In India, HC judge recuses in Rent Act case

 

 

 

 

By: Abhinav Garg, TNN

NEW DELHI: A petition challenging the Rent Control Act, 1958, has been transferred to another bench because one of the judges hearing the case is a tenant who pays rent for a property falling under this Act.

A bench of chief justice D Murugesan and justice Rajiv Sahai Endlaw on Friday transferred the batch of petitions filed by women landlords in the capital to another bench, after the petitioners sought recusal of justice Endlaw.

Citing the assets/properties declared by justice Endlaw under the Right to Information Act and posted on the HC website, advocate Shobha Aggarwal, president, Committee For Repeal of Delhi Rent Control Act and one of the petitioners, had urged the judge to recuse from hearing the case.

In the recusal application, Aggarwal contended she learnt from the disclosures made under the RTI Act that justice Endlaw’s assets in real estate or investments include an old tenancy premises in the Walled City area.

She said the premises were earlier occupied by the judge’s father. Pointing out that the property is known to be under rent control, the application cited this as “one of the several grounds for justice Endlaw to recuse himself from the case”.

Elaborating the reasons for seeking recusal, the application argued that if the HC were to declare Delhi Rent Control Act, 1958 unconstitutional, “tenants like justice Endlaw would have to vacate the premises immediately. Thus, there is a natural apprehension in the minds of the petitioners that because of the conflict of interest involved, justice may elude them.”

In 2010, the HC had decided to entertain the petition challenging the DRC Act, 1958, which is being keenly followed by beleaguered landlords who have been getting paltry rents for the prime properties they let out. It had then issued notices to the Centre and Delhi governments asking them to furnish a reply.

Through a series of rulings, the Supreme Court has already tilted the balance in favour of landlords — allowing them to invoke need as a ground even for commercial properties. The only defence still available to a tenant for not paying market rent is the DRC Act which places a ceiling on rent in the capital.

Arguing that DRCA should be done away with as it is a five-decade old Act that fails to adhere to the present rent structure, the petitioners have given examples of prime properties where tenants have been paying paltry rents for years and can’t be evicted. The Act, passed way back in 1958, is an archaic legislation liable to be struck down as unconstitutional and violative of Article 14, 19(1)(g) and 21 of the Constitution of India, the petitioners argue. “Lakhs of landlords who own property worth crores are getting monthly rents of Rs 400, Rs 600 or at the most Rs 1,200 and are living in a miserable state as they do not get the worth of their property,” the petitioners lament, adding tenants, who would have otherwise had to shell out about Rs 2-4 lakh rent for the same properties, are paying a pittance to the landlords.

 

Source: The Times of India

Justices Broaden the Basis for Damages Over Floods

By 
Published: December 4, 2012

Supreme Court Justices

WASHINGTON — The Supreme Court on Tuesday ruled that people whose property was damaged by intermittent flooding caused by the government may seek compensation. The decision, which was unanimous, reversed a lower court ruling that had barred claims for flood damage unless the flooding was “permanent or inevitably recurring.”

The case arose from the activities of the Army Corps of Engineers, which periodically flooded 23,000 acres along the banks of the Black River in northeastern Arkansas. The Arkansas Game and Fish Commission managed the land, harvesting timber and operating a wildlife and hunting preserve.

From 1993 to 2000, in response to requests from farmers, the corps changed its pattern of releasing water from the Clearwater Dam, which is 115 miles upstream from the commission’s land. The flooding destroyed timber and altered the character of the terrain, requiring expensive reclamation efforts.

The commission sued the federal government under the Constitution’s takings clause, which says that property cannot “be taken for public use, without just compensation.” A lower court awarded the commission $5.7 million.

The United States Court of Appeals for the Federal Circuit reversed that decision, saying that the takings clause did not cover damage from such intermittent flooding. Justice Ruth Bader Ginsburg acknowledged that stray comments in earlier Supreme Court decisions provided some support for that view.

