Thursday, December 15, 2005

More Thoughts on Rental Unit Inspections

Shortly after Roch Smith, Jr. posted his criticism of our city inspectors' practice of entering rental properties without the tenants' written permission, a flurry of e-mails went out on the Greensboro Neighborhood Congress listserv.

One was from an anonymous e-mailer, who used Roch's piece to blast members of the city council. He (or she) didn't respond to my request to identify him- or herself, but I'm guessing the person has a connection to the Greensboro Landlords Association, which has been a vehement critic of the city's RUCO regulations.

Another was from a local lawyer (and RUCO supporter), who cautioned GNC members against drawing hasty conclusions about the (un-) constitutionality of the city's inspections policy, and advised consulting a lawyer. [Insert lawyer joke here.]

Not being a lawyer, I really don't know whether it's constitutional for inspectors to enter a rental property without the tenant's permission in order to look for housing code violations on the part of the landlord.

David Boyd asks why the city doesn't just wait until properties become vacant to do an inspection. I think the answer to that is, that many bad landlords would simply fly under the city's radar and never report an unoccupied unit for inspection. The city has no way to get that information, and the units would never be inspected.

I still believe that the RUCO ordinance has great potential for improving Greensboro's rental housing stock. I also believe that RUCO can (and should) promote the interests of tenants, especially those who are renting from irresponsible or shoddy landlords. If the burden of requesting inspections falls entirely on tenants, then they could face retribution or eviction by an angry landlord.

Although the constitutional issue is significant, so far the constitutional complaints have emanated from landlords and from Roch. Even the blogger whom Roch cites in his article because his apartment was inspected didn't see fit to mention the incident on his blog.

So I believe that most tenants think their interests are being protected by RUCO.

20 comments:

David Boyd said...

...many bad landlords would simply fly under the city's radar and never report an unoccupied unit for inspection. The city has no way to get that information, and the units would never be inspected.

How about this. Landlords are required to make available for inspectors current leases. Inspectors can then cross reference the date on the lease with the date of the CO. For each violation, fine the landlord $500 or $1000 or whatever.

The only way to circumvent this would be for the landlord to say that there has never been a new lease signed since the ordinance was passed. If suspicious, say an apartment building has had no turnover in five years, a little investigation solves the problem. For example, you interview a person whose name is on one of the leases to find out where they're living. If it's somewhere other than the apartment, you fine the landlord something like $10,000.

Problem solved. You don't violate anyone's rights by entering their home without permission, good landlords have no problem complying because they already keep good records and maintain their units and you nail bad landlords without getting the tenant involved.

Roch101 said...

DB's suggestion also has the benefit that apartments are more likely to be inspected more often than once every five years as the current ordinance allows.

Roch101 said...

The landlords are right to be against the RUCO ordinance as it is being implemented. They are being asked to be complicit in illegal behavior.

My article was documented with a Supreme Court Case and expert legal opinion. Did the anonymous lawyer who cautioned against "hasty conclusions" about the constitutionality of inspectors entering homes without tenant's permission offer any case law or legal arguments for why it's not illegal. Did he address the city ordinance that makes it illegal for inspectors to enter a home without permission? Any legal arguments for why it is okay for inspectors to ignore that ordinance or just a vague caution?

Other issues, such as how bad landlords might subvert the inspections process if inspectors cannot gain illegal entry or of the good intentions of RUCO are superfluous. Frankly, I find it deeply disturbing that some would attempt to use them as justification for violating the constitutional rights of segments of our population. Put unauthorized inspections off limits and I'm quite sure that the potential problems, such as intimidated tenants, can be addressed through other, legal means.

Attempts to defend the city's illegal practices are going to have some very bad unintended consequences if people aren't more thoughtful. If RUCO supporters dig in and insist that the only way to implement RUCO is to allow inspections without permission, they are going to find the whole thing sunk because the city won't be able to afford the legal liability of trying to maintain illegal practices. Truly, it is in the interest of RUCO supporters to reject implementation of the ordinance through illegal methods.

