Property Law / Housing

This section includes literature on the right to housing and housing security.

Anderson, Courtney Lauren, 'A Pandemic Meets a Housing Crisis' in Scott Burris et al (eds), Assessing Legal Responses to COVID-19 (Public Health Law Watch, 2020) 187-192
Abstract: Housing instability in the United States has been exacerbating health disparities and causing worse health outcomes for low-income individuals and people of color well before the COVID-19 pandemic. Individuals with low- or no-income experience intermittent utility connection, are more likely to be evicted, and spend a higher percentage of their income on housing costs. There is an insufficient supply of safe, affordable housing. As a result, people are homeless, live in substandard conditions, and experience economic insecurity. COVID-19 increased the number of families afflicted with housing instability and prompted an unprecedented government response to this issue. Certain legal constraints that perpetuated a system of discrimination were rapidly suspended or amended when middle- and upper-class people found themselves struggling with housing and utility payments, income insecurity, and other stressors of the pandemic. Historically, these burdens were concentrated in the low-income population, with an emphasis on people of color. Therefore, it follows that the grace and concern extended during the pandemic still reflects bias against socioeconomically disadvantaged groups and empathy towards higher-income people. In many instances, laws that are equally applied to all individuals widened the gap between people at different places on the socioeconomic continuum. People facing additional hardships need extended grace periods for rent and utility payments. The short-term solutions instituted during COVID-19 did not address the digital gap, the needs of formerly incarcerated people, or the reality that low-income groups will inevitably experience the same unstable situations they were in prior to the pandemic. Individuals who are more likely to be affected by housing instability belong to socioeconomic groups that are being disproportionately and adversely affected by COVID-19. These compounding demographic factors complicate the legal response to housing problems. Recommendations for mitigating the negative effects of policies and regulations focus on addressing issues omitted from the COVID-19 housing laws, expanding the laws that were put into place, and targeting the underlying causes of housing instability in order to proactively prevent such instability.

Australian Property Law Bulletin (2020) 35(4)-(5)

On 7 April 2020 the Australian Prime Minister announced that the National Cabinet had agreed to a Mandatory Code of Conduct for small to medium enterprises (SMEs), outlining commercial leasing principles to be implemented during the COVID-19 pandemic (National Code). The National Code applies to tenants that suffer financial stress or hardship as a result of the COVID-19 pandemic, as defined by their eligibility for the Commonwealth Government's Job Keeper program, with an annual turnover of up to $50 million. While the National Code is intended to apply nationally, each State and Territory is responsible for its practical implementation.Volume 35, issues (4) and (5) of theAustralian Property Law Bulletin comprises a nationwide analysis of the landlord and tenant relief measures during the COVID emergency enacted by each State and Territory under the umbrella of the National Leasing Code.
 
vol 35(4)
vol 35(5)
  • Christensen, Sharon, 'Landlord and Tenant Relief Measures during the COVID Emergency Completing the National Picture' 78-79
  • Campbell, Edward and Anja Giddings, 'ACT Response to COVID-19: "Leases (Commercial and Retail) COVID-19 Emergency Response Declaration 2020"' 80-81
  • Cameron, Max and Maria Amato, 'The Legislative Framework of the "COVID-19 Disease Emergency (Commercial Leases) Act" 2020 (Tas)' 82-87
  • Alberghini, Julia and Peter Beekink, '"Commercial Tenancies (COVID-19 Response) Regulations 2020" (WA)' 88-91
  • Hautop, Mark, '"Tenancies Legislation Amendment Act 2020" (NT)' 92-94
  • Blue, Christopher and Edward Watson, 'Queensland's Implementation of the Mandatory Code of Conduct for SME Commercial Leasing Principles during the COVID-19 Pandemic' 95-98

Bates, Justin, 'Housing During Lockdown' (2020) 23(4) Journal of Housing Law 68-71
Abstract: Reflects on the problems of housing provision during the coronavirus pandemic, and potential solutions. Examines the measures for combating homelessness, highlighting the uncertainties over eligibility and the importance of guidance on priority need. Discusses the temporary suspension of possession proceedings, the lack of clarity over future policy when lockdown is lifted, and the pressures on private landlords regarding gas safety inspections.

Beard, Virginia, 'COVID-19: Poverty, Housing, Homelessness - A Broad View and a Picture from West Michigan' (SSRN Scholarly Paper ID 3613030, 28 May 2020)
Abstract: Housing...shelter...is a fundamental part of what it means to be human. The current COVID-19 public health crisis is causing economic hardship on families and individuals, hurting disproportionately people already living in tenuous economic situations. Sectors most severely impacted by the economic shutdown employ notable numbers of such families and individuals, who now are without jobs, receiving temporary unemployment assistance, without certainty that their jobs will again be made available. In order to mitigate the additional negative outcomes of these unprecedented twin global health and economic crises, policy makers across levels of government must work together to prevent an extreme loss of housing and the related negative consequences outlined in this paper. Given Michigan has experienced one of the worst sets of recessions over the last 20 years, it is an important case study in understanding the economic impact, particularly on housing, of these crises. This paper presents an overview of the concerns in the ability to pay for housing springing from the economic impact of the public health shutdowns using west Michigan as an illustrative example. It further recommends policy actions to mitigate the most negative impacts on housing access applicable both in Michigan and nationwide.

Benfer, Emily A et al, 'Public Health Amici Curiae Brief in Support of the Centers for Disease Control and Prevention Eviction Moratorium' (SSRN Scholarly Paper ID 3708504, 9 October 2020)
Abstract: Eviction moratoriums help reduce the spread of COVID-19. Millions of Americans entered the COVID-19 pandemic vulnerable to eviction due to a preexisting affordable housing crisis. The economic recession and widespread job loss resulting from the pandemic increased hardship among renters, who often lack savings to cover expenses during an emergency. COVID-19-related job and wage loss left millions unable to afford rent. This has created an unprecedented eviction crisis that disproportionately affects low-income populations and communities of color and increases COVID-19 infection and mortality. The Centers for Disease Control and Prevention ('CDC') issued an agency order ('CDC Order') to pre-vent evictions from spreading COVID-19 and worsening public health.Evidence suggests that eviction moratoriums effectively slow the spread of COVID-19. Without these moratoriums, evictions will likely increase to unseen heights, facilitating the transmission of infectious diseases, including COVID-19. Preliminary research and modeling demonstrate that eviction is associated with in-creased COVID-19 infection and mortality rates. The consequences of eviction (such as overcrowding, homelessness, and housing instability) increase contact with others and hinder compliance with the key strategies to contain COVID-19, including social distancing, self-quarantining, and hand hygiene. The people most at risk of eviction are particularly vulnerable to COVID-19. Low-income populations are often exposed to social determinants of poor health and have chronic illness or disability and, as such, are at risk of serious complications or death when they contract COVID-19. People of color are more likely to have lost jobs, face eviction, contract COVID-19, lack access to healthcare, and fall severely ill with the virus. Protecting public health during this pandemic re-quires protecting those most likely to contract, spread, and die from COVID-19. These deleterious health impacts and the spread of COVID-19 are tied to the act of eviction itself and are likely quite preventable if eviction is halted under the CDC's moratorium. The brief was prepared by Emily A. Benfer, the Yale Law School Jerome N. Frank Legal Services Organization, and the Southern Poverty Law Center in consultation with Yale School of Public Health faculty and with the aid of legal interns at the Wake Forest University School of Law and Yale Law School.