But she said that “no magic formula enables a court to judge, in every case, whether a given government interference with property is a taking.”

“No decision of this court,” she continued, “authorizes a blanket temporary-flooding exception to our takings clause jurisprudence, and we decline to create such an exception in this case.”

In general, she said, two things are clear: permanent physical occupation of property by the government and regulations that forever make all valuable uses of land impossible are takings requiring compensation. In the context of flooding, she went on, a dam that permanently submerged a plaintiff’s land was a taking, and so was damage caused by seasonally recurring flooding.

Beyond that, Justice Ginsburg wrote, things get murkier, requiring case-by-case judgment. She listed several factors to be balanced in the analysis.

The length of the government’s interference with private property matters, she said. So does “the degree to which the invasion is intended or is the foreseeable result of authorized government action.”

“So, too,” she went on, quoting from an earlier decision, “are the character of the land at issue and the owner’s ‘reasonable investment-backed expectation’ regarding the land’s use.” Finally, “severity of the interference figures in the calculus as well.”

Justice Ginsburg said the court would not address a new distinction proposed by the federal government when the case was argued in October: that downstream flooding should never count as a taking, whether permanent or temporary. That question, along with whether Arkansas law has a role to play in the analysis, should be considered in further proceedings before the appeals court, she wrote.

Justice Elena Kagan was disqualified from the case, Arkansas Game and Fish Commission v. United States, No. 11-597, presumably because she had worked on it as solicitor general.

Justice Ginsburg wrote that courts should be judicious in allowing takings claims for flood damage. “To reject a categorical bar to temporary-flooding takings claims,” she wrote, “is scarcely to credit all, or even many, such claims.”

“Today’s modest decision,” Justice Ginsburg wrote, selecting the apt metaphor, “augurs no deluge of takings liability.”

 

Source: New York Times

A Landlord’s Uphill Fight to Ease Rent Regulations: The “Madison Group”

By Craig Mordoh, Esq.

On July 11, 2012, representatives from various residential rental property owner groups from across the nation met at the distinguished Cato Institute to begin the process of formulating a strategy to place a constitutional challenge to rent control land – rent stabilization laws before the United States Supreme Court.

This effort is the brainchild of James Harmon, a former prosecuting attorney who gained some recent notoriety in the landlord community by mounting a one-man challenge to the New York Rent Stabilization Law that almost made it to the U.S. Supreme Court.

After an unsuccessful two-year battle to evict a tenant, who could well afford to live anywhere, Jim decided to challenge the constitutionality of the rent law itself. Making a sympathetic plaintiff, Jim received much favorable press coverage and the assistance of many prominent amici curiae; however, after a number of good signs that the Supreme Court might decide to hear his case, the court ultimately chose not to.

Beaten, but not defeated, Jim decided to try and find a way to challenge not just the New York Law, but rent control laws everywhere.  Currently rent control in some form exists in relatively few places, New York, New Jersey, Maryland, Washington D.C. and California. Many other states have laws or court’s rulings prohibiting rent control. In one famous instance, the voters of the State of Massachusetts voted to eliminate rent control throughout the state. Amazingly, the elimination of rent control in that state created no upheaval in the tenant community and improved the housing stock in those cities that now had a newly-created free market.

The first step in Jim’s plan was to find the commonalities in each of the laws. For instance, not every law has a state-wide enabling legislation, but every law limits the right to evict tenants.

Other potential areas of inquiry include:

What does a new-construction exemption say about the need for rent control and its effect on the housing market?

Does the emergency situation which formed the rationale for every rent control law still exist after all these years?

If yes, does it still create a lawful basis for rent control and what does its existence say about the efficiency of rent control?

Must an owner have the right to   recapture their property?

Once the commonalities are identified, chose the one susceptible to the strongest legal challenge and the file that single-issue Federal lawsuit in each of the rent control localities. This would result in rent control challenge in five different federal circuits. It is anticipated that the appellate level would require a review by the Supreme Court.