If you truly believe that most tenants will find this to be in their interest, the certainly, David, getting permission from the tenants will be no problem as most will grant it. Right?

I offer you a challenge. Unsafe housing does not just include rented homes. Owner-occupied homes can be just as unsafe. What is the rationale for excluding them a required certificate of occupancy? Suppose the city decides that all homes should be inspected for safety. Why not? After all, it is in the homeowner's best interest. Would you still have the same opinion about the city conducted inspections without permission? Would it be okay, David, for inspectors to enter your home without your permission?

People who own their homes and think that they are doing some kind of good for the lowly renter who cannot protect himself by advocating for a trespass of renters' constitutional rights are being awfully damn arrogant, in my opinion.

Roch101 said...

Oh, and just to be clear. Inspectors have been entering apartments not just without "written permission" as you wrote, but without any kind of permission.

David Wharton said...

DB, you offer some possible solutions (but aren't there also constitutional problems with requiring landlords to provide their financial records without cause?). But I think your solutions would be much harder to implement than you indicate.

Roch, I tried to be careful not to endorse any practices that are unconsitutional, nor even to endorse the practices that you say are being used. I still believe that RUCO can be enforced within constitutional limits. That said, here are some responses to your questions:

Owner-occupied homes can be just as unsafe. What is the rationale for excluding them a required certificate of occupancy?

I don't think they are excluded. As the ordinance was explained to me, owner-occupied homes must also be issued a Certificate of Occupancy (CO) when they change owners. The link on the city's website to the ordinance, however, is broken, so I can't verify it at the moment.

Suppose the city decides that all homes should be inspected for safety. Why not? After all, it is in the homeowner's best interest. Would you still have the same opinion about the city conducted inspections without permission? Would it be okay, David, for inspectors to enter your home without your permission?

The city can enter my home for an inspection now without my permission if it has reasonable cause to think my house is not up to code, and it will also do this if 5 people sign a petition asking it to. I don't think I'd enjoy the process very much, but I'm willing to put up with the practice as it is now done in order to have an enforceable housing standard in Greensboro.

A few weeks ago I asked the Inspections department to check out a rental propery near my house because it was being rented on a cash-only basis and had no running water or electricity. It was inspected and condemned.

Does that make me an arrogant SOB? Maybe.

But as I said, the outcry against RUCO does not seem to be coming from tenants. And BOTH you and I, Roch, claim to be writing on their behalf.

I guess that makes us both pretty damned arrogant, no?

David Boyd said...

...aren't there also constitutional problems with requiring landlords to provide their financial records...

They file taxes, no?

Let me ask this. What happens if during one of these inspections without the homeowner's permission a meth lab is discovered by an inspector and the police are called? What happens?

Roch101 said...

David, You are misinformed. There is no ordinance requiring that all homes in Greensboro be inspected on a regular basis (It's called the RENTAL unit ordiance, afterall.)

Some of your answers further bring into focus the illegality (and unfairness) of entering apartments without permission.

In your observation that the city can enter your owner-occupied home for an inspection if it has probable cause, the "it if has probable cause" is significant. That's key. So, I'll be more precise in my question. Would you be okay with the city entering your home without your permission and without probable cause to conduct an inspection, as they have done with rented homes?

As of May this year, I no longer rent. But my interest in the matter is years old and started when I was a renter. I would still be on the side of the Consitution even if I had never been a renter. (I thought Conservatives were great defenders of the constitution. It's funny to hear a self-professed conservative defnd its violation for a government program.)

As my article noted, four of the people I spoke to about their apartments being inspected without their permission where unaware that inspectors have even entered their homes. If you are thinking that tenants don't care, you may be right. Maybe most of them don't. But the fact is that at this point, most are uninformed. Once word gets out, how many who don't like it do you think it will take to bog the whole thing down in court? It really is a tactical mistake for supporters of RUCO to circle the wagons in defense of illegal implementation of it. It would make far more sense to protect it from legal challenges by demanding that it be legally implemented and mvoing forward to propose other means for addressing the remaining challenges.

David Wharton said...