Benfer, Emily A, Solomon J Greene and Margaret Hagan, 'Approaches to Eviction Prevention' (SSRN Scholarly Paper ID 3662736, 28 July 2020)
Abstract: This Article provides a general overview of eviction prevention approaches and strategies that are currently being employed, or could be adapted, to prevent eviction and homelessness during the COVID-19 pandemic. This document provides an overview of strategies that could prevent or mitigate eviction for nonpayment of rent, including 1) eviction and foreclosure moratoria, 2) housing stabilization, 3) landlord relief programs, 4) equitable approaches to the eviction process, and 5) post-eviction mitigation measures. Many of these policies and interventions predate the COVID-19 pandemic, and were employed during the Great Recession of 2008, and could be adapted to the pandemic environment.

'Civil Procedure (Amendment No. 5) (Coronavirus) Rules 2020 - Evictions Ban Extended to 20 September - England and Wales' (2020) 277 Farm Law 9
Abstract: Highlights comments by Cecily Crampin of Falcon Chambers on the effect of the Civil Procedure (Amendment No. 5) (Coronavirus) Rules 2020, concerning the ban on evicting residential tenants in England and Wales that was introduced due to the COVID-19 pandemic, which is to be extended to 20 September 2020.

'Coronavirus: Affordable Homes' (2020) 23(5) Journal of Housing Law D88-D89
Abstract: Notes the July 2020 announcement by the Ministry of Housing Communities and Local Government that owing to delays arising from the coronavirus pandemic, new-build housing financed by the Affordable Homes Programme may begin by March 2023, rather than the original date of March 2022.

'Coronavirus: Civil Procedure (Amendment No.2) (Coronavirus) Rules 2020 (SI 2020/582) Made: 9 June 2020 - In Force: 25 June 2020'' (2020) 23(5) Journal of Housing Law D91
Abstract: Notes the passage of the Civil Procedure (Amendment No.2) (Coronavirus) Rules 2020, stipulating that previously stayed possession proceedings under the revised CPR r.55.29, together with new possession claims issued on or before 22 August 2020, are to be stayed until 23 August 2020. Highlights the range of claims to which the stay does not apply, and details the position under CPR PD 51Z (Stay of Possession Proceedings, Coronavirus).

'Coronavirus: Copeland v Bank of Scotland Plc [2020] EWHC 1441 (QB) Freedman J' (2020) 23(5) Journal of Housing Law D90-D91
Abstract: Notes Copeland v Bank of Scotland Plc (QBD) on whether it was appropriate to lift the stay imposed by CPR PD 51Z (Stay of Possession Proceedings, Coronavirus) in order to hand down a reserved judgment affirming a possession order against a mortgagor in arrears, subject to a stay of execution of the order and extension of time to appeal pursuant to PD 51Z.

'Coronavirus: Hackney LBC v Okoro [2020] EWCA Civ 681 Sir Geoffrey Vos, Underhill, Simler LJJ' (2020) 23(5) Journal of Housing Law D91
Abstract: Notes Hackney LBC v Okoro (CA) on whether the county court erred in staying, pursuant to CPR PD 51Z (Stay of Possession Proceedings, Coronavirus), an appeal against a possession order obtained in proceedings under CPR Pt 55, notwithstanding that appeals were governed by CPR Pt 52.

'Coronavirus: Letter to Large Providers, Regulator of Social Housing' (2020) 23(5) Journal of Housing Law D89
Abstract: Notes the July 2020 publication by the Regulator of Social Housing of an online letter to large private registered providers of social housing, notifying them of its intention to gradually increase its regulatory activity as the coronavirus pandemic subsides, and urging them to update their business plans.

'Coronavirus: Managing Safety and Risk in Temporary Accommodation, Welsh Government' (2020) 23(5) Journal of Housing Law D89-D90
Abstract: Notes the Welsh Government's May 2020 online publication of non-statutory guidance on managing anti-social behaviour in temporary accommodation during the coronavirus pandemic, including advice on the options to be exhausted before individuals are removed.

'Coronavirus: Protecting Rough Sleepers and Renters: Interim Report, Communities and Local Government Select Committee May 2020' (2020) 23(4) Journal of Housing Law D62
Abstract: Highlights the May 2020 interim report by the Communities and Local Government Select Committee on how to safeguard homeless people during the coronavirus pandemic and when the restrictions are eased, and the position regarding the possible implementation of a pre-action protocol on rent arrears for private landlords. Note: the Select Committee's Interim Report 'Protecting Rough Sleepers and Renters' is available on open access on the UK Parliament website.

'Coronavirus: Rough Sleeping after Coronavirus' (2020) 23(5) Journal of Housing Law D89
Abstract: Highlights the May 2020 announcement by the Ministry of Housing Communities and Local Government of its intention to deliver 3,300 new homes to vulnerable rough sleepers within the next 12 months. Notes the accompanying support to be made available, and the arrangements for interim accommodation.

'Coronavirus: TFS Stores Ltd v Designer Retail Outlet Centres (Mansfield) General Partner Ltd [2020] EWCA Civ 833 Sir Geoffrey Vos, Asplin, Arnold LJJ' (2020) 23(5) Journal of Housing Law D90
Abstract: Notes TFS Stores Ltd v Designer Retail Outlet Centres (Mansfield) General Partner Ltd (CA) on whether an appeal against a possession order made pursuant to a counterclaim for possession of a business tenancy was automatically stayed by virtue of CPR PD 51Z (Stay of Possession Proceedings, Coronavirus) and CPR r.55.29.

