In order to help people stay housed during the economic chaos caused by the COVID-19 outbreak, Council members Morales and Sawant are urging state and federal officials to suspend rent and mortgage payments with no accumulation of back-rent or debt. But there’s a snag.
Morales has introduced a resolution for the Council to take up Monday afternoon that specifically asks Governor Inslee to place a moratorium on rent payments, and President Trump and the federal legislators to place a similar moratorium on mortgage payments:
Section 1. The Seattle City Council calls on Governor Inslee:
A. To use emergency powers to impose an immediate moratorium on residential and commercial rent payments, such that no Seattleite should be required to pay rent during this health emergency or accumulate debt for unpaid rent; and
B. To call on federal legislators and President Trump’s administration to impose an immediate moratorium on residential and commercial mortgage payments, such that no owner of Seattle property should be required to pay mortgage during this health emergency or accumulate additional debt for unpaid mortgage payments.
Section 2. The Seattle City Council calls on members of the United States Congress, specifically Representatives Pramila Jayapal, Adam Smith, and Financial Services Committee Chair Maxine Waters, and Senators Patty Murray and Maria Cantwell, to impose an immediate moratorium on residential and commercial mortgage payments and rents, such that no owner of property in the nation should be required to pay mortgage during this health emergency or accumulate additional debt for unpaid mortgage payments, and no renter in the nation should be required to pay rent during this health emergency or accumulate debt for unpaid rent.
Section 3. The Seattle City Council calls on President Trump to issue an executive order to impose an immediate moratorium on residential and commercial mortgage payments and rents, such that no owner of property in the nation should be required to pay mortgage during this health emergency or accumulate additional debt for unpaid mortgage payments, and no renter in the nation should be required to pay rent during this health emergency or accumulate debt for unpaid rent.
Sawant, for her part, sent a letter to Governor Inslee making the same request — and urging him to enact a rent freeze through the rest of 2020 preventing landlords from raising rents. She is also pushing for her supporters to sign a petition asking for the same things.
The problem with their requests? They’re illegal.
The low-hanging fruit is the rent freeze; everyone (including Sawant) is well aware that residential rent control is illegal under state law. Inslee’s emergency powers probably don’t extend to overriding state law to enact rent control, but even if they did, he certainly wouldn’t be able to extend it beyond the end of the emergency declaration.
The request to suspend rent payments without accumulating back rent — essentially rent forgiveness — is unconstitutional on several accounts at both the federal and state level. At the federal level, it would be a property “taking” without due process or compensation, a violation of the Fifth Amendment to the U.S. Constitution if the federal government did it, and of the Fourteenth Amendment if the State of Washington did it. The Supreme Court has been clear that a regulation that deprives an owner of all economically beneficial use of her property — such as mandating free rent — is a government taking.
It also violates Article I Section 16 of the Washington State Constitution — twice. That section contains the same requirements for just compensation as the U.S. Constitution, but it also explicitly prohibits the taking of private property for private use:
Private property shall not be taken for private use, except for private ways of necessity, and for drains, flumes, or ditches on or across the lands of others for agricultural, domestic, or sanitary purposes. No private property shall be taken or damaged for public or private use without just compensation having been first made, or paid into court for the owner, and no right-of way shall be appropriated to the use of any corporation other than municipal until full compensation therefor be first made
in money, or ascertained and paid into court for the owner, irrespective of any benefit from any improvement proposed by such corporation, which compensation shall be ascertained by a jury, unless a jury be waived, as in other civil cases in courts of record, in the manner prescribed by law.
It also likely violates Article I Section 23, by impairing rent contracts.
No bill of attainder, ex post facto law, or law impairing the obligations of contracts shall ever be passed.
A suspension of mortgage payments will face the same issues.
The emergency proclamations to-date related to rent and mortgages so far have carefully skirted around these restrictions by deferring but not depriving landlords and banks of payments, so they can’t argue that they have lost economic value.
The emergency powers of the Governor and the President — and the powers of Congress and the state legislature for that matter — are not unlimited; they can’t override their respective Constitutions. So Morales and Sawant can ask, but they aren’t going to get what they want.
Morales’ resolution has no legally binding effect; it simply voices a request of the state and federal governments. We’ll see if any of her colleagues (besides Sawant) will sign on. In the meantime, Council member Herbold has introduced an ordinance imposing commercial rent control while the state of emergency is in effect.