When the Justice systems fails, the “Rule of Law does not exist & Law as an “Autopoietic” system does not work”—— When the System fails, laws & lawyers become or evolve into tools of injustice, oppression & taking, rather than swords & shields fighting for justice and equality.
LegalScoops cites that “Corruption in the judicial system breaks the basic principle of equality before the law & deprives people of their rights to a fair trial” In a corrupt or failing judicial system, money, influence and politics may decide which cases are prioritized or dismissed. Think about the draconian mandates that awarded tenants in all classes, rent and eviction protections over the fundamental rights of property owners.
Today, America’s weak and eroding property rights are harming those most in need and destroying & dismantling the foundations of property ownership, and never more than in the past 2-1/2 years. Not since our Governments Lunacy of the Lockdowns have so many property rights been violated.
According to the Atlantic Magazine “Constitutional protections for property rights began weakening in the early 20th century. That shift was largely driven by progressive’s perception that property rights mainly benefit the wealthy and that they (property rights) were an obstacle to benevolent expert social planning. Expert Social Planning? Is that a Joke?
Let’s now fast forward for just a moment and report on some of the results coming out of the moronic emergency orders and protections that only benefitted a single class of citizen which is a clear violation of our states constitution;
- After 2 1/2 years we still have tenants claiming Covid protection and seeking relief against landlords.
- After 2 1/2 years we still have criminal and opportunistic tenants refusing to pay rent with some tenants accumulating balances anywhere between $5,000 to $165,000 in back rent & damages. (And that’s just under our management control)
- After 2 1/2 years we are now witnessing traditional Real Estate Attorney’s refusing to take and prosecute cases in the city of Los Angeles and in some areas of Los Angeles county. A clear indication of the constipation in our judicial system.
- After 2 1/2 years we’ve seen the cost of a typical residential non-contested eviction go from approximately $1000 to now $2500 and more depending on the number of forms needed for filing. Commercial evictions are ranging from $2500 to $10,000 and that’s before we file any civil suits for recovery of passed due rents or property damages for restoration of the property. Our experience now tells us that an additional $20,000 to $60,000 in additional legal defense is often needed for recovery. We call this “The Lawyers Full Employment Act”
Then when we make it to court we witness most judges lacking any spine to consider the most fundamental facts over the emotional and fictional defenses of a nonpaying tenant. Seriously, the tenant has either paid rent or not paid rent, it’s really that simple. But these often coward judges now see their roll as some social justice warrior giving more credit for some fictional defense than the facts of a nonpaying tenant. In addition, these same judges fearing political criticism fail to issue fair decisions for property owners thinking instead they might be adding to the homeless population if they don’t side with the tenant. Judges also force the landlords and tenants with counsel out of the courtroom & into the hallways of injustice to work out a deal before you come back into the courtroom. That’s forcing Landlords to take less (sometimes far less) than what is contracted for and often still giving tenants extended possession before giving the property owner possession in a Lockout. These are forced negotiations, forced compromise and forced compliance and nothing short of a Regulatory Taking. That’s right, it’s condemnation without compensation.
Let’s quickly review what’s in the constitution itself; The Fifth Amendment mandates that the government can only take private property for “public use”. The Atlantic magazine says, “this taking of private property is a crucial constraint on government power of eminent domain which enables the State to force owners to turn over their property to the State“
During the 18th and 19th centuries courts usually interpreted public use as either government or private ownership…… just think back to those days when cities had redevelopment districts and large malls, lifestyle retail centers and entertainment areas were created. So how do local & state lawmakers justify these regulatory takings…..nowadays it’s a public emergency, Covid, SARS or soon, a simple stuffy nose. Then how does our judicial system get away with such injustice with long periods of delay’s & arbitrary decisions when the tenants defense is clearly fictional and based on emotions not facts. Unfortunately the pandemic provisions enacted by local, state and federal agencies still remain as some of the most harmful and ongoing regulatory cancers in our system and has empowered judges to make decisions based on politics & emotion rather than facts. This is a failure to enforce the most basic of Constitutional Private Property Rights.
Stay with me here, look at every major city with their General Plans, Zoning & Building requirements layered with exclusionary & inclusionary requirements. These include street widening, curb, gutter, sidewalks, utilities, street lighting, traffic mitigation, signaling, historic (hysteric) preservation, mandating all electric buildings & including solar and carbon offsetting requirements and of course set up mandatory recycling of all materials brought into/onto or exiting the property. The list of development requirements are truly staggering. Then add a host of mandatory developer fees to finance countless government wants & needs including line items for arts, park’s, schools, libraries, police & fire improvements, community open space and of course general unallocated impact fees. As an example, Systems Real Estate is currently consulting on a project with a value of about $160 million and the Impact Fees before the cost of permits, licensing etc is estimated at $10million dollars…..which will be passed thru to both residential and commercial tenants in increased rents and that’s even before we include a set aside for “affordable” units.
Here’s just one solution; remember most lawmakers are lawyers and they often craft laws to intentionally frame governments wants & needs, deceive or dodge responsibility and/or liability or to simply award one constituency over another. The Congress, the biggest & baddest body of lawmakers should craft a more defined set of standards to “takings” or condemnation, particularly regulatory takings because our founders never anticipated a society so intoxicated on regulations & litigation and never clearly outlined regulatory Takings. As such, today we are forced to fight it out in court in front of a judge with really no defined rules to guide us, except for historical cases and interpretations. It’s Time for some Congressional involvement to get back to the roots of what is clearly intended by our Constitution, PRIVATE PROPERTY RIGHTS.
Written by Tony Maniscalchi, Partner & Co-Owner at Systems Real Estate Management, Inc