'Coronavirus: Wales, Welsh Government' (2020) 23(5) Journal of Housing Law D89
Abstract: Notes the Welsh Government's online coronavirus-related press release announcing that viewings of empty properties, and house moves involving sales agreed but not completed, may resume from 22 June 2020.

da Costa Afonso, Ana Isabel, 'The Juridical Impact of COVID-19 in Portuguese Tenancy Contract Law' in Ewoud et al Hondius (ed), Coronavirus and the Law in Europe (Intersentia, 2020)
Abstract: In response to the public health emergency derived from the COVID-19 disease, Portugal opted for a relatively strict lockdown. Most business activities were suspended and citizens were put under an obligation of confinement. This has created serious disruptions in people's life and professional activities. In this paper we will address the specific measures the Portuguese legislator put into force to solve the problems aroused in tenancy contracts, namely, the adjournment of the obligation to pay rent and the suspension of eviction's effects. Since the legislative measures do not have a general scope that could comprehend all of the tenancy contracts and provide only for a limited and very specific set of solutions, we believe that it is necessary to turn to other legal provisions of a more general approach in order to give an adequate response to the problems encountered in tenancy contracts as a consequence of the pandemic.

Cromarty, Hannah and Wendy Wilson, 'Coronavirus: A Ban on Evictions and Help for Rough Sleepers' (House of Commons Library, Briefing Paper No 08867, 25 June 2020)
Abstract: This briefing paper explains measures the Government has put in place during the coronavirus outbreak to assist households to retain their homes and to enable local authorities to tackle the specific challenges faced by rough sleepers. The paper is being updated regularly to take account of new developments.

Dovar, Daniel and Piers Harrison, 'Coronavirus: Code of Practice for Commercial Property' (2020) 24(4) Landlord & Tenant Review D26
Abstract: Notes a Government Code of Practice for commercial property relationships during the coronavirus pandemic the has now issued. Note: Link to the Code of Practice for Commercial Property

Ekhator, Ekhorutomwen Gabriel, Andrew Ogiribo and Samuel Iyobosa Ebughe, 'The Impact of Pandemics Such as the COVID-19 and Other Unforeseeable Events on Leases: Force Majeure or Frustration?' (SSRN Scholarly Paper No ID 3616831, 2 June 2020)
Abstract: In a world of unforeseen occurrences and unpremeditated events, anything can happen. However, following the security consciousness of mankind, parties to a leasehold contract are usually mentally and obligatorily inclined to secure their contract thereby putting measures in place to oblige each other to perform his part in the contract. One of these efficacious measures that have been adopted by parties to a leasehold contract is the making and signing of lease agreements. Many a times, the landlord and his tenant carefully and with the help of an astute lawyer, draft a lease agreement to outline their obligations under the contract. While doing this they are careful enough to input when and how the contract should be put to an end such as including a force majeure clause to the lease agreement. Sadly sometimes, unforeseen occurrences make the contract impossible to carry out by either of the parties. In a bid to put an end to the contract, most times the tenant, resort to the store room of weapons which is the lease agreement, seeking clauses that he may use against the landlord to put an end to their contract. Unfortunately, he does not find any useful because the events he leans upon was never included in the lease agreement nor was it part of the force majeure clause. The recent outbreak of the 2019 Novel Corona virus ('COVID-19') in China and its widespread over the world has caused many business activities to come screeching to a halt, as many countries issue orders and advisories for residents to stay at home and for any nonessential business activities to be performed remotely. During this period of COVID-19, many businesses and tenants such as students do not have access to their premises, and this has called for a legal answer to the effect of the stay at home order on the lease. This article seeks to answer the questions; do pandemics such as the COVID-19 give rise to a frustrating event or force majeure? What position should the parties take when other unforeseen or unpremeditated events such as war, government restrictions, strikes, natural disasters, and acts of God make the contract impossible of being performed? The article also examines the position of landlord and tenant in the country during this 'lockdown' order.

El-Haija, Mohammed Ibrahim Abu, 'Coronavirus Legislation and Obligations of Lessee in Jordan: Some Preliminary Reflections/Considerations' (2021) International Journal for the Semiotics of Law - (advance article, published 13 April 2021)
Abstract: This study focuses on discussing the choices of lessee in Jordan legislation because of a Defense Order in Curfew to face Corona Virus Disease 2019 and the impact of Corona virus disease 2019 (COVID-19) on the lessor obligation. The study finds out that the lessee has two options: to cancel the contract regarding force majeure or refuge to court and to reduce the fare amount regarding exceptional circumstances. The study also recommended issuing a Defense Order specifying the exact percentage to be reduced. In the absence of a Defense Order, the study of a friendly agreement should be recommended between the lessor and the tenant on the reduced percentage.

'Eviction of Travellers and the Significance of the Pandemic' [2020] (September) Housing Law Monitor 8-12
Abstract: Considers Chichester DC v Sullivan (HC) on whether evicting a large group of travellers from a site in an Area of Outstanding Natural Beauty, where there were no other authorised sites available, was a proportionate and necessary interference with the travellers' rights under ECHR art.8 and Protocol 1 art.1. Notes the court's consideration of the impact of the coronavirus pandemic on the analysis of proportionality.

Farha, Leilani and Kaitlin Schwan, 'The Front Line Defence: Housing and Human Rights in the Time of COVID-19' in Colleen M Flood et al (eds), Vulnerable: The Law, Policy and Ethics of COVID-19 (University of Ottawa Press, 2020) 355
Abstract: COVID-19 has laid bare the failure of Canadian governments to effectively implement the right to housing. In this chapter, we argue the pandemic presents Canada with the opportunity to correct the structural weaknesses of our housing system to ensure housing for all and reposition housing as a social good rather than a commodity. We explore how housing status has been determinative of outcomes for three vulnerable populations during the pandemic--people experiencing homelessness, survivors of intimate partner violence, and low-income renters. Their experiences demonstrate the urgent need for a rights-based approach to housing, highlighting the importance of breathing life into the National Housing Strategy and the National Housing Strategy Act. We argue that Canadian governments must act before this opportunity passes them by; otherwise they will find that though the pandemic itself is over, housing inequality has only worsened.

Furth, Salim, 'When the Moratorium Expires: Three Quick Steps to Reduce Eviction' (George Mason University, Mercatus Center Research Paper Series, Mercatus COVID-19 Response Policy Brief No ID 3664186, 19 June 2020)
Abstract: Eviction moratoria are set to expire across the country, unemployment is high, and many renter advocates are predicting a 'tsunami' of eviction filings. In a legal eviction, a landlord obtains a court judgment against a tenant who has violated his or her lease, either by causing a nuisance or damage on the property or failing to pay. To reduce exposure to COVID-19 for all involved, many localities suspended eviction procedures in March 2019. The sudden end of moratoria will almost certainly result in a surge in eviction filings, if only owing to pent-up requests. Policymakers can avoid a drastic shock to the rental market by encouraging renegotiation, limiting the pace of evictions, and creating incentives for landlord forbearance.

