Your Tenant’s Rights Regarding Municipal Inspections
Many communities are enacting new rental property inspection ordinances (RPIO) or adding single family homes to the list of properties subjected to inspection. Since many of these communities are new to the game, their inspectors may be ignorant of the limits of their zealous enforcement activities. One of the more frequent stumbles is the insistence that a property owner and a tenant must give the inspector access to the inside of the rental unit. Furthermore, if the tenant doesn’t give the inspector access, the landlord forfeits his right to rent the unit in question.
U.S. Constitution and the 4th Amendment
Most RPIOs provide, or are interpreted to provide, that if the resident of the property to be inspected refuses entry to the inspector, the inspector must obtain a administrative search warrant before he or she can conduct an inspection. Where this protection exists in RPIOs, the courts have generally upheld them as valid.
In 1980, in Hometown Co-Operative Apartments v. City of Hometown, 495 F.Supp. 55 (D.C. Ill. 1980), the Federal District Court for Illinois invalidated the RPIO enacted by the City of Hometown because the ordinance did not provide for procedures whereby the city was required to obtain a warrant to search a rental unit for which the occupant had refused to consent to the inspection.
Three additional points are important to understand regarding warrants obtained under RPIOs. First, it has been universally held that owners do not have the right to prohibit inspections of individual rental units. That right is reserved for the occupant of the unit, as determined by Chapman v. United States, 365 U.S. 610 (1961) in which the court held that the resident enjoyed the privacy rights in the leased premises, and only he or she could waive that right. If the occupant consents to an inspection, the owner cannot veto such consent. Likewise, if the occupant refuses to consent to the inspection, the owner cannot allow the inspection.
Second, in many cases, the resident may have the authority to consent to an inspection of the common and other areas of the owner’s community, even in the face of the owner’s objections. If the resident and the owner enjoy joint authority and use over the targeted areas, such as entryways, laundry rooms and storage rooms, then either the resident or the owner can provide the requisite consent for the inspection.
Third, it is important to note that the warrants issued under RPIOs are administrative, not criminal, in nature. Administrative warrant issuance requires fewer protections than criminal warrant issuance. To issue a criminal warrant, the governmental entity must show probable cause that a crime has occurred. The issuance of an administrative warrant is conditioned only on the proposed inspection being done in compliance with “reasonable legislative or administrative standards for conducting an area inspection,” as determined by Camara v. Municipal Court, 387 U.S. 523 (1967).
Clearly, under Federal law, a community has a right to inspect a rental unit but must obtain an administrative warrant if the tenant refuses entry.
The Housing Law of Michigan
Several years ago the Housing Law of Michigan was amended to address how rental inspection programs were enforced in Michigan so that it was in conformance with the rulings as cited above. The following citations within the Law (within Section 125.526) which address a tenant’s refusal for entry are as follows:
“(5) Except as provided in subsection (7), an inspector, or team of inspectors, shall request and receive permission to enter before entering a leasehold regulated by this act at reasonable hours to undertake an inspection. In the case of an emergency, as defined under rules promulgated by the enforcing agency, or upon presentment of a warrant, the inspector or team of inspectors may enter at any time.
(6) Except in an emergency, before entering a leasehold regulated by this act, the owner of the leasehold shall request and obtain permission to enter the leasehold. In the case of an emergency, including, but not limited to, fire, flood, or other threat of serious injury or death, the owner may enter at any time.
(7) The enforcing agency may require the owner of a leasehold to do 1 or more of the following:
(a) Provide the enforcing agency access to the leasehold if the lease provides the owner a right of entry.
(b) Provide access to areas other than a leasehold or areas open to public view, or both.
(c) Notify a tenant of the enforcing agency’s request to inspect a leasehold, make a good faith effort to obtain permission for an inspection, and arrange for the inspection. If a tenant vacates a leasehold after the enforcing agency has requested to inspect that leasehold, an owner of the leasehold shall notify the enforcing agency of that fact within 10 days after the leasehold is vacated.
