A Primer on Rental Inspections

Under the Constitution, before police can get a warrant to search someone’s home, they need probable cause of unlawful activity. But due to the U.S. Supreme Court’s abdication of its duty to enforce this command, cities like Red Wing, Minn., have passed rental inspection ordinances that allow government officials to barge in on someone’s home without probable cause of a crime or code violation. Thanks to this rental inspection loophole, criminals actually have more constitutional rights than law-abiding renters.

In order to rent out property in Red Wing, the property needs to be licensed. But a license requires an on-site inspection. If the proprietor or tenant refuses, the city can obtain an “administrative warrant” from a judge. So the notion that these inspections can be considered “consensual” is an illusion.

Represented by the Institute for Justice, nine landlords and two tenants have been fighting the city of Red Wing ever since the rental inspection ordinance passed in 2006. In August 2012, the Minnesota Supreme Court decided to hear the case.

Mandatory rental inspections violate the Fourth Amendment. A short intrusion can reveal very personal information about one’s religion, political beliefs, emotional or mental state, hobbies, sexual orientation, and/or gender identity. Needless to say, people shouldn’t lose their privacy rights just because they’re renting a property. To make matters worse, in Red Wing, rental inspection reports are “public data.”

In addition, rental inspections can further bypass the Constitution when it comes to searching for criminal evidence. Red Wing’s Rental Dwelling Licensing Code (RDLC) states:

“[t]he City will not share information regarding the condition of the unit or its occupants obtained through inspections conducted pursuant to this Section with any current member of the Red Wing Police Department or any law-enforcement agency of another jurisdiction, or enable their discovery by such person or agency ….” RDLC § 4.31, subd. 1(3)(q) (emphasis added).

But this restriction has exemptions. Rental inspectors are allowed to report information from an inspection about meth labs (either active or inactive), and evidence of mistreatment of children, vulnerable adults, and animals.

There are two major problems with this. First, the rental inspectors would not originally have had probable cause to search and enter the property for those crimes. Second, the exemptions are rather arbitrary. Why can rental inspectors disclose evidence of wannabe Walter Whites but not terrorists or thieves?

“A program in search of a problem”
Cities that have passed rental registration and inspection ordinances usually claim they’re necessary to crack down on code violations and punish slumlords. But violating the Fourth Amendment is an excessive response.

Take Red Wing. From December 2005 to May 2009, Red Wing held 800 inspections. Inspectors found only seven serious code violations that were where tenants actually lived. Not a single property was ordered vacated. In the words of one architecture building code expert, rental inspections are “a program in search of a problem.”

Rental inspections are even less justified in Richardson, Tex. The town’s city council passed a rental inspection ordinance in November 2011 that requires an inspection to be done within 30 days of a new tenant moving in. According to the Dallas Morning News, “In 2012, the city inspected 644 properties, and only one failed.” In other words, that’s a pass rate of 99.8%. Clearly, rental inspections are completely unnecessary in Richardson.

Like in Red Wing, Richardson landlords and tenants are joining together to reform or repeal the rental ordinance. In the words of one renter, “The heavy-handedness of a local government having this kind of power and response is unconscionable.”

Unsurprisingly, other cities and jurisdictions strain to justify their rental inspections. Sacramento County, Calif. defends the ordinance by noting that “the foreclosure crisis caused more properties to become vacant and vandalized, adding to neighborhood blight.” But as the Reason Foundation, Cato Institute, and others write in their amicus brief for IJ’s Red Wing case:

“One wonders why a foreclosure crisis associated with unaffordable home mortgages would drive the need for a rental inspection program; if anything, home foreclosures should enhance the market for, and sustainability of, rental properties.” (12)

There can also be a financial interest behind rental inspections. Rochester, Mich. passed a rental inspection ordinance as a way to “protect property values” after the housing market crash of 2008. Meanwhile, the town of Sharon, Penn. recently tripled rental inspection fees, jacking fees up from $15 to $50. Back in 2010, these fees were just $3 per dwelling, with the inspection done every two years. This fee increase is estimated to generate an extra $12,000 for this small town.

But there are other alternatives to mandatory rental inspections. Tenants can ask for inspection if they’re concerned about a property. In addition, inspections could avoid infringing renters’ privacy by conducting them only when a property is vacant. Cities could also incentivize landlords and landladies by offering seal of approvals or quality standards. These could then be used in marketing to promote better properties. These options would both protect the health and safety of renters, without sacrificing their civil liberties.

Indeed, more cities and jurisdictions are eliminating warrantless rental inspections. The Board of Supervisors in Chesterfield County, Va. voted unanimously to scrap its rental inspection ordinance in October 2009, after pressure from the ACLU.

Brett White, a landlord and Air Forces spec-ops veteran in Elizabethville, Penn., won in federal court in August 2012 after he sued the borough for its rental inspection ordinance. The court dismissed $450 in fines and nine citations Brett received for refusing to comply with the ordinance.
Garland, Tex. mandated rental inspections in order to be licensed. Anyone who rented property without a license or refused rental inspections would face up to $2000 in fines, per day.

But in 2008, a U.S. Court of Appeals struck down part of Garland’s rental inspection ordinance as unconstitutional:

“The court fully understands that the City has a valid and important governmental interest in protecting the public, however, the court sees no reason why this should be done at the expense of infringing on rights guaranteed by the Fourth Amendment to the United States Constitution.”

In response, Garland amended its ordinance. Renters and landlords in Richardson are hoping their city will follow suit.

In addition, the Institute for Justice has already won two cases against unconstitutional rental inspections. IJ successfully defended property and privacy rights of tenants in Park Forest, Ill., forcing the village to drop its rental inspection program in the late 1990s. After IJ sued the City of Yuma, AZ for its suspicionless rental inspections, city officials amended the ordinance in 2003 so that inspectors need to have a warrant before snooping around on someone’s property. Let’s hope Red Wing, too, can apply the Constitution to renters.

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