Gattegno, Julie, 'Tenant Rescue and the Cross-Class Cram-Down' (2020) 2039 Estates Gazette 54-57
Abstract: Compares the potential impacts on landlords of tenants entering company voluntary arrangements (CVAs) and adopting restructuring plans under the Corporate Insolvency and Governance Act 2020. Considers problems posed by CVAs and outlines grounds on which landlords might challenge them. Looks class composition under restructuring plans and explains the cross-class cram-down, a mechanism similar to that used for US Ch.11 insolvencies.

Gilman, Sam, 'The Return on Investment of Pandemic Rental Assistance: Modeling a Rare Win-Win-Win' (2021) Indiana Health Law Review (forthcoming)
Abstract: We are facing an eviction crisis. The COVID-19 pandemic, has sent our economy into a tailspin forcing countless Americans to choose between feeding their families or having a roof over their heads. Many low-income people, especially low-income people of color, are facing an unprecedented economic crisis with tremendous rates of wage reductions and job loss. This has resulted in millions of Americans being unable to pay their full rents, creating the legal grounds for their landlords to evict them. As of early December 2020, more than 19 million individuals lived in households behind on rent, and more than 30 million did not believe they could make next month's rent payments on time. For renters who are facing eviction and their landlords, the unpaid bills are piling up. Scholars, policymakers, and advocates have increasingly focused on a number of solutions to the eviction crisis including eviction moratoria and rental assistance, concluding that these solutions can stabilize households, especially when combined. Yet, the refrain is almost always that investing in national rental assistance programs will be expensive. However, few analysts have emphasized the financial costs of inaction. This paper presents an analysis that estimates the Return on Investment (ROI) of a number of different pandemic-related rental assistance programs by comparing the costs of rental assistance with the social costs of homelessness and displacement. As seen in Figure 1, this piece finds that rental assistance has a positive ROI of between 229%-473%. These ROI values point to the conclusion that failing to invest in rental assistance will cost dramatically more than making the investment now. The ROI analysis finds that rental assistance stabilizes both tenants and landlords, preserves neighborhoods, and protects government budgets over the long-term. More broadly the returns on rental assistance argue for a re-imagination of the eviction system. The conclusion that the estimated benefits of rental assistance eclipse the estimated costs of providing the funds by three or four times, suggests that rental assistance should supplant eviction as the social remedy for the inability to pay rent. In other words, keeping people in their homes during this pandemic and beyond is not only the right thing to do, economically it is the smart thing to do.

Gomez-Liguerre, Carlos and Rosa Mila-Rafel, 'Residential and Commercial Leases Amidst the Corona Crisis: The Spanish Case in Context' in Ewoud et al Hondius (ed), Coronavirus and the Law in Europe (Intersentia, 2020)
Abstract: The Spanish emergency lawmaker has been prompted to take protective measures for tenants during the COVID-19 crisis. Such measures distinguish between residential and commercial leases. All of them are presented in the present contribution from a critical perspective. Commercial leases deserve special attention due to their economic relevance, and because of the intense debate among Spanish scholars on the applicability of the rebus sic stantibus doctrine, or any of its equivalents, to adapt the contract if commercial tenants are affected by the exceptional measures imposed by the Government to deal with the COVID-19 health crisis.

Heath, Annabel, 'Lifting the Stay on Proceedings: More Questions than Answers' (2020) 381 Property Law Journal 6-11
Abstract: Discusses the stay on residential possession proceedings, introduced by CPR PD 51Z (Stay of Possession Proceedings, Coronavirus), which is due to end on 20 September 2020. Reviews the steps that landlords will have to take to reactivate claims after this date, referring to CPR PD 55C (Coronavirus: Temporary Provision in Relation to Possession Proceedings) and the regime governing claims issued on or after 3 August 2020. Anticipates the defences tenants facing eviction may raise.

Herro, Anthony, 'The Impact of COVID-19 on Commercial Leasing' (2020) 71 LSJ: Law Society of NSW Journal 90-91
Abstract: On 7 April 2020 the National Cabinet adopted the 'National Cabinet Mandatory Code of Conduct: SME Commercial Leasing Principles during COVID-19' (the Code). The purpose of the Code is to impose 'a set of good faith leasing principles for application to commercial tenancies' between landlords and eligible tenants (ie those who are eligible businesses under the Federal Government's JobKeeper program). The 'Retail and Other Commercial Leases (COVID-19) Regulation 2020' (the Regulations) gives effect to the Code in New South Wales. For the first time the Supreme Court of NSW has provided guidance on the implementation of the Code and the Regulations.

Hindle, Andrew, 'Coronavirus and the Private Rented Sector: An Update' (2020) 24(4) Landlord & Tenant Review 135-138
Abstract: Reviews developments in the private rented sector since the introduction of reforms made by the Coronavirus Act 2020, including a ban on forfeiture for non-payment of rent. Examines the position regarding stays of possession proceedings, commercial rent arrears recovery, moratoriums suspending creditors' rights, prohibitions on winding-up petitions and suspension of liability for wrongful trading.

'Homelessness Code of Guidance' (2020) 23(5) Journal of Housing Law D95
Abstract: Notes the amendments made to the Homelessness Code of Guidance from 29 June 2020 in response to the coronavirus pandemic, including advice that local authorities carefully consider applicants' vulnerability in regard to coronavirus.

Humphreys, Emma and Emma Preece, 'What Has the Covid-19 Code of Practice Achieved?' (2020) 2020 Estates Gazette 60-62
Abstract: Reflects on the performance of the Code of Practice for commercial property, which was published on 19 June 2020 to improve collaboration between landlords and tenants during the coronavirus pandemic. Lists the Code's key provisions and speculates on how the landlord and tenant relationship will be managed in the future.

James, Sue, 'We Have Another Government U-Turn but It Must Do So Much More to Protect Renters' [2020] (September) Legal Action 5
Abstract: Discusses the importance of face-to-face advice in possession cases, the probable method of listing possession claims after the stay imposed in response to the coronavirus pandemic, including the use of review hearings, and the Government's extension of the stay on possession cases until 20 September 2020. Suggests why better welfare benefit advice would help reduce rent arrears issues and reduce unnecessary court hearings.