DB, I just don't know the legalities of either situation.

David Wharton said...

Roch, let me repeat again: I do not endorse enforcement of RUCO in any way that is unconstitutional. I am not circling any wagons.

I think RUCO should be enforced through constitutional methods.

Roch101 said...

Okay, David. But since you said you "really don't know whether it's constitutional for inspectors to enter a rental property without the tenant's permission..." It's still not clear to me that you fully understand what your promise means.

Anonymous said...

The lawyerly advice received from a member of the gnc and an operative in the westerwood neighborhood ass. in an e-mail to members of the gnc was signed.
Copy here:

"I respectfully caution all in accepting non-lawyer bloggers' interpretations of what the law is, what is constitutional, etc., as there seem to be a number of questionable conclusions/statements floating around about legal issues.  If you have the need for reliable legal opinions or advice, you should contact an attorney licensed to practice law by the State of North Carolina.
 
-- Marsh Prause

David Boyd said...

Well, guess that settles it. From now on, no one talk about the Constitution without a license.

Ray Burton said...

Not a criticism, but a comment: I have a problem from the tenant's point of view about requiring landlords to submit copies of lease to the city. Doesn't that invade the privacy of the tenants? What business is it of the cities to know how long I have on my lease?
Another item, that no one seems to be acknowledging, is that most leases include a clause allowing the landlord to enter the premises under certain conditions. While I do not know the terms of any of the leases in question, I wouls posit that neither to most of us who are reading/commenting on the recent revelations (again, I am not saying such provision would allow the inspections, just that they might, depending on their language).

Just a couple of thoughts:

Ray Burton said...

And another thought: Perhaps the city ordinance should say that any residential lease for property in the city limits of greensboro MUST include a clause that requires a tenant to allow city inspectors to inspect the property upon a certain amount of notice given by the inspector. The ordinance could also require Landlords to notify prospeective tenants of this ordinance (proof could be provided by requiring tenants to initial that provision on the lease they sign).
This would do two things: It would give the tenant fair warning before they sign a lease, and give them notice before an inspection. It would also remove the Landlords from the process of obtaining permission for each unit on a case-by-case basis.
Any thoughts?

Tom Phillips said...

You guys are making my head hurt. The RUCO Board as well as the city council made it clear that inspections were not to be made without the written permission of the tenant. The procedures were in place, but they were not being followed. I believe in most cases the city inspector was accompanied by the landlord but that still did not make it right. Procedures have been changed so that copies of the permission slips are kept by the city. Roch, no one to my knowledge has been trying to defend what happened.

Roch101 said...

Tom, that's good news. The matter remains of what the form says. As written, it is deficient for the reasons cited in my article, but I'm sure that can be properly addressed.

Marsh, regarding the email that you received, that said: "I respectfully caution all in accepting non-lawyer bloggers' interpretations of what the law is..." Yes, I offered my opinions in my article, but I also cited legal experts and case law. I'd caution all in dismissing sourced and substantiated news and expert opinion just because it appears on a blog.

David Boyd said...

I have a problem from the tenant's point of view about requiring landlords to submit copies of lease to the city. Doesn't that invade the privacy of the tenants? What business is it of the cities to know how long I have on my lease?

Another item, that no one seems to be acknowledging, is that most leases include a clause allowing the landlord to enter the premises under certain conditions.


RB, I think you handle the first concern by just having the landlord provide the name and date the lease was signed to the city. There's no need for the city to know the rate or length of the lease.

As far as landlords entering the premises, I think this is true. The difference is that in this case the landlord is being compelled by the city.

David Boyd said...

Here's a question I have. The original ordinance requires that the city get written permission from the tenant before entering. What happens if this permission is not given? What happens if permission is declined by an entire building?

David Wharton said...

I would assume that the building wouldn't get inspected on that pass.

Tom Phillips said...

While the City could get a warrant if there was probable cause, the unit would not get a RUCO inspection until the tenant vacated the property. The landlord could not rent the unit to a new tenant until a RUCO inspection was made and the certificate was issued.