Days could be numbered for the Alameda County and Oakland eviction moratorium policies—if a judge accepts the arguments presented by landlord attorneys at a federal court hearing Thursday. 

The hearing was a significant step in a lawsuit filed by a group of rental property owners against the city and county in March, arguing that the pandemic eviction bans constitute an illegal “taking” of private property by the government and that the policies conflict with state law. 

“What an interesting case,” Judge Laurel Beeler told lawyers Thursday morning, in a courtroom where about 20 property owners and tenant advocates observed quietly. 

As Beeler peppered lawyers for both sides with questions, it was not clear whether she was convinced that the substance of the eviction moratoriums violated landlords’ constitutional rights. But she said their indefinite time periods, and the fact that they’ve been permitted to remain in effect for more than two years, “raises a concern.”

“It’s a little odd, at this stage in the pandemic, to have an ordinance with no end date,” she said.

The landlords who filed the lawsuit have asked Beeler to rule in their favor without having to proceed to trial, through a process known as summary judgment. At the conclusion of Thursday’s court hearing Beeler said she will take their arguments into consideration and issue a decision soon.

Lawsuit claims moratoriums are unconstitutional

Shortly after the COVID-19 crisis got underway in March 2020, the Oakland City Council and Alameda County Board of Supervisors passed temporary eviction bans, prohibiting landlords from forcing renters to leave their homes, with some exceptions including if the renter threatens their neighbors’ safety. The laws don’t relieve tenants of their obligation to pay rent, but they say property owners can’t evict them if they don’t.

The policies, considered some of the strongest pandemic tenant protections in the country, were intended to give renters housing security and prevent a rise in homelessness as large populations of renters faced job loss and increased childcare duties. Initially they were short-term bans, but in August 2020, with no end to the pandemic in sight, policymakers tied the moratoriums to the local state of emergency declarations. That means they will be lifted after officials in the city and county declare the COVID-19 crisis over.

Five small-scale landlords, along with the Oakland-based nonprofit Housing Providers of America, sued the county and city in March of this year over the eviction bans.

Housing Providers of America was incorporated early this year by John Protopappas, a prominent local developer and CEO of Madison Park Financial, which owns numerous rental properties in Oakland and elsewhere. The California Apartment Association, a statewide landlord lobbying group, is also participating in the lawsuit.

The landlords allege that the eviction bans violate their Fifth Amendment rights by confiscating their property. They claim that tenants who are allowed to stay in their apartments without paying rent are effectively being permitted by the government to trespass. 

The lawsuit says the policies have caused harm and financial challenges for small property owners like plaintiff John Williams, who ended up in the hospital from the stress of losing the $1,500 monthly rental income from a tenant in his West Oakland duplex and the fear of facing foreclosure.

The suit also says the moratoriums violate the Fourteenth Amendment and conflict with the state’s eviction ban, which expired in June and only applied if tenants were financially impacted by the pandemic and participated in the state’s rent relief program. However, attorneys for the city and county said the state law permitted local jurisdictions to keep their stricter eviction moratoriums, so long as the policies were passed before the state law went into effect.

In an attempt to relieve renters’ debts and ensure property owners get paid during the crisis, Oakland and Alameda County have doled out millions of dollars in state and federal rent relief money. But there have been lengthy delays and other problems with the distribution of those funds, and many households are still awaiting their payments.

Landlords, tenants tell tales of hardship

The judge’s decision will boil down to legal interpretations—whether property is being “taken” or not, whether or not non-paying tenants are “strangers” trespassing, and if the local law conflicts with the state’s. But to illustrate how landlords have been impacted by the eviction ban, the lawsuit included personal stories of several property owners, who came to the hearing.

Williams, the duplex owner, got emotional talking with The Oaklandside, recounting how his 10-year tenant hasn’t paid rent since the beginning of the pandemic and owes him $50,000. He said he tried unsuccessfully to sell the building, his only rental property, but the prospective buyer only wanted it if the renters left.

“At the beginning, [the moratorium] was a no-brainer, to help the tenants impacted,” Williams said. “But now tenants are like the owners, and I really have no say in my property anymore.” He said that as a single person of color he’s faced discrimination trying to rent, himself, so he bought the place to have security and income for retirement. He also noted that his tenant sued him for harassment and won the case this week, in the amount of $65,000.

In legal documents, the landlord attorneys argued that the eviction policies allow even wealthy tenants who never lost income to avoid consequences for non-payment, while property owners “are left with the burden of paying a mortgage and maintaining a premises for the benefit of those that can violate the lease and the law without fear of eviction.” 

But Nicholas Spear, a lawyer with the tenant advocacy group ACCE, which is also participating in the lawsuit, told the judge that “there would be just as many declarations and stories from tenants” who’ve experienced housing and financial hardships during the pandemic, if they’d gotten a chance to share them. 

ACCE members rallied outside the courthouse before the hearing, talking about the challenges they’ve faced during the crisis and with unsympathetic or abusive landlords. 

“Our local governments took the steps needed to keep us safe,” said ACCE lawyer Jackie Zaneri, calling the lawsuit a threat to all moratoriums everywhere. 

“I’m one of the lucky few, but so many people I know have been affected by eviction threats and illegal rent increases,” Oakland tenant Annemarie Garcia told The Oaklandside. Even though her boyfriend lost income during the pandemic, Garcia’s household has been able to make rent payments, she said. 

But “if it weren’t for rent control, I’d be on Wood Street,” she said, referring to the city’s largest homeless camp, which is currently being shut down.

There has not been clear data on the number of renters who’ve missed payments locally, making it hard to determine the overall financial impact of the moratorium on landlords. 

After the hearing, Protopappas said 20% of Madison Park tenants currently owe the corporation missed rent, compared to an average of under 1% before the pandemic. Madison Park came under fire earlier in the pandemic for issuing 150 eviction notices for non-payment while the moratorium was in place, though it was during a period of confusion around the requirements of the state law. 

Leave pandemic rules to policymakers, county says

“Is there any end in sight, from a policy perspective?” Beeler asked a county lawyer during the hearing.

Attorney Matthew Zinn said he couldn’t answer that, but commented that the state and federal declarations of emergency are still in place.

“And here we are in masks,” he said, noting that the judge herself had required face coverings after mentioning that previous court hearings had been “super-spreaders.” 

Zinn said it was not appropriate for lawyers or judges to determine when or how to draw the line on a pandemic policy, saying that should be left to legislators. Some Oakland officials have talked about beginning to phase out the moratorium soon, likely in small steps. 

After the hearing, Andrew Zacks, a lawyer for the landlords, said he didn’t believe policymakers would act to repeal the bans after two and a half years.

“Without a lawsuit, this is not going to change,” he told The Oaklandside. 

Lawyers for Oakland and Alameda County warned the judge that a ruling accepting the landlords’ legal interpretation could have widespread and unintended consequences for other, unrelated housing laws.

It could “drop a bomb on rent control,” Zinn said.