Civil Liberties

Contempt for Renters Leads to Second-Class Search and Seizure Protections

Signing a lease instead of a deed shouldn’t erase your right to be free of government home invasions.

|

Add Pottstown, Pennsylvania, to the list of jurisdictions getting slapped over officials' efforts to bypass search and seizure protections by mandating regular inspections of rental units. Last week, a Pennsylvania court vacated earlier rulings in favor of local officials and said trial should continue on plaintiffs' claims that their rights are violated by invasions of their homes without cause or consent.

That's potentially good news for the people of Pottstown, but also for tenants and landlords everywhere. Recent decades have seen creeping efforts by local governments to treat those who rent homes by choice or necessity as second-class citizens denied the full protections for their privacy embodied in the Fourth Amendment and similar state provisions.

What's at stake is ably summarized in the Pennsylvania ruling. "In June 2015, the Borough enacted a number of housing ordinance amendments. At issue here, the amendment included provisions requiring each owner of rental property to permit inspections of all rental units every two years," the three-judge panel of the Commonwealth Court of Pennsylvania noted in the January 6 opinion. "If voluntary access for an inspection is denied, the ordinance allows the Borough to apply for an administrative warrant… The record does not disclose what criteria, if any, the Borough must satisfy in order to obtain such a warrant."

So far as anybody can tell, the criteria boils down to "let's print another sheet of paper with the word 'warrant' on it." That loose standard—if it can even be called a standard—raises real concerns when it acts as a skeleton key for government officials to enter people's homes and look through their living spaces and private possessions.

"Tenants also point out that each inspector is instructed to share with police any observation of an item in a rental unit that the inspector, in his total discretion, considers an indicator of criminal activity…thus allowing police to obtain information about the contents of a dwelling without the need to obtain a search warrant based on individualized probable cause," the court adds.

Pottsville's rental inspections not only evade the protections intended by the Fourth Amendment and the arguable even more protective Pennsylvania constitution, but may even do so deliberately. How convenient it is for law enforcement to have colleagues acting as their eyes and ears, but subject to fewer restrictions.

Unsurprisingly, Pottstown tenants Dorothy and Omar Rivera, and their landlord Steve Camburn, objected to the cause-less search and filed suit in 2017 to prevent the invasion of their home. They were joined by Kathleen and Rosemarie O'Connor, who live next door to their father, Thomas O'Connor, in a second family home that the city treats as a rental unit. The plaintiffs are represented by a team led by the Institute for Justice.

Fighting coerced, cause-less inspection of rental units isn't new for the Institute for Justice. It challenged Yuma, Arizona over a similar law in 2002, and forced the city to make search warrants conditional on probable cause. The group is currently fighting similar inspections in Zion, Illinois, and Seattle, Washington, as well.

"Seattle's law is being challenged as more and more cities adopt similar, proactive programs to help improve rental inspections," Curbed reported of the challenge to that city's cause-less searches. "Detroit and Syracuse, New York, have recently passed similar ordinances."

So have other local governments.

"If there is one thing every American understands, it's that government officials don't have the right to enter our homes unless they have a warrant or there's a true emergency," ACLU of Virginia Executive Director Claire Guthrie Gastañaga objected after Hampton, Virginia, adopted a similar rental inspection requirement in 2013. The ACLU earlier threatened legal action against Virginia officials in Chesterfield County, deterring them from adopting similar inspections.

Most of these rental inspection laws couch their rationales in public health language. They're full of concern about code compliance and maintaining safe and hygienic conditions for tenants. Sure, tenants could take concerns up with their own landlords, or file complaints on their own initiative, but much of the push behind rental inspections drips with contempt for the agency of mere renters.

"By relieving tenants of the burden of having to force reticent landlords to make needed repairs, systematic inspections can help ensure that a locality's rental housing stock is maintained and that residents live in healthy conditions," ChangeLab Solutions, a public health nonprofit, claims in A Guide to Proactive Rental Inspection Programs published in 2014.

"Often, the most vulnerable tenants don't complain," the report continues. "Some tenants are unaware that they have a right to safe and habitable housing. They may not know about existing tenant protections or code enforcement programs. Or they may have language barriers or disabilities that make it difficult to navigate the code enforcement system. Many tenants may be afraid to complain about their housing for fear of increased rent or landlord retaliation (such as eviction). Residents may be undocumented or have limited income that hampers their ability to move."