Jebeile, Maged, 'Legislative Response to COVID-19 Applying to Property Transactions in New South Wales' (2020) 35(1/2) Australian Property Law Bulletin 19-22
Abstract: In what can only be described as unprecedented times, both federal and state governments seek to prepare for the impact of the COVID-19 coronavirus outbreak. The 'COVID-19 Legislation Amendment (Emergency Measures) Bill 2020' (NSW) was passed by both houses of NSW Parliament and received assent on 25 March 2020. Institutions such as NSW Land Registry Services (NSW LRS), NSW Office of the Registrar General (ORG) and the Australian Registrars National Electronic Conveyancing Council (ARNECC) have released statements setting out some guidance on conveyancing practices in response to increased social distancing measures put in place by the federal government. The federal Treasurer has announced changes to Australia's foreign investment review framework. This article sets out an outline of the legislative response to COVID-19 and new conveyancing practices applying to property transactions in New South Wales.

Jebeile, Maged, 'National Response to COVID-19: Business Loan Relief Packages and Code of Conduct for Commercial Leases' (2020) 35(3) Australian Property Law Bulletin 42-45
Abstract: On 30 March 2020 the Australian Competition & Consumer Commission (ACCC) granted interim approval for the Australian Banking Association and banks to co-operate to offer COVID-19 affected Business Loan Relief Packages (including Landlords). On 7 April 2020, the National Cabinet approved a mandatory Code of Conduct (

Jones, Gareth Lynton, 'How Can Landlords Boost Cash Flow?' (2020) 2036 Estates Gazette 43
Abstract: Offers advice for commercial landlords on how to adjust operating models and improve cash flow in light of the COVID-19 pandemic. Warns of the potential pitfalls of turnover rents. Considers how the type of economic recovery might affect a landlord's cash flow, the lender-landlord relationship, possible repercussions of evicting non-paying tenants, and operating model outsourcing.

Langowski, Jamie et al, 'Qualified Renters Need Not Apply: Race and Housing Voucher Discrimination in the Metro Boston Rental Housing Market' [2020] Georgetown Journal on Poverty Law Policy (forthcoming)
Abstract: Black, Indigenous, and People of Color have long had to navigate the barriers of racist laws, policies, and actions in housing. Housing discrimination perpetuates segregation and contributes to maintaining the status quo of disparities with respect to health inequities as well as income, wealth, and opportunity gaps. The COVID-19 pandemic has put these inequities in stark relief. Data on the current status of such discrimination is valuable for policy makers who should develop anti-racist policies that dismantle structural racism and its attendant harms.Using matched-pair testing, we measure the level of discrimination based on race and income level in the Greater Boston rental housing market, where both race- and income-based housing discrimination is illegal. Data from the study show high levels of discrimination against both black people and individuals using housing vouchers throughout the pre-rental application.

Layser, Michelle D et al, 'Mitigating Housing Instability During a Pandemic' (University of Illinois College of Law Legal Studies Research Paper No 20-15, 29 May 2020)
Abstract: Housing instability threatens to impair the United States' policy response to the COVID-19 pandemic by undermining public health strategies such as social distancing. Yet, mitigation of housing instability has not been the focus of early emergency legislation, including the Coronavirus Aid, Relief, and Economic Security Act (CARES Act), which has focused on providing cash support to individuals and businesses. Although many of these laws have the potential to reduce housing instability, this Working Paper argues that they face barriers to effective implementation and take-up akin to those that hindered similar interventions during the Great Recession. These barriers--which include administrative hurdles, reliance on voluntary participation, resource constraints, and political pushback--may prevent these interventions from realizing their full potential. As a result, despite the unprecedented amount of aid that the CARES Act directs to individuals, the implementation of these aid programs may fail to effectively mitigate housing instability. For this reason, additional rental assistance and mortgage payment assistance may be necessary to prevent loss of housing that ultimately exacerbates the public health crisis. We also recommend a new civil right to counsel in eviction cases and targeted place-based interventions to promote affordable housing development where it is needed most.

Lehavi, Amnon, 'Temporary Eminent Domain' [2021] Buffalo Law Review (forthcoming)
Abstract: Times of emergency call for drastic measures. These steps may include the physical takeover of privately-owned assets by the government for a certain period of time and for various purposes, aimed at addressing the state of emergency. When will such acts amount to a taking, and what compensation should be paid to the property owner? How do temporary physical appropriations during times of emergency diverge, if at all, from temporary takeovers in more ordinary times? The doctrinal and theoretical analysis of potential temporary takings has been done mostly in the context of non-physical government intervention with private property, such as when a local government imposes a temporary moratorium on land development until a certain condition is met. This Article focuses, however, on less investigated scenarios of temporary physical takeovers or other forms of government invasions. It seeks to identify the differences between a temporary invasion and a permanent occupation of property considered per se taking under the Loretto rule. In so doing, this Article argues that while the alleged distinction between prevention of public harm and promotion of public benefit often proves untenable in evaluating whether a permanent government measure constitutes a taking, it might make more sense in exploring temporary acts.Temporary eminent domain - referring here to various types of acts amounting to time-limited physical takings, even if not initially recognized as such by the government - may diverge from permanent eminent domain in yet another key element: identifying the basis for just compensation. Under long established (although often criticized) rules, compensation for a permanent taking is based on identifying the 'fair market value' of the rights taken, while ignoring the effects that the public use for which the underlying asset is taken might have on the property's long-term value. The allegedly parallel metric used in the case of temporary takings, one of 'fair rental value,' may often prove inadequate, both practically and normatively. This Article argues that because of unique aspects of temporary physical takings, legal rules on compensation should often seek to identify lost profits or actual damage. Moreover, in some cases, in which there is a direct relation between the pre-appropriation use of the asset and its post-appropriation use by the government, just compensation might also be based on a certain portion of the value of the public use. This is especially so when the time-sensitive value of the asset during such public use is particularly high. On this point, the Article offers an analogy to rules pertaining to compulsory licenses for patents.

Martin, Chris, 'Australian Residential Tenancies Law in the COVID-19 Pandemic: Considerations of Housing and Property Rights' (2021) 44(1) UNSW Law Journal 197
Abstract: In response to the COVID-19 pandemic, Australian states and territories implemented eviction moratoriums and measures to vary rent obligations - a remarkable response for jurisdictions that have, for decades, regulated residential landlord-tenant relations on a model of mild consumer protection, market rents and ready termination. This article examines the COVID-19 emergency measures and their implications for tenants' housing rights, and landlords' property rights. After reviewing the Australian rental housing system's structure and legislative framework, the article examines in detail the COVID-19 emergency measures regarding evictions and rents in each state and territory. These vary in form and content, mostly on a pattern of additional protection from eviction for a core 'hardship' group, and variation of rents by individual negotiation. The article considers problems in the emergency measures, and points on which enduring reforms may be built, as well as critically appraising the argument that property rights protections limit the scope for reform.

