The Constitutionality of Pre-Occupancy Inspections

The Sokolov court relied heavily upon the U.S. Supreme Court decision in Camara v. Municipal Ct, 387 U.S. 523. The Camara Court noted that warrants for administrative inspections do not have as high a standard as warrants related to criminal inspections, but “[the] agency's particular demand for access will of course be measured, in terms of probable cause to issue a warrant, against a flexible standard of reasonableness that takes into account the public need for effective enforcement of the particular regulation involved.” Id. at 545.

In balancing the need to protect the public against the rights of individual privacy, the Sokolov court also found that the requirement for a warrant provides protection against arbitrary actions to effectively get back at an individual in what the court referred to as “spite” or as a pretext to further some other police investigation. The Sokolov court also noted that “minor and infrequent inconvenience which a warrant requirement may create cannot overshadow the substantial benefits which will result to the individual's dignity and liberty through the preservation of his right to privacy. It must also be emphasized, however, that our holding is not to be construed as preventing prompt inspections in true emergency situations (see Camara v Municipal Ct., 387 U.S. 523, 539.” Sokolov at 348-49

Local Laws

Yet, local laws requiring pre-occupancy inspections have been upheld in New York, if they provide certain safeguards that do not require inspection without a warrant. Thus, in one case, where the City of Kingston Code provided for the issuance of a warrant in the event the property owner failed to otherwise permit an inspection of a residential rental unit “where there is a reasonable cause to believe that there is a violation of this Article or [applicable safety and maintenance codes],” the court found “as the plain language of the Kingston City Code requires either the consent of the owner or a valid search warrant in order for the Building Safety Division to inspect property, we find it to be facially constitutional (see Pashcow v Town of Babylon, 53 NY2d 687, 688, 421 NE2d 498, 439 NYS2d 103 [1981]).” McLean v. City of Kingston, 57 AD2d 1269.

Therefore, it appears that the courts of New York have concluded that mandatory pre-occupancy inspection does not meet constitutional scrutiny. However, if a local law provides for either voluntary inspection or obtaining a search warrant, the local law will be upheld.

Steven M. Silverberg, a member of this newsletter's Board of Editors, is a partner in Silverberg Zalantis LLP, where he concentrates his practice in municipal and land use law and related litigation. He blogs on related topics at http://blog.szlawfirm.net/.

Building Inspectors have the difficult job of determining whether violations that affect the public health and safety exist, but property owners also have a right to be protected from unlawful searches of their property, pursuant to the Fourth Amendment of the U.S. Constitution. Most of the time, local building officials conduct their inspections because someone has taken out a permit to build or renovate a structure. This presents an easy case, because taking out the permit brings with it the requirement that the new work be inspected. However, over the years there have been attempts by municipalities to require pre-occupancy inspections of rental properties, even when there has been no new construction. Many of these laws have required inspections not only prior to the initial occupancy, but each time there is a new tenant.

A Recent Court Decision

Recently, a village's law requiring occupancy applications and inspection of rental units, before a previously occupied unit may be reoccupied, was held to be unconstitutional by the Appellate Division. In ATM One, LLC v. Incorporated Village of Hempstead , 936 NYS2d 263, the court noted that the local law:

required registration of each rental dwelling unit in the Village and a 'rental occupancy permit' for each rental dwelling unit … the law (hereinafter chapter 106) requires a site inspection of 'each rental dwelling unit': 'The Superintendent of the Building Department or his or her delegate shall review each application for completeness and accuracy and shall make an on-site inspection of the proposed rental dwelling unit or units' (Village Code ' 106-6).

While noting that there is a strong presumption of constitutionality of legislative actions, the court held the Hempstead local law unconstitutional, noting that in the Court of Appeals case of Sokolov v Village of Freeport, 52 NY2d 341:

the Court of Appeals examined a local ordinance that required rental permits similar to those required by the Village here. That ordinance, like the one at bar, required site inspections and certifications before a permit or renewal could be issued. The Court declared that '[i]t is beyond the power of the State to condition an owner's ability to engage his property in the business of residential rental upon his forced consent to forego certain rights guaranteed to him under the Constitution' (Id. at 346), and it held that the ordinance was unconstitutional 'insofar as it effectively authorizes and, indeed, requires a warrantless inspection of residential real property' (Id.).

The U.S. Supreme Court

The Sokolov court relied heavily upon the U.S. Supreme Court decision in Camara v. Municipal Ct , 387 U.S. 523. The Camara Court noted that warrants for administrative inspections do not have as high a standard as warrants related to criminal inspections, but “[the] agency's particular demand for access will of course be measured, in terms of probable cause to issue a warrant, against a flexible standard of reasonableness that takes into account the public need for effective enforcement of the particular regulation involved.” Id. at 545.

In balancing the need to protect the public against the rights of individual privacy, the Sokolov court also found that the requirement for a warrant provides protection against arbitrary actions to effectively get back at an individual in what the court referred to as “spite” or as a pretext to further some other police investigation. The Sokolov court also noted that “minor and infrequent inconvenience which a warrant requirement may create cannot overshadow the substantial benefits which will result to the individual's dignity and liberty through the preservation of his right to privacy. It must also be emphasized, however, that our holding is not to be construed as preventing prompt inspections in true emergency situations (see Camara v Municipal Ct., 387 U.S. 523, 539.” Sokolov at 348-49

Local Laws

Yet, local laws requiring pre-occupancy inspections have been upheld in New York, if they provide certain safeguards that do not require inspection without a warrant. Thus, in one case, where the City of Kingston Code provided for the issuance of a warrant in the event the property owner failed to otherwise permit an inspection of a residential rental unit “where there is a reasonable cause to believe that there is a violation of this Article or [applicable safety and maintenance codes],” the court found “as the plain language of the Kingston City Code requires either the consent of the owner or a valid search warrant in order for the Building Safety Division to inspect property, we find it to be facially constitutional ( see Pashcow v Town of Babylon , 53 NY2d 687, 688, 421 NE2d 498, 439 NYS2d 103 [1981]).” McLean v. City of Kingston , 57 AD2d 1269.

Therefore, it appears that the courts of New York have concluded that mandatory pre-occupancy inspection does not meet constitutional scrutiny. However, if a local law provides for either voluntary inspection or obtaining a search warrant, the local law will be upheld.

Steven M. Silverberg, a member of this newsletter's Board of Editors, is a partner in Silverberg Zalantis LLP, where he concentrates his practice in municipal and land use law and related litigation. He blogs on related topics at http://blog.szlawfirm.net/.