The ChangeLab Solutions report notes that some tenants may have privacy concerns and wish to deny entry to inspectors. It recommends administrative inspection warrants as a means of breaching such barriers.

As befits laws that were born in contempt for those who sign leases instead of deeds, penalties for noncompliance are often levied on landlords, leaving them to find a way to coerce resistant tenants into admitting inspectors, or else join those tenants in fighting intrusive officials.

Many landlords do give in and act as proxies to twist tenants' arms into allowing government officials to search their homes without probable cause. But lawsuits across the country, including the one proceeding in Pottstown, show that other owners prefer to join with their tenants to preserve search and seizure protections against intrusive officials who treat privacy concerns with disdain.

Rental inspections are supposed to be about public health. But nothing is healthier than a public dedicated to preserving its own privacy and liberty against snoopy officials.

Advertisement

NEXT: Uber's Lawsuit Against California's Anti-Freelancer Law Is Missing a Key Constitutional Element

Editor's Note: We invite comments and request that they be civil and on-topic. We do not moderate or assume any responsibility for comments, which are owned by the readers who post them. Comments do not represent the views of Reason.com or Reason Foundation. We reserve the right to delete any comment for any reason at any time. Report abuses.

  1. Not Tuccille too! FFS does Reason have some sort of narrative software that takes libertarian articles and ideas and rewrites them in the least libertarian way possible?

    Signing a rental agreement can and should absolutely erase your right to be free of home invasions BECAUSE IT’S NOT YOUR FUCKING HOME!

    Esoteric rental and privacy rights over contracted property rights? Fuck off Reason!

    1. Ummmm. I’m pretty sure that a contract provision that is in violation of the law is not enforceable. Given that they want information found in these inspections to be provided to police, I’d say the inspectors are arguably acting on behalf of the government. Which means there are Fourth Amendment concerns with these requirements. Just my $.02.

    2. What contract? Even if they were in public housing and had a contract with the government, the 4th still applies.

    3. Property owners should and do have the right to inspect their properties. It’s warrantless government agents that are being objected to.

    4. So the 4A only applies to property owners?

      1. Are you saying a landlord should have zero access to the property once it’s rented?

        1. Lord of the shits, you did not read the previous two comments. You seem to be suffering from finger diarrhoeia.

    5. “BECAUSE IT’S NOT YOUR FUCKING HOME!”

      It absolutely is your home, dingus. Every month you pay to make this place your home, as stipulated in your lease.

    6. What contracted property rights? This is about mandatory inspections by the state, not landlords putting inspections in the lease agreement.
      And an “administrative warrant” sounds like bullshit. There is no crime being investigated and no specifics that they are looking for.

    7. While it is not the renter’s house, it is his HOME. A hotel room, rented by the day, and even a campground, in every jurisdiction of which I am aware, are both considered a temporary dwelling place, or, in other words, a “home.”

    8. I rent. My landlord is of course free to enter his property at any time, and my unit included, with the proper notice (24 hours minimum) situation (emergency) and / or my consent, as stipulated in the lease we both agreed to and signed.

      The fact that the local authorities demand that I allow entry to their agents on an annual basis for an occupancy inspection is demeaning. My next door neighbors, who own their homes, were only required to have an occupancy inspection when they took up residence at their homes.

      1. and I’d hold strongly that your neighbours’ requreiment to have an “occupancy inspection” prior to taking up residency is also a step too far for the gummit wants their inspection fees, and the salaries of the dweebs that go out and play God deciding who can live where and how.

        Is the putative tenant too stupid/ignorant/desparate/stoned/ helpess to walk through the placel LOOK at it, decide whether they want to live there all by their little old adult selves? It ain’t a day care centre, for Pete’s sake.

    9. Signing a rental agreement can and should absolutely erase your right to be free of home invasions BECAUSE IT’S NOT YOUR FUCKING HOME!

      Wait a second! I signed a rental agreement to let some guy live in my house as long as he paid me to let him live there and suddenly now it’s not my house? Then why the hell is he paying rent to me, why am I paying property taxes on the house if it’s not mine, and who’s house is it?

      I’m guessing you didn’t actually understand the argument. If I’m renting a home from you and it’s in the contract that you can/cannot enter the home for regular inspections of your property, that’s between you and me. When the city declares *they* can enter your property simply because you are renting it to me, even when both you and I object to their entering the property, that’s a real violation of property rights. How the hell you and I signing a rental agreement somehow obviates both of our rights to be free from Fourth Amendment protections is so far beyond me I can only conclude you’re mistakenly seeing this as merely a tenant’s rights thing and not a landlord’s rights thing.