Martin, Chris, 'A Brief History of Australian Residential Tenancies Law Reform: From the Nineteenth Century to Covid-19' (2020) 33(5) Parity 4-6
Abstract: Australia is currently going through a period of unusual activity in residential tenancies law reform. New South Wales, Victoria and the Australian Capital Territory (ACT) have recently concluded reviews and amended their legislation, and Queensland, Western Australia and the Northern Territory are currently in the midst of reviews. South Australia and Tasmania reviewed and amended their respective Acts a little before the current wave of reform, both in 2013. The federal government has also indicated its interest, nominating 'tenancy reform that encourages security of tenure in the private rental market' as a 'national housing priority area' under the current 'National Housing and Homelessness Agreement' (Schedule A2). And breaking over the current wave of law reform are the Covid-19 emergency amendments, implementing eviction moratoriums and temporary regulations around rents.

Mashishi, Thato, 'To Pay or Not to Pay in the Context of COVID-19' (2020) 20(5) Without Prejudice 55-56
Abstract: To pay or not to pay has become an imperative question asked by retail tenants in the context of rental due pursuant to lease agreements. The question is raised in the wake of an extension of the lockdown as announced on 9 April by President Cyril Ramaphosa.

Mukherjee, Gaurav, 'Evictions, Demolitions, and Responsive Constitutionalism in the COVID-19 Lockdown in Cape Town' (SSRN Scholarly Paper No ID 3744891, 8 December 2020)
Abstract: In this article, I comment on the judicial responses to several incidents of eviction and demolition of illegal structures during the COVID-19 lockdown by Cape Town City officials, including members of the Anti Land Invasion Unit. The cases implicate complex legal questions, many of which are heavily contingent on factual situations: first, whether it was permissible for City Officials to conduct evictions and demolitions when they had been specifically disallowed by section 36(1) of Alert Level 3 Regulations; second, whether the protections afforded by the PIE Act extends to structures which may not be fully completed nor occupied; third, the relationship between the common law remedy of counter-spoliation and its applicability to situations of land invasion where housing rights and judicially supervised eviction and demolitions are concerned, and fourth, the constitutionality of the manner of determination of whether a structure is built or occupied - the response to which determines whether the provisions of the PIE Act kick in. Finally, I also comment on the accountability of private actors tendered to carry out evictions and demolitions - which may create perverse incentives to maximize their numbers, with little regard for constitutional safeguards.

Mysiak, Piotr, Volodymyr Zubar and Dmytro Pestruiev, 'Conducting Other People's Affairs Without a Power of Attorney in a Pandemic: Poland and Ukraine' 9(2) Ius Humani. Law Journal 87-110
Abstract: The Covid-19 coronavirus pandemic has caused changes in all areas of human life. The field of law is no exception to this list. In particular, the issues of conducting other people's affairs without a power of attorney have become especially relevant, as social distancing and restrictions on social activity have led to a significant increase in the practical need for the application of this legal institution. The significance of this study is also important in connection with the comparative analysis of the normative aspect and the practical measurement of the application of the institute of conducting other people's affairs without a power of attorney in Ukraine and Poland. These two countries are comparable in territory, number of citizens, legal tradition, but Poland has become member of the European Union, while Ukraine has remained on the sidelines of European civilization. The dialectical method, the method of comparative analysis and system analysis were chosen as the methodological basis of the research. The authors of the article concluded that institute of conducting other people's affairs without a power of attorney is characterized by an increased level of social utility. In such cases, the one who protects the interests of others without a power of attorney, as a rule, acts not only in the interests of the individual but also in the interests of the society. Thus, it helps to protect single people, the elderly ones, disabled individuals and other groups which are socially unprotected and thus prevent the pandemic spread.

Njiri, Kenneth, 'The Tenants' Right to Housing in Kenya: Is There Need to Address This Issue during the Covid-19 Pandemic' (SSRN Scholarly Paper No ID 3582391, 22 April 2020)
Abstract: The Covid-19 pandemic has changed the lives of people in the world. Most of the governments have imposed restrictive measures on movement and association to ensure that the disease does not spread further into their countries. The government of Kenya has imposed a curfew to restrict movement of the disease. Further, there are regions in Kenya where movement into and out of those regions has been curtailed. The livelihoods of Kenyans from all walks of life have been distracted. Jobs have been lost. The economy of the country is dwindling. Kenyans have been advised to stay at home. The prevailing circumstances have forced some of the Kenyans to stay at home.The directive to stay at home to fight the pandemic presents a unique situation in the country. It requires people to stay indoors to reduce the transmission of the illness. The ball falls into the court of each and every citizen to seek shelter. However, due to the loss of jobs, most of the Kenyans wonder whether they will have shelter. The tenants, who have no source of income at the moment, wonder where they will get the money to pay their landlords to ensure they are not kicked out of their houses. Further, due to the declining economy, most of the tenants do not have sufficient cash to pay their rent. Failure to pay rent will render them homeless. Is there need to address this issue? Should we allow the landlords to deal with the tenants who do not pay rent? In my paper, I seek to address this delicate issue. To begin with, I will balance the rights between the landlord and the tenant. Later, I will recommend on what is to be done to ensure that this issue is resolved amicably.

Novasky, Michael and Tina Rosales, 'Mental Health And Homelessness In The Wake Of Covid-19: The Path To Supportive And Affordable Housing' (2020) 168(Special Issue: Law Meets World) UCLA Law Review Discourse 130
Abstract: The COVID-19 pandemic has shone a bright light on the public health crisis faced by people experiencing homelessness, and particularly those with mental illnesses. The lack of clean, safe, and affordable housing in the United States's largest cities, and the limited access to supportive care for people experiencing symptoms of mental illness, is emblematic of not just this current crisis, but of the longstanding inadequacies in our housing policies and the need for swift, long-term action to address them. While cities are stuck responding to this emergency with temporary measures to protect residents of their emergency shelter systems by moving them away from crowded congregate care settings to other forms of temporary housing, advocates are pushing for more comprehensive plans which appear to be gaining some political traction. In turn, many of these emergency solutions may have planted the roots of a healthier and more humane model of temporary housing, one that better addresses the needs of the chronically homeless and those suffering from mental illnesses. Now is the time to create a model for addressing our homelessness crisis that is based on affordable, stable, and supportive housing and, more importantly, on a human right to guarantee that it is permanent and available to all.

