The Constitutionality of Pre-Occupancy Inspections

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