      1. That’s pretty concise. Agreed.

    10. Since when is the Fourth Amendment esoteric?

      1. 2008

        1. 2008? This nonsense dates back at least to 1969. Look up Stanley v. Georgia. While it was a clear when for pornography and the first amendment and largely established that the 4th was irrelevant. The Georgia Supreme Court and 6 of 9 SCOTUS judges agree any warrant is really just a general warrant and that’s perfectly constitutional.

          1. Eh. win not when.

    11. So if the Government Almighty “property inspectors” come to inspect my rental property, and they catch me in the act, red-handed, blowing (without permission) on a cheap plastic flute (say, I lost my Doctor-signed prescription for my “lung flute”), will they, or will they not, bust me? And how much jail time will I then have to serve?

      THESE are the IMPORTANT questions, dammit!!!

      Meanwhile…
      To find precise details on what NOT to do, to avoid the flute police, please see http://www.churchofsqrls.com/DONT_DO_THIS/ … This has been a pubic service, courtesy of the Church of SQRLS!

    12. Wut. Landlords can’t just enter a dwelling once it is rented, so why should the police? It sounds like you wanna be some kind of propertarian.

      1. Landlords do have access to their property once rented. The terms of which are typically stipulated in the lease agreement.

        1. Sure – but they can’t just enter. They can only enter when those conditions are satisfied.

          I would be pissed if, when renting, to find my landlord (or agents) had entered my apartment while I was gone without having given notice that they were coming.

          1. Short, obviously, of exigent circumstances – which would be one of the conditions of entry in the rental contract.

        2. “The terms of which are typically stipulated in the lease agreement.”

          And/or landlord-tenant law.

    13. Apparently I should clarify. “Signing a lease instead of a deed shouldn’t erase your right to be free of government home invasions.” reads like “Married women should have the right not to have their husband’s balls fondled.”

      Especially from an auspiciously libertarian/pragmatic/objectivist magazine that should be telling tenants that they should be telling landlords and property owners that they can tell police and inspectors to fuck off even in the public/common areas *to which they are already legally entitled*.

      The law is being put in place nominally in defense of tenants, portraying them as victims, especially when they aren’t the primary victims, isn’t doing anyone any favors.

      1. “Married women should have the right not to have their husband’s balls fondled.”

        “Government, free to tell horses where to go and what to do once they get there, stepping on toes when insisting on inspecting carts.”

      2. It only reads like that if you somehow think the government has a natural right to barge in to renters’ home any time they like, because the 4th amendment only applies to property owners.

        I don’t see government in your second sentence. Perhaps you meant “fondled by government police.”

        1. I don’t see government in your second sentence. Perhaps you meant “fondled by government police.”

          So what you’re saying is, if it’s not the government doing the fondling, women actually have no right not to have their husband’s balls fondled. Almost like they don’t have any actual property claims to their husbands testicles except those granted by the rightful and *actual* owner of said testicles. Huh.

          1. Because, keep in mind, we aren’t talking about a Federal Law here. It’s quite reasonable/conceivable that in some places and/or in some of these cases, the layer cake shakes out such that the city or village or ward or county or precinct can, in fact, tell landlords what they will and will not put into a rental agreement inspection-wise.

            Wouldn’t want to grant all property owners greater ownership over their property, just the renters in this narrow case.

    14. Did you even bother to read the article?

    15. the legal definitioni of the word “home” is far broader than you think. “Home is where you hang your hat”. Whether that wall on which you hang that hat is owned outright by YOU, owned by you but REALLY owned by the mortgage company, or owned by Charlie and rented to you, it is still YOUR HOME.

      By other laws, the tent in which you are camping in a park or forest is your temporary HOME. Laws relating to the repulsion of invasions by force treat your owned home, rented home, leased home, motor home, travel trailer, cmper, occupied vehicle, boat, tent in the woods as all being equal. If your right to self defense is maintained no matter the ownership of the space you occupy, and your right to speak your mind in conversation within that space, your right to invite whom you will, or deny them access, your right to many other things, including to “be security in one’s person, home, papers, and effects”, as one of those Ten Commandments against Government reads.

