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Conservative justices have upheld rent regulation laws in prior cases.

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I’ve read there are several cases challenging rent stabilization that could make their way to the Supreme Court. If that happens, what is the likelihood the court will do away with rent regulation in New York?

Five separate lawsuits challenging rent stabilization have been filed, but it is unlikely the U.S. Supreme Court will choose to hear any of them, says Sam Himmelstein, an attorney at Himmelstein, McConnell, Gribben & Joseph who represents residential and commercial tenants and tenant associations. 

The U.S. Court of Appeals for the Second Circuit has already ruled against two of these lawsuits, and the plaintiffs intend to appeal to the Supreme Court. These cases are focused on the Emergency Tenant Protection Act (ETPA), a law that protects rent-stabilized tenants’ right to have their leases renewed and restricts landlords to raising rents by a percentage determined each year by the Rent Guidelines Board. 

Other cases filed pose challenges to the Housing Stability and Tenant Protection Act, which was passed by the New York State legislature in 2019 and strengthened rent-stabilization laws in a number of ways. One case, for instance, takes aim at the new restrictions HSTPA imposed on a landlord’s ability to convert rent-stabilized apartments to co-ops or condos, or to claim a rent-stabilized apartment for themselves or a close family member. (See this Ask Sam column on how HSTPA changed “owner-use” evictions.) These cases have been argued in the Second Circuit court and are awaiting decisions. 

An 'unconstitutional infringement' on property rights?

The landlord groups behind these cases claim that these rent-stabilization laws represent an unconstitutional infringement on their property rights. If the Supreme Court were to hear any of the five lawsuits, it is possible that some—or even all—of the protections that rent-stabilized tenants are entitled to could be threatened.

But odds are that the court will not choose to weigh in on these cases at all, says Ellen Davidson, staff attorney with the Legal Aid Society. 

“If the Supreme Court takes these cases, it could represent a threat to rent stabilization, but it’s unlikely they will take them,” Davidson says. “There are many cases decided in the Second Circuit and other Circuit Courts that parties ask the Supreme Court to review, but the Supreme Court takes only a small percentage.” 

The Supreme Court considers every petition it receives, and at least four justices must say they want to hear the issue in order for a case to be taken by the court. The court may not get to these petitions in question before the end of their current session in June, Davidson says. 

Conservative justices' track record on prior cases

And even if the court were to take these cases, there are a number of reasons that it would not decide to strike down rent-regulation laws in New York. Even though the court is now conservative-leaning, for instance, conservative justices have upheld rent-regulation laws in prior cases. 

“At the heart of these challenges is a case from the '90s, which was decided 9-0 on a panel that included justices Thomas and Scalia. The decision from the Second Circuit, which the landlords are attempted to appeal was written by a George W. Bush appointee,” Davidson says. “This was not from a panel made up of left-wing justices, and in their decision, they said there exists decades of precedent on every argument that the landlords were making, and their claims were meritless.” 

Furthermore, the plaintiffs’ claims that rent regulation laws are unconstitutional could be difficult for them to demonstrate. 

“Not one of the landlords in these cases has tried to work under the new rules—they just say they are unable to,” Davidson says. “Before you say a law is unconstitutional, you’re supposed to be able to demonstrate the plaintiffs have been harmed, not that they think they might be harmed in some future scenario. So there’s a question of whether or not the landlords can even raise these claims.” 

Tenant groups would have their say

Also encouraging is the fact that tenant groups are part of the case, represented by the Legal Aid Society, Legal Services NYC and Selendy and Gay. Should the court take one or any of these five challenges to rent regulation, expect to see tenant groups and others weigh in through amicus briefs.

“We had a huge amicus strategy in the Second Circuit, and if you look at the court’s decision it’s very clear they read the briefs,” Davidson says. “Having different groups weigh in was incredibly helpful, and we’d do the same thing on steroids in the Supreme Court if these cases were heard there.” 

Finally, the essential question of whether the government may have a say over rental laws has already been decided many times in the past. 

“This is not the first time the court has considered rent regulation, and it has always upheld it,” Davidson says. “From their point of view, just like any other business, the government can regulate the landlord-tenant relationship, the regulation of landlords being not substantively different from the regulation of any other business.” 


Ask Sam: Are landlords less likely to take tenants to housing court because of the new rent laws? (sponsored) 

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Read all our Ask a Renters Rights Lawyer columns here.

Sam Himmelstein, Esq. represents NYC tenants and tenant associations in disputes over evictions, rent increases, rental conversions, rent stabilization law, lease buyouts, and many other issues. He is a partner at Himmelstein, McConnell, Gribben & Joseph in Manhattan. To submit a question for this column, click here. To ask about a legal consultation, email Sam or call (212) 349-3000.

Alanna Schubach

Contributing writer

Contributing editor Alanna Schubach has over a decade of experience as a New York City-based freelance journalist.

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