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Notes -
Court opinion somewhat relevant to the culture war:
According to lawmakers: "New Jersey is consistently in the top three in the nation with the highest foreclosures. Our state also has the widest racial wealth gap in the country. Black and brown wealth is hemorrhaging through the loss of foreclosed property, and the people who live in the community often do not have deep enough pockets to even participate in the foreclosure process." "The current process favors companies that have the money to purchase property at sheriff sales and resell it for a profit." In response to these concerns, the state govt. enacts a law ensuring that, whenever a residential property is foreclosed on, a right of first refusal is granted to the owner, his next of kin, and his tenants (if the owner is an individual rather than a company), and a right of second refusal is granted to certain redevelopment-oriented nonprofits (regardless of the owner's identity). Normally, foreclosure results in an auction starting at an "upset price" (minimum/reserve price) set by the foreclosing lienholder (presumably the lender of the property's first mortgage). However, these two new rights of refusal allow the property to be purchased for the upset price without an auction. The lawmakers say: "This legislation will help to keep property ownership within the community." "This is what equity in systems looks like."
However, the new law causes problems because it often results in undervaluation of the property, so that junior lienholders don't get paid back. For example, in one of the cases consolidated here: A residential property with estimated fair market value of at least 680 k$ was foreclosed on. US Bank held a first mortgage for 281 k$, and PNC Bank held a second mortgage for an amount that I can't find in the court documents. US Bank set the upset price at 309 k$. PNC was prepared to bid the auction up to 401 k$, which presumably would suffice to pay off both mortgages. However, instead a nonprofit exercised its right of second refusal and bought the property at the upset price of 309 k$, paying off US Bank's mortgage but leaving PNC with substantially less than what it would have gotten at auction. In PNC's words: "The refusal to recognize other bids results in illegal lien-stripping and the illegal taking of substantial surplus that would have been realized, and the deprivation of PNC's property interest that would have attached to that surplus." (PNC also alleges that the nonprofit is a sham. It was created just a few days before the auction would have taken place, and is not registered as a nonprofit with the state govt. or with the federal IRS.)
The trial judge rules that the nonprofits' right of second refusal is an unconstitutional taking without just compensation, and the appeals panel affirms. The federal Supreme Court recently found that it is unconstitutional for the govt. to foreclose on a property for a 200-k$ tax delinquency, sell it at auction for 300 k$, and pocket the extra 100 k$. Likewise, if a property is encumbered with a 300-k$ mortgage, it is unconstitutional for the govt. to let a nonprofit buy it for 200 k$ and magically extinguish the extra 100 k$ of debt owed to a lender. (Nobody has invoked the owner's, next of kin's, and tenants' right of first refusal, so it technically is not at issue in this case. But if the right of first refusal is challenged in the future it presumably will be held unconstitutional under the same rationale.)
On the topic of 5th amendment violations
If this right of second refusal is an unconstitutional taking of the financial interests of the mortgage-holders, it seems pretty straightforward to me that rent control is an unconstitutional taking of the financial interests of property owners, and I have no idea how we've managed to get this far without a court ruling to that effect.
It seems to me that rent control is not as extreme because the landlord still gets to collect rent on his property and can apply to some pink board somewhere for rent increases. Of course I agree that rent control (and other price controls) are, generally speaking, bad public policy, but it's debatable whether they rise to the level of being a taking.
I think that the government is constantly interfering with property rights and that interference runs the spectrum from what is generally thought to be reasonable (e.g. you aren't allowed to build a factory in a residential neighborhood) all the way up to something that's clearly a taking (e.g. the government simply seizes your land). It's very difficult to draw the line, and that's what judges do -- exercise judgment.
And just what is a 'pink board' when it's at home?
Most of the search results were about insulation.
In my day, the word "pink" was slang for "somewhat communist." It meant someone who had communist leanings but who wasn't a full on Soviet.
So a board unlikely to be sympathetic to arguments of the form "$LANDLORD1 and $POTENTIAL-TENANT2 are richer than $CURRENT-TENANT3, therefore $LANDLORD1's desire for a fancy car to compensate for his anatomical shortcomings and $POTENTIAL-TENANT2's desire to move into the district that two decades ago he treated as more dangerous than Fallujah are more important than $CURRENT-TENANT3's desire to stay in the home where she has lived through the entire Elizabethan era while still being able to afford to taste something other than shame."
Agreed. A more interesting question is whether that board would be sympathetic to the landlord's argument where (1) the current tenant has been retired for many years; his children have moved out; and not only does he have a lot more space than he needs, he has a location which is much nearer to the financial district than he needs; (2) the potential tenant could make much better use of the apartment since he has a wife, small children, and a job nearby; and (3) the landlord is a real estate investment trust with many investors who are themselves retirees who are struggling to make ends meet.
That being said, I think your hypothetical exposes a basic question of economics: Should scarce and valuable resources be distributed (1) based on a committee's opinion about who is most deserving; or (2) based on peoples' willingness to pay some private owner for those resources. I think it's fair to identify the first approach with Communism and the second approach with Capitalism.
You can certainly argue things both ways (and it doesn't have to be all one or the other) but my observations of history strongly suggest to me that option (1) tends to be counterproductive -- to put it politely.
I think it's also worth keeping in mind that other than the landlord, the first potential tenant, and the second potential tenant, there is another party to your hypothetical: Another potential landlord. Because as a society we want and need capital to be invested in building new housing stock. If the rent control mechanism sides too strongly with incumbent tenants, it will chase away investors and ultimately harm the class of people which the system is, in theory, trying to help.
One last point:
This is a big part of my issue with Communism or Marxism or whatever you want to call it. In practice it is typically infused with a kind of mean-spiritedness to the point where it can be seen as a kind of hate ideology. If the goal is to punish and humiliate rich people, well, even if a case could can be made for Communism in the abstract, it's probably not worth pursuing.
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