State-by-State Moratorium Differences: Which Variations Create Stronger or Weaker Takings Arguments?
Not All Moratoria Are Created Equal
While much attention has focused on federal eviction moratoria, the reality is that landlords across America faced dramatically different burdens depending on their state and locality. A landlord in Oregon received 100% compensation for lost rent. A landlord in Los Angeles received a maximum of $2,000—regardless of actual losses. A landlord in Minnesota faced a 15-month ban with zero compensation.^1^3^5^7^9
These variations are not mere details—they fundamentally affect the strength of landlords’ takings claims under the Fifth Amendment. This article analyzes the key factors that make some moratoria far more vulnerable to constitutional challenge than others.
The Framework: What Strengthens or Weakens Takings Claims
Before examining specific states, it’s critical to understand which factors matter for takings analysis:
Factors That STRENGTHEN Takings Claims:
- Broader prohibition on eviction (covering more reasons beyond just nonpayment)
- Longer duration (more months/years of lost rent)
- No or inadequate compensation for landlords
- No tenant eligibility screening (automatic protection regardless of hardship)
- No landlord ability to challenge tenant claims
- Prohibition on commencing eviction proceedings (not just completing them)
- Extension of lease terms beyond original expiration
Factors That WEAKEN Takings Claims:
- Narrow prohibition (only nonpayment; allows eviction for other reasons)
- Shorter duration (weeks/months, not years)
- Full or substantial compensation provided to landlords
- Rigorous tenant eligibility screening with verification
- Landlord right to challenge false tenant claims
- Permits commencing proceedings (only stays completion)
- Respects original lease term expiration
Tier 1: States That Provided Compensation (Constitutionally Compliant)
Oregon: The Gold Standard
Duration: March 2020 – June 30, 2021 (approximately 15 months)^2^11^13^15
Scope: Statewide prohibition on residential evictions for nonpayment^5^8
Compensation Provided:^10^12^14^8
Phase 1 (House Bill 4401, December 2020):
Phase 2 (Senate Bill 278, June 2021):
- Amended HB 4401 to compensate 100% of unpaid rent
- Applied retroactively to prior distributions
- $150 million allocated to Landlord Compensation Fund^12^14^8^10
How It Worked:
Landlords applied directly to Oregon Housing and Community Services (OHCS) for compensation covering rent unpaid after April 1, 2020. Applications were scored competitively, favoring small portfolio owners and highest unpaid rents.^13^2^12
Takings Analysis:
Oregon’s approach likely survives constitutional scrutiny. By providing just compensation (100% of lost rent), Oregon satisfied the Fifth Amendment’s requirement. As amicus briefs note:^8
“Oregon’s approach demonstrates it was feasible for states to comply with their Fifth Amendment obligation to compensate property owners for takings.”^2
Takeaway: Oregon’s moratorium was a taking (it appropriated landlords’ right to exclude), but Oregon paid for what it took, making it constitutional.^8
Tier 2: States With Moderate Duration, No Compensation (Strong Takings Claims)
Minnesota: Moderate Duration, Zero Compensation
Duration: March 16, 2020 – July 1, 2021 (approximately 15 months)^16^9
Scope: Statewide prohibition on all residential evictions except:^7^16
- Tenants who seriously endangered safety of other residents
- Tenants who significantly damaged property
- Tenants engaged in certain criminal activities^9
Eligibility: No tenant eligibility requirements—all tenants automatically protected regardless of COVID-19 hardship or financial need^7
Compensation: Zero provided to landlords^9
Impact: Eviction filings were 85-97% lower than historical average during the moratorium^7
Court Ruling:
The Eighth Circuit held this moratorium stated a valid claim for a per se physical taking in Heights Apartments v. Walz (2022). The court distinguished Yee v. City of Escondido and applied Cedar Point Nursery.^9
Takings Claim Strength: Very Strong
Strengthening Factors:
- 15-month duration = substantial lost rent^7
- Zero compensation^9
- No eligibility screening = all tenants protected regardless of need^7
- Broad prohibition except extreme circumstances^9
- Eighth Circuit precedent favoring landlords^9
Washington State: Long Duration, Minimal Compensation
Duration: March 18, 2020 – June 30, 2021 (approximately 15 months)^3^1
Scope: Governor Jay Inslee issued Proclamation 20-19 establishing a temporary moratorium on evictions^17^3
Compensation Provided: Washington appropriated $658 million to Department of Commerce to administer rental and utility assistance—but this went to tenants, not directly to landlords^17
Court Ruling:
The Washington Supreme Court held the moratorium did NOT constitute a taking—directly conflicting with the Eighth Circuit’s Heights Apartments decision. The case is now pending cert petition to the U.S. Supreme Court.^3^17
Takings Claim Strength: Strong (despite adverse Washington Supreme Court ruling)
Strengthening Factors:
- 15-month duration^1^3
- No direct compensation to landlords^17