I attended this meeting on behalf of the California Apartment Law Information Foundation as well as the Apartment Associations of Greater Los Angeles. In addition, there were representatives of the National Apartment Association, the Institute for Justice, New York University School of Law and representatives from local owner’s groups from all of the affected jurisdictions.

The attendees were dunned the “Madison Group” in honor of James Madison, our fourth President, who stated “commercial shackles are generally unjust, oppressive, and impolitic.” This may be the most concise, yet accurate, description of rent control ever.

Following the meeting, the enthusiasm of the participants was high and a follow-up national teleconference was scheduled for September. CALIF and AAGLA will continue to participate in this effort and provide periodic reports to this magazine.

Mordoh is Senior Attorney of the California Apartment Law Information Foundation (CALIF). Since its inception, CALIF has pursued its dual goals of providing an informational base for landlords and tenants on the workings of landlord-tenant law in California and challenging state and local municipalities when they take actions that infringe upon the constitutionally guaranteed property and civil rights of California residents. CALIF is qualified to receive tax-deductible contributions under IRC Section 501(c)(3).

 

Source:  Apartment Association of Greater Los Angeles

It’s Not Over Till It’s Over: Rent Control Supporters Vow to Continue the Fight

 

by Al Sullivan

Although voters rejected an effort to maintain rent control by 121 votes, supporters of rent control said they are reviewing their options and will seek to put the question back on the ballot if legal options do not prevail.

With nearly all of the votes counted from Nov. 6, the effort to retain rent control was narrowly defeated with 51 percent to 49 percent of the vote.

County elections officials certified the vote on Nov. 17, and this allows the city to gradually phase out rent control in Bayonne.

The council approved changes to rent control in November 2011 that would allow landlords to opt out of rent control once current tenants move out.

Rent control supporters tried twice earlier this year to have the matter put up as a referendum, and then when those attempts failed, they used another approached the imitative which successfully allowed the matter to be put on the Nov. 6 ballot.

Ed Gilligan, spokesperson for the Bayonne Tenants’ Association, said he was disappointed by the result, but that the group has not given up.

“We’re reviewing our legal options,” he said. “If we have to, we will go out and get more signatures and put it on the ballot again. In Hoboken, they did it twice. The first time they were swamped, but they got organized and won. We weren’t organized and we only got 49 percent of the vote.”

__________
“I think maintaining rent control is where the sympathies of Bayonne people lie.” – Ed Gilligan
_________
Course of action

The Bayonne Tenants’ Association was seeking to preserve rent control in the city after the council voted to do away with it in November 2011, as part of an effort to spur redevelopment in the city.

“I think we were fair in what we did,” said Councilman Ray Greaves. “I didn’t like the first ordinance that we saw [in July 2011], which didn’t protect the people living there. But the changes we voted for do, I think are fair to both landlords and tenants and will help landlords reinvest in their properties, knowing that they will get a fair return on their property.”

The vote results from Nov. 6, which were delayed because of Hurricane Sandy, lets the city council changes remain. These would allow properties to drop rent control once the residents living in them currently leave.

“I don’t think this lost because of the hurricane,” Gilligan said. “Outside groups and the city spent a lot of money to defeat our ordinance that would have kept the old rent control in place. We spent very little and we still got 49 percent of the vote. I think maintaining rent control is where the sympathies of Bayonne people lie. They do not sympathize with out-of-town political operatives who came in here to get rid of it.”

Unlike traditional referendums which would have not allowed the Bayonne Tenants’ Organization to seek another election on the measure for three years, the method they used has no limitation.

“We can put it back on the ballot as soon as we get enough signatures again,” he said.

Gillian said he and his group will likely start a public education campaign ahead of the next round in this battle to preserve rent control.

“I think the next time we can win this,” he said.

Source: Hudson Reporter