Ominde, Daniel, 'Challenges Posed by the Outbreak of COVID-19 and the Need for a Presidential Directive to Protect the Poor from the Whims of Unscrupulous and Inhuman Landlords' (SSRN Scholarly Paper No ID 3703335, 25 April 2020)
Abstract: This paper was written when the COVID-19 pandemic had just started spreading in Africa, and specifically Kenya. The paper took into account the fact that Kenya is a third world country, where many people live from hand to mouth. It also factored in the reality that many Kenyans are engaged in the informal sector which was struck so hard by the pandemic. The paper acknowledged that those effects negatively impacted on the ability of many Kenyan to pay their rents and meet other basic needs at the same time. Many Kenyans, therefore, faced eviction, from their residents as they had to strike a delicate balance between rent and food.This paper sought to encourage the President of the Republic of Kenya to issue an Executive Order that would have seen the landlords and tenants (who could not afford rent during the pandemic) enter agreements to pay rent after the pandemic. Additionally, the paper required such Order to also trigger agreement between real estate investors and mortgagors to suspend the payment of mortgage for debtors who could not afford the same during the pandemic. These arrangements were meant to ease the satiations of many Kenyan who were deprived of socio-economic rights under Article 43 of the Constitution of Kenya 2010.

Palumbo, Andrea and Karmen McQuitty, 'Tenant Rights in the Era of Covid-19' (2020) 77(5) Bench & Bar of Minnesota 36-38
Abstract: Do you remember what you thought when you realized the magnitude of the covid-19 pandemic? Did you worry about whether you'd be able to pay your rent or mortgage? Or that you would suffer financially? For millions of people the financial impact was, and continues to be, a significant result of this pandemic. For renters in particular, the pandemic has presented unique challenges--both in paying rent and seeking relief under current (and future) leases. The law governing landlords and tenants is codified in Minnesota statutes and city ordinances. Evictions are one part of landlord/tenant law, and certainly the most contentious. An average of 17,000 evictions are filed every year in Minnesota.1 Hennepin and Ramsey counties account for the lion's share of filings and more than a third of the evictions in the state. Evictions can be filed for nonpayment of rent, breach of the lease, or holding over after a notice to vacate. The majority of cases filed are against tenants who have not paid rent under their lease. By design, most eviction cases move quickly. Minnesota law requires that the first appearance in a case occur between seven and 14 days after a summons is issued.2 Expedited cases, brought on the basis that a renter is causing a nuisance, engaging in illegal activity, or endangering the safety of other residents or the landlord's property, move even faster. These are summary proceedings and a tenant's first appearance is often their only appearance in the case.

Price, Shannon, 'Stay at Home: Rethinking Rental Housing Law in an Era of Pandemic' (2020) 28(1) Georgetown Journal on Poverty Law & Policy 1-33
Jurisdiction: USA
Abstract: For more than a decade, scholars across disciplines have documented housing insecurity as a chronic condition of working poverty in the United States. Now, the COVID-19 economic crisis threatens a tsunami of pandemic-induced evictions. Widespread government mandates to 'stay at home' ring hollow as eviction filings pile up in local courts, while tenant blacklisting ensures that the consequences of an eviction today will haunt a tenant for years. By offering an in-depth survey of lease-termination requirements and the role of housing conditions and retaliatory eviction across states, this Article illustrates the practical impact of subtle variations in landlord-tenant law on poor tenants facing eviction. It reviews a sampling of state housing policy responses to the pandemic and proposes concrete reforms to the law designed to mitigate power imbalances between landlords and tenants and slow the cogs of the Eviction Economy. The COVID-19 pandemic is a tragedy of unprecedented scale. It is also a call to action. The decisions that state and local governments make on housing policy in the coming months will alter the course of thousands of lives. America's Eviction Economy stands to compound the worst economic effects of the pandemic. It is the sincere hope of the Author that state and local governments do not allow this result.

Ramadhani, Rahmat and Rachmad Abduh, 'Legal Assurance of the Land Registration Process in the Pandemic Time of Covid-19' (2021) 4(1) Budapest International Research and Critics Institute (BIRCI-Journal): Humanities and Social Sciences 348-358

Jurisdiction: Indonesia
Abstract: Circular work from home for land office employees needs to be examined whether there is a change in the mechanism in legal certainty of land registration during the Covid-19 pandemic, whether the process of measuring land and signing witnesses whose land borders comply with health protocols outside the land office, especially in the field. The issues that will be studied are the implementation of the land registration process during the Covid-19 pandemic and legal certainty in the implementation of the land registration process during the Covid-19 pandemic. The results show that the land registration process during the Covid-19 pandemic is still the same as before this outbreak, and regarding legal certainty, there are no specific rules regarding the obligation to comply with health protocols when undergoing the land registration process, especially in the field.

Schindler, Sarah and Kellen Zale, 'How the Law Fails Tenants (And Not Just During a Pandemic)' (2020) 68 UCLA Law Review Discourse 146
Abstract: In the wake of the COVID-19 pandemic, all levels of government are considering how to protect public health by keeping people in their homes, even if they can no longer afford their monthly mortgage or rent payments. The protections that have emerged thus far have been far more protective of homeowners than renters. This essay exposes how the disparity in legal protections for these two groups is not unique to this pandemic. Rather, the crisis has merely uncovered longstanding, deep-rooted patterns within legal doctrines, governmental programs, and public policies that bestow favorable treatment upon homeowners at the expense of renters. This essay situates the current crisis within our existing research addressing the disparate treatment of renters and owners. It examines the historic distinctions between freeholds and leaseholds that have resulted in different treatment of the two groups, exposes the ways the existing legal doctrine primarily harms poor people and people of color, and proposes steps that can be taken to bring more parity to the legal treatment of renters and owners.

Scott, Gary, 'Introduction of Mandatory Electrical Safety Checks for Residential Tenancies' (2020) 24(5) Landlord & Tenant Review 191-192
Abstract: Highlights the implementation of the Electrical Safety Standards in the Private Rented Sector (England) Regulations 2020, and examines their key requirements. Reviews the compliance deadline for existing tenancies, the procedure in the event of breach or non-compliance, the potential penalties available, and whether the Regulations' operation has been affected by the coronavirus pandemic.

Skerratt-Williams, Sian, 'COVID-19: The Welsh Perspective' (2020) 2017 Estates Gazette 58
Abstract: Explains how and why certain responses to the coronavirus pandemic by the National Assembly for Wales differ from those adopted by the UK Parliament. Focuses on business and residential tenancies, health protection and business support measures.

