Development

Local Law Requiring Warrantless Inspection of Rental Units Held Unconstitutional

ATM One, LLC v. Incorporated Village of Hempstead

NYLJ 1/17/12, p. 22, col. 4

AppDiv, Second Dept.

(memorandum opinion)

Editor's Note: For more analysis of the problem raised by ATM One, see the lead article by Steven Silverberg in this month's issue.

In an action by landowners for a declaration that a local law ordinance requiring registration and inspection of rental units is unconstitutional, landowners appealed from Supreme Court's declaration that the ordinance was constitutional. The Appellate Division reversed, holding the local law unconstitutional on its face.

In 2009, the village enacted a local law requiring registration of each rental dwelling unit in the village and a rental occupancy permit for each unit. The law also required a site inspection of each unit and, for all units not in one- to four-family homes, a certification from an architect or engineer that the property is in compliance with all provisions of the village code and all state and county laws and regulations. When landowners, who own rental units within the village, brought this action to declare the local law unconstitutional, Supreme Court upheld the local law. Landowners appealed.

In reversing, the Appellate Division held that the local law was invalid because it conditioned lawful use of the property on warrantless inspection of the property. As a result, the court held that landowners had overcome the presumption of constitutionality that accompanies legislative enactments.

COMMENT

In Sokolov v Village of Freeport, 52 N.Y.2d 341, the Court of Appeals held that municipal regulations may not authorize or effectively require a warrantless inspection of rental property. In Sokolov, the court held that the combination of a requirement that a rental property undergo an administrative inspection to obtain a permit and a penalty provision for renting without a permit were unconstitutional because the effect of the two provisions was to deprive the owner of any economic benefit from his rental property unless he consents to a warrantless search. Id. In such instances, an “owner's consent is not voluntarily given as it is clearly the product of coercion.” Id.

Municipalities have avoided the breadth of Sokolov by crafting ordinances that require an administrative inspection to obtain a permit, impose sanctions when the permit is not obtained, but also provide that the owner may insist that the municipality obtain a warrant before conducting an inspection of a rental dwelling unit. In Stender v. City of Albany, 188 A.D.2d 986, the court upheld such an ordinance against a declaratory judgment challenge, holding that the warrant requirement protects the owner's constitutional rights and insures the ordinance's facial validity. The court in Stender declined to speculate about unconstitutional application of the ordinance. Other courts have suggested that if the municipality were to impose criminal sanctions before seeking a search warrant, the ordinance might be unconstitutional as applied because it would effectively coerce an owner to consent to a warrantless search in order to avoid criminal sanctions. Thus, in Conviro Associates Inc. v. City of Glen Cove, 2011 WL 2292578, the court, after upholding the facial validity of an ordinance that included a warrant requirement, denied the city's summary judgment motion on the owners' “as applied” challenge, holding that the owners had raised a triable issue of fact as to whether the city would enforce the ordinance by imposing criminal sanctions if the owner leased premises without consenting to an inspection. The court's apparent fear is that the city would not bother to obtain a warrant, thus rendering the ordinance unconstitutional as applied.

Many ordinances continue to impose inspection requirements without warrant provisions, apparently at odds with Sokolov, yet there have been no challenges. For instance, regulations require inspections of boilers and elevators, but make no provisions for warrants. See N.Y. Industrial Code ' 4-4.0; See N.Y.C. Administrative Code ' 27'998. Although no courts have done so, perhaps courts will find that safety inspection requirements of communal utilities are outside of the scope of Sokolov.

Local Law Requiring Warrantless Inspection of Rental Units Held Unconstitutional

ATM One, LLC v. Incorporated Village of Hempstead

NYLJ 1/17/12, p. 22, col. 4

AppDiv, Second Dept.

(memorandum opinion)

Editor's Note: For more analysis of the problem raised by ATM One, see the lead article by Steven Silverberg in this month's issue.

In an action by landowners for a declaration that a local law ordinance requiring registration and inspection of rental units is unconstitutional, landowners appealed from Supreme Court's declaration that the ordinance was constitutional. The Appellate Division reversed, holding the local law unconstitutional on its face.

In 2009, the village enacted a local law requiring registration of each rental dwelling unit in the village and a rental occupancy permit for each unit. The law also required a site inspection of each unit and, for all units not in one- to four-family homes, a certification from an architect or engineer that the property is in compliance with all provisions of the village code and all state and county laws and regulations. When landowners, who own rental units within the village, brought this action to declare the local law unconstitutional, Supreme Court upheld the local law. Landowners appealed.

In reversing, the Appellate Division held that the local law was invalid because it conditioned lawful use of the property on warrantless inspection of the property. As a result, the court held that landowners had overcome the presumption of constitutionality that accompanies legislative enactments.

COMMENT

In Sokolov v Village of Freeport, 52 N.Y.2d 341, the Court of Appeals held that municipal regulations may not authorize or effectively require a warrantless inspection of rental property. In Sokolov, the court held that the combination of a requirement that a rental property undergo an administrative inspection to obtain a permit and a penalty provision for renting without a permit were unconstitutional because the effect of the two provisions was to deprive the owner of any economic benefit from his rental property unless he consents to a warrantless search. Id. In such instances, an “owner's consent is not voluntarily given as it is clearly the product of coercion.” Id.

Municipalities have avoided the breadth of Sokolov by crafting ordinances that require an administrative inspection to obtain a permit, impose sanctions when the permit is not obtained, but also provide that the owner may insist that the municipality obtain a warrant before conducting an inspection of a rental dwelling unit. In Stender v. City of Albany, 188 A.D.2d 986, the court upheld such an ordinance against a declaratory judgment challenge, holding that the warrant requirement protects the owner's constitutional rights and insures the ordinance's facial validity. The court in Stender declined to speculate about unconstitutional application of the ordinance. Other courts have suggested that if the municipality were to impose criminal sanctions before seeking a search warrant, the ordinance might be unconstitutional as applied because it would effectively coerce an owner to consent to a warrantless search in order to avoid criminal sanctions. Thus, in Conviro Associates Inc. v. City of Glen Cove, 2011 WL 2292578, the court, after upholding the facial validity of an ordinance that included a warrant requirement, denied the city's summary judgment motion on the owners' “as applied” challenge, holding that the owners had raised a triable issue of fact as to whether the city would enforce the ordinance by imposing criminal sanctions if the owner leased premises without consenting to an inspection. The court's apparent fear is that the city would not bother to obtain a warrant, thus rendering the ordinance unconstitutional as applied.

Many ordinances continue to impose inspection requirements without warrant provisions, apparently at odds with Sokolov, yet there have been no challenges. For instance, regulations require inspections of boilers and elevators, but make no provisions for warrants. See N.Y. Industrial Code ' 4-4.0; See N.Y.C. Administrative Code ' 27'998. Although no courts have done so, perhaps courts will find that safety inspection requirements of communal utilities are outside of the scope of Sokolov.