Blog Post | 114 KY. L. J. ONLINE | January 23, 2026
No Rent, No Exit: The Sixth Circuit’s Defense of Kentucky Property Rights Against “Indefinite Leases”
By: Logan Hopson, Staff Editor, Vol. 114
Every first-year property student is introduced to the familiar “bundle of sticks” metaphor,[1] in which the right to exclude is often described as the most essential stick of all.[2] During the COVID-19 pandemic, however, federal and state eviction moratoria reached directly into that bundle and snapped the right to exclude in half.[3] For Kentucky property owners, the most significant protection against this overreach came from the Sixth Circuit Court of Appeals, which played a leading role in dismantling the Center of Disease Control’s (CDC) claimed eviction authority.[4] By forbidding lease termination and non-renewal, these moratoria functionally transformed private rental agreements into “indefinite lease[s],” terminable only at the tenant’s option,[5] an outcome that violated the fundamental right to exclude and amounted to an unconstitutional per se physical taking.
The legal battle for the Sixth Circuit began in Tiger Lily, LLC v. HUD, a case challenging the CDC’s reliance on Section 361 of the Public Health Service Act to justify a nationwide eviction moratorium.[6] The CDC argued that the statute’s authorization of “other measures” for disease control gave it Congressional authority to regulate housing.[7] The Sixth Circuit disagreed, adopting the U.S. District Court for the Western District of Tennessee’s characterization of the moratorium as a “greased pig” that had been repeatedly passed between executive orders and legislative funding without ever being properly enacted into law.[8]
The court explained that the statute’s reference to “other measures” functioned as a “catchall provision at the end of a list of specific items.”[9] The court reasoned that any such “other measures” must resemble the actions Congress expressly listed, such as sanitation, disinfection, and disposal of contaminated materials, which permit limited government intrusion onto private property for disease control.[10] The Sixth Circuit held that government intrusion to sanitize property is substantially different from a moratorium on evictions, which directly targets the property owner’s possessory interest.[11] This ruling provided critical clarity for Kentucky owners, establishing that administrative agencies cannot “insert [themselves] into the landlord-tenant relationship” without unmistakably clear language from Congress.[12]
Although the federal eviction moratorium eventually fell on statutory grounds in Alabama Association of Realtors v. HHS,[13] the constitutional consequences remain unresolved due to a deepening circuit split under the Takings Clause. The Eighth Circuit, in Heights Apartments, LLC v. Walz, adopted the view that moratoria forbidding lease non-renewal “turned every lease . . . into an indefinite lease.”[14] Relying on the Supreme Court’s decision in Cedar Point Nursery v. Hassid, the court concluded that government-authorized physical invasions, even temporary ones, constitute per se physical takings.[15]
The Ninth Circuit has taken a more deferential approach, reasoning that no physical taking occurs because landlords “voluntarily opened their property” to tenants in the first place.[16] That disagreement has drawn scrutiny from the Supreme Court itself, with Justice Thomas noting the Court’s “obligation to fix” the resulting confusion surrounding the right to exclude.[17] For Kentucky landlords, the Sixth Circuit’s statutory skepticism in Tiger Lily serves as an important foundation for future takings claims,[18] signaling a judicial reluctance to permit the physical appropriation of private property for the benefit of third parties.
These disputes are not merely academic. Approximately 46.8 percent of residential rental units nationwide are owned by so-called “mom and pop” landlords,[19] often retirees or individuals of modest means who rely on rental income to pay mortgages, taxes, and maintenance costs.[20] In Kentucky, where the landlord-tenant relationship is carefully regulated by statutes such as KRS 383.580,[21] the federal imposition of de facto “indefinite leases” forced private property owners to shoulder the financial burden of a public health crisis without just compensation.[22]
As the Supreme Court correctly recognized “our system does not permit agencies to act unlawfully even in pursuit of desirable ends.”[23] An eviction moratorium that strips landlords of the ability to regain possession is no longer a mere regulation, it is an appropriation.[24] Until the Supreme Court squarely resolves the constitutional status of “indefinite leases,” property owners remain in a state of limbo, holding a bundle of sticks that the government may snap at will.
[1] Andrea J. Boyack, Limiting the Collective Right to Exclude, 44 Fordham Urb. L.J., 456–57 (2017).
[2] Kaiser Aetna v. United States, 444 U.S. 164, 176 (1979) (noting that “the right to exclude others” is “one of the most essential sticks in the bundle of rights that are commonly characterized as property”).
