Fever Check: A Status Report on Judicial Treatment of COVID-19-Related Real Property Issues

Abstract

It was inevitable that residential landlords would challenge the foreclosure moratoria featured in state and federal COVID-19 emergency orders, regulations, and legislation. At the same time, commercial landlords and tenants are wrestling in court over the question of whether the pandemic and restrictions that governments imposed in response can excuse the nonpayment of rent. While these issues will continue to appear and percolate through state and federal trial and appellate tribunals, this Article provides an interim report on the progress (or lack thereof) of constitutional (Takings and Contract Clauses) and common-law (force majeure, frustration of purpose, impossibility of performance) theories enlisted to vindicate the alleged violation of property and contract rights or to support or oppose efforts to recover full rental payments during a global crisis.

Even the U.S. Supreme Court, via its “shadow docket,” has had a word in this debate, invoking the newly emergent and problematic “major questions” doctrine. The Article closes with a consideration of the roles stare decisis and respect for precedent are playing in the emerging COVID-related real property jurisprudence.

Note: Copyright 2023 American Bar Association. Reproduced by permission. All rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any means or downloaded or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.

Keywords: Property, COVID-19, pandemic, real property, landlord/tenant, force majeure, constitutional law, takings, contract clause, U.S. Supreme Court

JEL Classification: I, K, R