Skolnik, Terry, 'The Punitive Impact of Physical Distancing Laws on Homeless People' in Colleen M Flood et al (eds), Vulnerable: The Law, Policy and Ethics of COVID-19 (University of Ottawa Press, 2020) 287
Abstract: One of the hallmarks of COVID-19 is that it disproportionately impacts vulnerable individuals and groups. The State's punitive legal responses to the pandemic are no different. This chapter shows why coercive physical distancing laws disparately impact homeless people. It argues that harsh financial penalties for violating these laws can constitute cruel and unusual punishments that contravene s. 12 of the Canadian Charter of Rights and Freedoms. It challenges prevailing s. 12 Charter jurisprudence and demonstrates why expensive fines amount to cruel and unusual punishments even when judges have discretion to modify their severity. After situating the regulation of homelessness within its historical context, it concludes by setting out why homeless people are uniquely vulnerable to over-policing. Ultimately, this chapter elucidates why a public health approach to both COVID-19 and homelessness are necessary and why neither can be punished out of existence.

Stevenson, Douglas, 'Shutdown, Frustration & Property Contracts' (2020) 233(Spring) Writ 25-26
Abstract: Considers the doctrine of frustration as it applies to property contracts during the COVID-19 crisis. Refers to cases on war-time frustration and their application to leases and contracts for the sale of land. Suggests that the concept of partial excuse for breach of contract may be applicable.

Tay, Eu-Yen, 'Frustration, Not Fortitude: The Case for Applying the Doctrine of Frustration to Leases Affected by COVID-19' (SSRN Scholarly Paper No ID 3621875, Social Science Research Network, 8 June 2020)
Abstract: The impact of the COVID-19 pandemic on retail businesses raises the pertinent question of whether commercial leases can be deemed to be frustrated, so that tenants may be released from their rental obligations. Focusing on the plight of restauranteurs, but relevant to the retail sector in general, this paper discusses the doctrine of frustration with respect to restaurant leases affected by the COVID-19 crisis. It puts forward the view that the doctrine does, and should, apply to these leases in these COVID-19 circumstances, not least because in spite of Government relief measures, frustration may be the only way out for restauranteurs.

Taylor, Dean, 'Housing Law and Airbnb Amidst Covid-19' (2020) 23(4) Journal of Housing Law 62-67
Abstract: Notes the amendments made to the Homelessness Code of Guidance from 29 June 2020 in response to the coronavirus pandemic, including advice that local authorities carefully consider applicants' vulnerability in regard to coronavirus.

Tokarz, Karen L et al, 'Addressing the Eviction Crisis and Housing Instability Through Housing Court Mediation' [2020] _Washington University Journal of Law and Policy, Forthcoming_
Abstract: The United States faces a massive eviction crisis. There were 128.6 million households in the United States in 2019, of which 37% were renters; of those 47.6 million renter households, more than two million, or one in every twenty-five, were at risk of losing their homes through evictions. Current and future economic challenges, such as that brought on by the Covid-19 pandemic, will inevitably increase evictions and exacerbate housing instability. While eviction lawsuits are an important legal remedy, evictions lead to homelessness, harm family member health, cost landlords money, destabilize the housing market, disrupt neighborhoods, increase crime, and overwhelm the courts. Many aspects of mediation make it a more just and effective dispute resolution approach than court evictions. This Article demonstrates the effectiveness of mediation and advocates for increased use of mediation to decrease evictions and housing instability.

Vyas, Nisha N and Matthew Warren, 'From Commodities To Communities: Reimagining Housing After The Pandemic' (2020) 168(Special Issue: Law Meets World) UCLA Law Review Discourse 190-202
Abstract: While COVID-19 is not the root cause of housing insecurity, the pandemic has pulled hundreds of thousands of Californians to the precipice of housing loss. This Article describes the existing eviction process that values individual property rights over the human right to housing, and describes proposed legislative solutions to prevent evictions en masse before considering urgent long-term changes. This moment calls for us to question the historical commodification of property, and to more towards a system that treats housing as a social good necessary for public health rather than a commodity to generate wealth for the privileged few.

Wagner, Jennifer K, 'Health, Housing, and "Direct Threats" during a Pandemic' 7(1) Journal of Law and the Biosciences Article lsaa022
Abstract: The COVID-19 pandemic brought into stark relief the intimate nexus between health and housing. This extraordinary infectious disease outbreak combined with the astounding lack of a clear, coordinated, prompt, and effective public health response in the United States created conditions and introduced practical challenges that left many disoriented--not only health care providers but also housing providers. Projected health care surges sent health care providers scrambling for ways to procure personal protective equipment for employees; to develop and implement clinical triage policies for the responsible and fair allocation of scarce critical care resources to COVID-19 and non-COVID-19 patients; and to make ethically and scientifically sound decisions regarding the conduct of research during the pandemic. Concurrently, individualized directives for self-quarantining and isolation as well as localized and statewide 'stay at home' orders sent housing providers scrambling to make sense of their own ethical and legal responsibilities. Innumerable issues are worth examination, such as implications of moratoria on evictions and foreclosures, the triggering of force majeure clauses in contracts, insurability of pandemic-related damages and disruptions, holdover tenancies and delayed occupancies, and even possible abatement of rent or homeowner/condominium association dues in light of closed common facilities (such as fitness areas) or reduced benefits to be enjoyed with residential property; however, this article focuses on fair housing law and the 'direct threat' exemption during a pandemic; finds it unlikely that COVID-19 is a disability, likely that the 'direct threat' defense is available, and both determinations to be case-specific inquiries dependent upon rapidly-changing scientific understanding of this disease. By highlighting adequate housing as a human right for which the government has primary responsibility for ensuring its achievement, this article underscores the importance of finding a holistic solution to public health and adequate housing problems in the U.S. before the next public health emergency arises.

Wolf, Michael Allan, 'COVID-19 Pandemic and Real Property Law: An Early Assessment of Relief Measures for Tenants and Residential Mortgagors' (SSRN Scholarly Paper No ID 3623281, Social Science Research Network, 9 June 2020)
Abstract: This Special Alert for Powell on Real Property looks at governmental measures, enacted on an emergency basis, regarding real property during the COVID-19 pandemic -- especially moratoria on residential evictions and foreclosures. The Alert uses examples of COVID-19 emergency measures by state governments as well as examples of emergency measures by the federal government. It anticipates ongoing changes to such measures as the COVID-19 situation evolves, suggesting that we not wait until the governmental measures abate before considering their impact and implications. The current stream of property-related COVID-19 litigation promises to become a flood. Litigators are relying on provisions of federal and state constitutions to challenge the emergency measures on behalf of landlords, lenders, and business owners. The Alert identifies several key U.S. Supreme Court precedents that will almost certainly form part of the judicial response to those challenges. Those cases, discussed in the Alert, provide the foundation for judicial consideration of the constitutional legitimacy of eviction and foreclosure moratoria.

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