(d) Provide access to the leasehold if a tenant of that leasehold has made a complaint to the enforcing agency.
(8) A local governmental unit may adopt an ordinance to implement subsection (7).
(9) For multiple lessees in a leasehold, notifying at least 1 lessee and requesting and obtaining the permission of at least 1 lessee satisfies subsections (5) and (7).”
Some of these are, like many laws, clear as mud.
Section (5) states that the inspector must get permission before entering a rental unit—unless there is an emergency as defined by the municipality in their local rules or they have obtained a warrant. The gray area here is, what does the municipality define as a “case of an emergency?” If we look to the language of Section (7), we might surmise that an emergency must be something that is a threat of serious injury or death—but we might be wrong. However, if we look back to the Federal rulings, we might be correct in believing that regardless of the circumstances, the municipality must get a warrant. See why we hire lawyers?
Likewise, under Section (6), the landlord must get permission to enter the premises unless there is an emergency. Most courts have held that if a landlord provides a 24 hour notice before entry and a clause to this effect in the lease AND the tenant does not refuse entry, a landlord may enter the premises—even if the tenant is not home.
Section (7) is where the real confusion comes in. Subsection (a) would lead you to believe that if a lease allows a landlord entry, the landlord must let the inspector in—regardless of the tenant’s refusal. Many municipalities incorrectly interpret this line to mean that they can force a landlord to let them in if the lease with the tenant gives the landlord right of entry. However, this isn’t correct. Line (a) simply means that the landlord must let the municipality in IF the tenant has given it’s consent to the inspection. Chapman v. United States makes this clear, i.e. “if the occupant refuses to consent to the inspection, the owner cannot allow the inspection.” The State of Michigan nor the local municipality cannot take away the 4th Amendment rights of the tenant.
Section (7) Subsections (b) through (d) are pretty clear and straightforward and seem to fit within Federal case law parameters. Under (c) the landlord is required to at least make an attempt to notify the tenant of the municipality’s wish to inspect and arrange for that inspection—unless the tenant refuses entry. It is very important to note subsection (d), which requires the landlord to contact the municipality within 10 days if a “refusing tenant” vacates the premises.
Section (8) creates another ambiguity. If a municipality doesn’t adopt the language of Section (7), can it enforce those requirements? One would assume that in the absence of that adoption, no enforcement is possible regarding Section (7).
Section (9)—thank goodness—this line is pretty straightforward.
So, what’s the final analysis?
In Michigan, it seems that:
A municipality may ask for an inspection of a rental unit to determine its compliance with local and state laws.
A landlord must make a good faith effort to contact the tenant and arrange for an inspection.
A municipality will need an administrative warrant if a tenant refuses entry unless there is an emergency as defined by local law.
A tenant can refuse an inspection except in emergencies or where the municipality has produced a warrant.
A landlord must let the municipality in for the inspection if the tenant has agreed to it.
A landlord cannot let an inspector in if the tenant has already refused entry.
A landlord must contact the municipality if a refusing tenant vacates the premises.
Can the city revoke your right to rent if a tenant refuses an inspection?
The Housing Law of Michigan addresses this in Section (11) of Section 125.526:
“(11) The enforcing agency shall not discriminate against an owner who has met the requirements of subsection (7) but has been unable to obtain the permission of the occupant, based on the owner’s inability to obtain that permission.”
In other words, a rental “permit” or “certificate of occupancy” cannot be pulled simply because a tenant has refused an inspection. Unfortunately, this does not address what happens if Section (7) is not applicable.
Can the city force you to evict your tenant for refusing the inspection?
No, the tenant is also protected and shall not be discriminated against for having refused an inspection. The municipality cannot force you to evict a tenant. The municipality has only two choices: wait until the tenant vacates the property or use an administrative warrant to obtain access.
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