened by unpaid rent as their home became one that is forcefully opened to be occupied. From this discrepancy, it is clear that a more equitable approach is needed in regards to housing, one that recognizes housing as a fundamental right to all. Only by prioritizing the well-being and security of all individuals involved can we make "mi casa es su casa" ring true.

By Kiara Qizhen Ba

Edited by Lukas Roybal