May 30, 2017

Victory in residential rental inspection case

By Meriem L. Hubbard Senior Attorney

Warrantless inspections of residential rental properties are a source of controversy in many California cities. Take, for example, the City of Highland located in San Bernardino County. The City adopted a Residential Rental Enhancement Program requiring an inspection of all residential rental properties. Pursuant to the Program, city inspectors could inspect 70 items in and around rental homes, including everything from contrasting color address numbers to dishwashers and bathroom exhaust fans.

Karl Trautwein, who owns a rental home in the City of Highland, and his long-time tenants refused the City’s attempts to conduct a warrantless search of the home.  Rather than seek a warrant to search the property, as the rental Program provides, the City sent letters to Mr. Trautwein threatening re-inspection fees and administrative citations. And the City was clear that, without an inspection, Mr. Trautwein would not receive a current residential unit inspection certificate.  Without an inspection certificate, Mr. Trautwein would not receive a license to rent the home, and the tenants could not occupy the home.

Almost a year ago, Pacific Legal Foundation filed a lawsuit against the City of Highland on behalf of Mr. Trautwein and his tenants.  We alleged that residential property owners and their tenants cannot be forced to waive their Fourth Amendment right to deny the City’s request to conduct a warrantless inspection. Nor can the City attempt to coerce property owners and tenants to allow warrantless searchs by threatening fines and citations, and denying business licenses.

The U.S. Supreme Court recognizes that administrative searches impose significant intrusions upon the interests protected by the Fourth Amendment.  A search of private property should be supported by a warrant demonstrating a reasonable governmental interest. Thus, if the City of Highland believed that it had a valid public interest to justify an intrusive search of every rental home in the City, or a portion of the City, there may be been probable cause to issue a search warrant.  But the City did not seek a warrant, and cannot coerce the consent of property owners or tenants to allow warrantless inspections.

In response to our lawsuit, the City rescinded the offending provisions of the Rental Program which required an inspection in exchange for the right to rent or occupy rental homes.  Instead, property owners can self-certify that conditions on the property comply with the City’s laws.  This takes government out of the inspection process and protects the privacy rights of tenants.

Mr. Trautwein described the impact of his lawsuit as follows: My federal lawsuit has caused the City of Highland to shut down its unconstitutional interior inspection program. Tenants in Highland will no longer have strangers violating their privacy. Landlords in Highland will no longer be subjected to unreasonable searches of their property. Instead, Highlands limited code enforcement resources can focus on real problem cases. This is a great victory for all – landlords, tenants, and the City.

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