      You are looking in the wrong place.. the problem is within your cranium.

      1. By other laws,

        Not Federal. And the case law doesn’t appear to agree with you. It’s shaky and unclear at best.

        Laws relating to the repulsion of invasions by force treat your owned home, rented home, leased home, motor home, travel trailer, cmper, occupied vehicle, boat, tent in the woods as all being equal.

        Not Federally and/or Constitutionally. In fact, only ND, MI, and OH officially recognize ‘stand your ground’ from your vehicle legislatively. VT is duty to retreat everywhere.

        You are looking in the wrong place.. the problem is within your cranium.

        You’re not even remotely looking in the right place. The rentees don’t own the property any more than the engaged gay couple owns the baker’s wedding cake. Even if the gay couple intends to return the cake at the end of the service per the rental agreement, the government can’t compel the baker to sell or rent against their will. Which is, in practice, absolute horseshit because the government abso-fucking-lutely can compel landlords to rent to gay couples.

        But please, let’s continue to pretend that the poor trampled customers are the primary victims here.

    16. The state is trying to force landlords and tenants to include riders in the contract.

      That’s not libertarian.

      The state is trying to force landlords to give up their 4th amendment rights by demanding they allow state inspections.

      That’s not libertarian.

      The state then wants those inspectors to snitch to the police.

      That’s not libertarian.

      Nothing about this is preventing landlords from accessing their properties.

      1. Yeah, the state is seeking to impose itself on the basis that you have chosen to open your property up to a certain form of commerce.

        Ostensibly to protect renters from the potential dangers of substandard or non-code housing, but also – as noted in the verbiage – to address anything else that might be observed.

        The word draconian comes to mind…

        1. Yeah, the state is seeking to impose itself on the basis that you have chosen to open your property up to a certain form of commerce.

          And presents it in a manner such that the customers’ rather than the merchants’ rights are being violated. Which is backwards to begin with but also makes it easier to ignore the fact that the specific merchants in this case already take it up the ass sideways from the government when determining who they can and can’t rent to, what they can and can’t charge, what sort of services and accessibility the will and won’t provide.

    17. Signing a rental agreement can and should absolutely erase your right to be free of home invasions BECAUSE IT’S NOT YOUR FUCKING HOME!

      By all means: the landlord should be able to write inspection requirements into the lease.

      I think the complaint here is that local government intrudes into the landlord/renter relationship by mandating inspections specifically by government officials.

      1. By all means: the landlord should be able to write inspection requirements into the lease.

        Technically, this is already done with fire inspections, elevator/mechanical inspections, etc.

        I think the complaint here is that local government intrudes into the landlord/renter relationship by mandating inspections specifically by government officials.

        I understand and agree but Contempt for Renters Leads to Second-Class Search and Seizure Protections –
        Signing a lease instead of a deed shouldn’t erase your right to be free of government home invasions.
        makes no mention of the people who actually own the property and who’s rights are being directly violated.

  2. You couldn’t ask for a better example of government attracting the power hungry control freaks, and that government always expands wherever possible.

  3. Who the fuck is Grandpa Fester in the picture???!!! Is that even a guy?

    1. A weird little picture. Why is his gun out yet he has such a relaxed stance? Is that a steep set of stairs he’s standing next to, or an open-air elevator shaft?

      Inquiring minds want to know!

      1. I know, I know…the picture is so incongruous.

    2. I don’t know but I feel like he needs to be cast as Barney Fife in a remake of the Andy Griffith Show

    3. looks like a screenshot of Barney Fife from a gritty urban reboot of The Andy Griffith Show

    4. Who the fuck is Grandpa Fester in the picture???!!! Is that even a guy?

      RBG defending the one bleak, steep, and narrow stairway to the final glass ceiling.

  4. Public Health Nazis make old-fashioned blitzkrieg and holocaust Nazis look good in comparison.

    1. That’s the same tactic devious power-grabbing DEMOCRATS are using to circumvent the 2nd Amendment. They have commissioned the CDC to study “gun violence” as a public health crisis so they can circumvent and undermine our 2nd Amendment rights.