- Conflicts with Eighth Circuit precedent, creating circuit split^17
- Broad prohibition on evictions^1
Tier 3: Cities With Extreme Duration, Minimal Compensation (Strongest Takings Claims)
Los Angeles: Nearly Four Years, $2,000 Maximum
Duration: March 2020 – January 31, 2024 (nearly four years)^18^20^2
Scope: Ordinance No. 186585 prohibited:^19^18
- Terminating tenancies based on nonpayment of rent
- Evicting for nonpayment
- Charging late fees
- “No-fault” evictions^21
Eligibility: Initially broad; tenant merely needed to “declare” inability to pay due to COVID-19 with no verification required^18
Compensation Provided:^2
Emergency Rental Assistance Subsidy Program (ERASP):
- Maximum: $2,000 per household (two months × $1,000)^8
- Applied only to low-income qualifying tenants^8
- Application window: One week only (July 13-17, 2020)^8
- Lottery system: Only 50,000 randomly selected applicants received assistance^8
Problem: Average rent in Los Angeles in 2020: approximately $2,524/month. Thus, the $2,000 maximum didn’t even cover one month of average rent—much less years of unpaid rent.^2
By August 2021, just 17 months into the moratorium, landlords alleged over $20 million in unpaid back rent.^21
Court Ruling:
The Ninth Circuit held this moratorium did NOT constitute a physical taking, relying on Yee v. City of Escondido and the “voluntary invitation” doctrine. The case is pending cert petition to the U.S. Supreme Court.^21
Takings Claim Strength: Extremely Strong (despite adverse Ninth Circuit ruling)
Strengthening Factors:
- Nearly 4-year duration = one of the longest in the nation^22^21^8
- Grossly inadequate compensation ($2,000 cap vs. years of unpaid rent)^2
- Extreme disparity compared to Oregon’s 100% compensation^2
- Massive documented losses ($20+ million for petitioners alone)^18
- Broad prohibition including “no-fault” evictions^18
- No verification of tenant hardship^19
Tier 4: States With Short Duration or Narrow Scope (Weaker Claims)
States With Brief Moratoria (March-July 2020)
Many states imposed moratoria lasting only 3-5 months in spring/summer 2020, ending before or shortly after the federal CARES Act moratorium expired.^4^5
Examples:
- Missouri: No statewide moratorium at all^5
- Texas: Brief moratorium, ended summer 2020^6
- Florida: Limited moratorium, ended summer 2020^23
Takings Claim Strength: Moderate to Weak
Weakening Factors:
- Short duration (3-5 months) = limited lost rent
- Ended relatively quickly as economy began reopening^4^5
- Under Cedar Point, duration affects compensation, not liability—but shorter duration means smaller damages, making litigation less economically viable
Comparative Analysis: What the Variations Reveal
| Jurisdiction | Duration | Compensation | Claim Strength | Court Outcome |
|---|---|---|---|---|
| Oregon | 15 months | 100% of lost rent | Weak (constitutional) | N/A—compensated |
| Minnesota | 15 months | Zero | Very Strong | Eighth Circuit: Taking |
| Washington | 15 months | Minimal (to tenants) | Strong | WA Supreme Ct: No taking |
| Los Angeles | Nearly 4 years | $2,000 max | Extremely Strong | Ninth Circuit: No taking |
| CDC (federal) | 13 months | Zero | Very Strong | Federal Circuit: Taking |
| Texas, Florida | 3-5 months | Minimal/Zero | Moderate | Limited litigation |
The Key Distinguishing Factor: Compensation
The single most important factor determining constitutional compliance is whether landlords received just compensation.^2
Oregon paid landlords 100% → Constitutional^8
Los Angeles paid $2,000 max → Unconstitutional taking^21^8
Minnesota paid zero → Unconstitutional taking^9
Washington paid zero (directly) → Unconstitutional taking^1
As amicus briefs emphasize:
“Whereas Oregon undertook extensive efforts to satisfy its constitutional duty to provide just compensation to landlords who suffered takings, the City [Los Angeles] created a fig leaf of a program that provided little assistance to the landlords it compelled to carry the public burden.”^2
Conclusion: A Patchwork That Reveals Constitutional Duty
State-by-state variations in eviction moratoria reveal a fundamental truth: governments CAN protect tenants while compensating landlords. Oregon proved it was feasible. Most jurisdictions simply chose not to do so.^8
The strongest takings claims involve:
- Long duration (Los Angeles: 4 years; Minnesota/Washington: 15 months)
- Zero or inadequate compensation (Los Angeles: $2,000 max; Minnesota/Washington: zero)
- Broad prohibition with no verification
- Massive documented losses
The weakest claims involve:
- Short duration (3-5 months)
- Full compensation (Oregon: 100%)
- Narrow scope with exceptions
- Rigorous eligibility screening
As the Supreme Court considers whether to grant certiorari in GHP Management (Los Angeles) and Gonzales v. Inslee (Washington), these variations will matter. Courts examining these claims should recognize that Oregon demonstrates the constitutional path forward: compensate landlords for property taken, or face takings liability under the Fifth Amendment.
This article is for informational purposes only and does not constitute legal advice. Property owners with questions about takings claims should consult qualified legal counsel.