[3] See Ala. Ass’n of Realtors v. Dep’t of Health & Hum. Servs., 594 U.S. 758, 765 (2021) (explaining that “preventing [landlords] from evicting tenants who breach their leases intrudes on one of the most fundamental elements of property ownership—the right to exclude”).
[4] Kevin M. McCarrell & Keith B. Poston, CDC Eviction Moratorium: If You Ain’t Payin’, You Ain’t Stayin’—Or Are You?, Am. Bankr. Inst. J., Sept. 2021, at 42.
[5] See Heights Apartments, LLC v. Walz, 30 F.4th 720, 733 (8th Cir. 2022).
[6] Public Health Service Act of 1944 § 361, 42 U.S.C § 264; Tiger Lily, LLC v. United States Dep't of Hous. & Urb. Dev., 992 F.3d 518, 520 (6th Cir. 2021). The plaintiffs, all owners or managers of residential rental properties, challenged the CDC’s nationwide residential eviction moratorium. Id.
[7] Id. at 522.
[8] McCarrell & Poston, supra note 4, at 42 (quoting Tiger Lily, LLC v. United States Dep't of Hous. & Urb. Dev., 525 F. Supp. 3d 850, 857 (W.D. Tenn. 2021), aff'd, 992 F.3d 518 (6th Cir. 2021)).
[9] Tiger Lily, LLC, 992 F.3d at 522–23.
[10] Connor S. Roberts, COVID Evictions: The Legality of National Eviction Moratoriums, Loyola J. Pub. Int. L., Fall 2021, at 17; See also Tiger Lily, LLC, 992 F.3d at 524.
[11] See Tiger Lily, LLC, 992 F.3d at 524.
[12] Id. at 523 (explaining that states have historically held authority to regulate the landlord-tenant relationship, and a statute will not be read to alter that balance absent clear congressional intent to do so).
[13] Ala. Ass’n of Realtors v. Dep’t of Health & Hum. Servs., 594 U.S. 758, 765–66 (2021) (holding that the Government’s “claim of expansive authority under § 361(a) is unprecedented” and that “[t]he moratorium has put . . . millions of landlords across the country[] at risk of irreparable harm by depriving them of rent payments with no guarantee of eventual recovery”).
[14] Heights Apartments, LLC v. Walz, 30 F.4th 720, 733 (8th Cir. 2022).
[15] Id.
[16] GHP Mgmt. Corp. v. City of Los Angeles, No. 23-55013, 2024 WL 2795190, at *1 (9th Cir. May 31, 2024), cert. denied. GHP Mgmt. Corp. v. City of Los Angeles, No.24–435, slip op. at 2 (U.S. June 30, 2025).
[17] GHP Mgmt. Corp. v. City of Los Angeles, No. 24–435, slip op. at 2 (U.S. June 30, 2025) (Thomas, J., dissenting from denial of certiorari).
[18] See Tiger Lily, LLC v. United States Dep't of Hous. & Urb. Dev., 992 F.3d 518, 523–24 (6th Cir. 2021) (explaining that the CDC exceeded the scope of its authority and the government’s limited power to restrict private property interests by imposing the eviction moratorium).
[19] Todd M. Richardson, Message From PD&R Senior Leadership, Pol’y Dev. & Rsch. Edge Mag. (June 11, 2018), https://www.huduser.gov/portal/pdredge/pdr-edge-frm-asst-sec-061118.html.
[20] See generally Deanna Pantin Parrish, Just Diversion: Designing Eviction Mediation to Address Incentives and Inequities, 68 Wash. Univ. J. L. & Pol’y 63, 77–78 (2022) (“More than 33% of individual landlords have a mortgage or similar debt, and 58% do not have access to a line of credit that would help address delinquent rental payments”).
[21] Ky. Rev. Stat. Ann. § 383.580 (West 2025) (governing the termination and nonrenewal of residential rental agreements in Kentucky).
[22] See generally Samuel J. Ciulla, Putting a Moratorium on Moratoria: Avoiding an Unlawful Regulatory Taking While Preserving Safe Rental Housing During a National Crisis, 52 Stetson L. rev. 507, 516–17 (2023) (discussing the circumstances under which a property owner may successfully bring a takings claim).
[23] Ala. Ass’n of Realtors v. Dep’t of Health & Hum. Servs., 594 U.S. 758, 766 (2021).
[24] See Ciulla, supra note 23, at 535.