  5. This article could not be more timely for me. As we speak, there is a government official inspecting my apartment. There is legitimate concerns when talking about multi-family housing, and those should be addressed, but where do we draw the line? It seems, recently, to be a monthly thing to “need” to enter my apartment. One day, they inspect the sprinklers. Next day, check the smoke detectors, and then yet another day, to check the fire extinguisher. And as no one is present in the apartment (always during normal working hours), we have no idea if they are making illegal searches. To this point I have not, but I have been contemplating installing “nanny cams” and informing maintenance persons that they are being recorded. That way, if something did happen, I would have evidence of malfeasance.

    1. You would have evidence of qualified immunity – – – – – – –

    2. My upstairs neighbor installed an internet-connected camera that covers both entrances to his apartment, so that he gets a notice on his smart phone every time someone enters.

    3. There is legitimate concerns when talking about multi-family housing,

      I’m curious – what legitimate concerns that would be serious enough to mandate inspections?

      1. I should say – mandate inspections sans complaint.

      2. To find renters who own firearms. This is a part of Democrats’ strategy to vilify gun owners. Notice the requirement to report ANYTHING THAT LOOKS CRIMINAL TO POLICE. Too many idiots automatically link a gun to crime without knowing the status of the gun..legally owned by trained person with proper permit.

  6. The ChangeLab Solutions report notes that some tenants may have privacy concerns and wish to deny entry to inspectors. It recommends administrative inspection warrants as a means of breaching such barriers.

    Something something… if you’ve got nothing to hide… mumble mumble…

  7. Warrantless searches are just a common sense, sensible solution to the epidemic of gun violence.

    With whom do you side, kids or gangs?

    1. Me personally? With kids in gangs.

    2. Are you so scared and stupid that you would trade your rights for a FALSE SENSE OF SECURITY? Are you too stupid to realuze that “common sense” is highly subjective? Obviously you are an idiot gun hating democrat.

  8. It’s important to remember that the pillocks that does this kind of thing view the restrictions on their ability to enter resident-owned homes as a inconvenience to be addressed as soon as politically possible.

  9. When communities that try to foist these unwarranted searches on renters loose in court, they should be hit with ALL costs arising from court action plus a financial penalty stiff enough to not be soon forgotten. Additionally, the possibility of individual financial penalties levied against local officialdom, aka “officialdumb” should not be overlooked.

  10. Wow, so if I’m a landlord and want to rent out a property I get to surrender any protections from warrantless search and seizure. Yeah, I’m sure that’s real attractive to property owners and there’s little chance they’re going to bow out of the market rather than absorb yet another layer of liability and restriction on property they ostensibly own.

    I guess the fact I can include provisions for owner entry has no bearing on the matter, nor is it important that even free lease templates include it as a matter of course.

    Yet, this is the same party that wants more housing right?

    I guess what they’re really saying is that only Mother Government knows how to house you, and you shouldn’t trust anyone but Mother Government. Nevermind that if Mother Government is in charge of your housing, you can’t go to anyone other than Mother Government to resolve your claim. This must be why Section 8 housing is so successful…right?

    Why are Progressives always trying to make the arbiter of a conflict also the sole provider of the thing that is in conflict? It’s almost like they don’t believe monopolies are a bad thing, and are in fact monumentally beneficial in all circumstances…except the one they use to terrify you into submission.

    1. Yup. They are going to up-zone everything to allow multiple dwelling units and create incentives to do so, and then when most everyone is either a renter or a landlord, mandate routine inspections.

      Its for the children; how can you be against it?

    2. Wow, so if I’m a landlord and want to rent out a property I get to surrender any protections from warrantless search and seizure. Yeah, I’m sure that’s real attractive to property owners and there’s little chance they’re going to bow out of the market rather than absorb yet another layer of liability and restriction on property they ostensibly own.

      Since the 60s, we’ve been screwing over landlords because of poor rentees who couldn’t find a home but this time, THIS TIME!, Reason says we’ve gone too far… because now the rentees are being victimized too.

  11. Isn’t that always the problem with the nanny state?

    Some people get the idea that it would be good to protect renters from unscrupulous landlords through routine rental inspections (much like many states require car inspections) but then it morphs into a catch all where the inspectors become defacto agents of the state for whatever matters might be observed on the premises.

    Once you allow the state an inch, you know it will inevitably take the whole mile.

  12. I thoroughly enjoy the 10 illegal aliens living in the small, two bedroom house down the street. It has a large front lawn so parking the 5 cars and two vans is never a problem. I’m sure a visit to that home would disclose a spartan environment clean enough to make Ms Manners green with envy.

Please to post comments

Comments are closed.