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Friday, 22 January 2010

4th Amendment & Privacy

RUCO, Super User, RUCO

PRIVACY/FOURTH AMENDMENT ISSUES

The Fourth Amendment of the Constitution provides guarantees against unreasonable search and seizure. It requires that governmental entities obtain either permission, or a warrant, before conducting a search.  None of us are constitutional scholars.  However, the information below makes it clear that the courts have found that warrantless inspections by a city inspector do no pass constitutional muster unless permission has been obtained by the resident of the unit being inspected.  This means that the city cannot conduct RUCO inspections unless the resident of the unit to be inspected agrees to the inspection, or a warrant has been obtained.  Residents have the right to refuse inspections. 

At this time it is not certain whether the city will make it clear to residents that they have the right to refuse inspections.  You may want to consider making it clear to your existing residents, and your new residents, that they do not need to consent to city inspections.  The choice is clear:  They can preserve their Fourth Amendment rights and refuse the inspection; or they can waive their Fourth Amendment rights and permit the inspection.

In Camara vs. Municipal Court of San Francisco, the Supreme Court ruled that an ordinance allowing warrantless inspections in non-emergency situations was unconstitutional; a renter does have the right to refuse warrantless inspections of his apartment by a city inspector. The court also decided that there is no legal distinction between "searches" and "inspections" even if the inspection is "part of a general, routine regulatory scheme." (See also: Maffucci vs. City of Philadelphia)

Furthermore, the renter does not simply have a right to refuse an inspection (which implies that if the tenant is not asked, he hasn't refused) but inspectors must obtain explicit permission from the tenant before entering the premises. Nor does the consent of a landlord serve as a substitute for the tenant's permission.

In a case against the village of Park Forest, Illinois, brought as a challenge to a similar inspections ordinance, the judge ruled that the Fourth Amendment requires the village to obtain the explicit consent of tenants before conducing the inspections, rather than relying on the consent of the landlord. (See: http://www.ij.org/media/private_property/park_forest/2_27_98pr.shtml)

This is further supported by Chapman v. United States, 365 U.S. 610 (1961), where the U.S. Supreme Court clearly held that a landlord cannot consent to a search of a tenant's home. And yes, a renter's apartment is just as much his home as an owner-occupied dwelling. For the duration of a lease, residential rental property is the home of a tenant. [See Cunningham, Stoebuck, and Whitman, The Law of Property, § 6.22 (1993).]

Without explicit consent, government officials cannot enter an individual's home (owned or rented) without either an individual's consent or a search warrant issued by a judge and based on reasonable suspicion.

In discussing the ordinance (as reported in the News & Record), many council members spoke in support of the ordinance as serving a public interest. Such interests do not take precedence over Fourth Amendment guarantees. In Camera, the court discussed this very issue:

The question is not, at this stage at least, whether these inspections may be made, but whether they may be made without a warrant. For example, to say that gambling raids may not be made at the discretion of the police without a warrant is not necessarily to say that gambling raids may never be made. In assessing whether the public interest demands creation of a general exception to the Fourth Amendment's warrant requirement, the question is not whether the public interest justifies the type of search in question, but whether the authority to search should be evidenced by a warrant, which in turn depends in part upon whether the burden of obtaining a warrant is likely to frustrate the governmental purpose behind the search. See Schmerber v. California, 384 U.S. 757, 770 -771. It has nowhere been urged that fire, health, and housing code inspection programs could not achieve their goals within the confines of a reasonable search warrant requirement. Thus, we do not find the public need argument dispositive. [387 U.S. 523, 534]

Friday, 22 January 2010

RUCO Overview

RUCO, Super User, RUCO

RUCO ORDINANCE


The material below is the city ordinance instituting the RUCO program.  The highlighted material addresses questions asked by association members when Dan Reynolds, Code Enforcement Manager, spoke at our November, 2007 meeting.

Sec. 11-40. Rental unit certificate of occupancy.

(a)   In addition to those conditions set forth in subsections 11-40(a) and (c) of this chapter, it shall be unlawful for any owner or the agent of any owner to rent or offer for rent as a dwelling any vacant structure or part thereof upon which a notice or order to repair, alter or improve, or to vacate and close, has been issued and is outstanding without said owner or agent first filing application for and securing a rental unit certificate of occupancy from the building inspector.

Existing rental units otherwise in compliance with prior building codes may continue to be rented and may be issued a rental unit certificate of occupancy by the city following an initial, no fee, inspection by the building inspection department determining compliance with the 2000 International Property Maintenance Code.

With regard to new construction, the building inspector shall inspect the rental unit and shall issue a rental unit certificate of occupancy, with no initial fee, if the rental unit is found to comply with the conditions set forth in the 2000 International Property Maintenance Code as adopted and made part of this chapter. If the unit is found to be out of compliance, no rental unit certificate of occupancy shall issue until the owner meets the minimum requirements set forth in this chapter. When, after examination and inspection, it is found that the repairs, alterations and improvements have been made (in accordance with the 2000 International Property Maintenance Code) and that the structure conforms with the provisions of this chapter a rental unit certificate of occupancy shall be issued.

The owner shall have an initial period of five (5) years from the date of implementation of this section, (January 1, 2004), to bring the rental unit into compliance with this chapter, however, as of January 1, 2009 all rental units must have a rental unit certificate of occupancy or a certificate of sample compliance as provided for in subsection 11-40(b) of this chapter before the unit may be offered for rent.

Rental unit certificates of occupancy shall be valid for a period of five (5) years from the date of issuance. If no violations are reported and confirmed within this period then a renewal rental unit certificate of occupancy shall be issued, with no fee, after the satisfactory completion of a sampling of the units to be renewed. If during the five-year period violations are reported and confirmed per subsection, repairs must be made within a thirty-day period following confirmation. Failure to repair in thirty (30) days will result in revocation of the rental certificate of occupancy and the imposition of a two hundred fifty dollars ($250.00) fee per unit for re-inspection and issuance of a new certificate. If a second violation is reported and confirmed for the unit within twelve (12) months of the first confirmed violation, repairs must be made within a thirty-day period following confirmation, and a renewal fee of five hundred dollars ($500.00) per unit confirmed to be in violation shall be charged and paid before the rental unit certificate of occupancy will be issued. Upon the reporting and confirmation of the third violation, within twelve (12) months of the first violation, repairs must be made within a thirty-day period, and a daily fine of twenty-five dollars ($25.00) per day shall be imposed, in addition to the five hundred dollar ($500.00) fee required to obtain a new certificate.

Exemption(s):   

(1)   Thirty-day rentals or less (e.g., furniture market rentals).

(2)   Upon change of ownership, current certificate passes with the purchase or sale of property.

(3)   Property under contract for "lease/purchase" when the effective date of the lease purchase agreement does not exceed one hundred twenty (120) days.

(4)   Installment contract sales.

The building inspector shall maintain rental unit certificate of occupancy records for a period of twenty-five (25) years. Rental unit certificates of occupancy shall be reissued automatically if there have been no reported and confirmed violations for the unit in issue.

Current Section 8 certifications issued by the Greensboro Housing Authority shall be considered as rental unit certificates of occupancy for purposes of this section.

(b)   When an owner requests and submits a multi-unit dwelling structure or an apartment complex on a single premise or campus with fifty (50) or more individual rental units to sampling inspection, a certificate of sample compliance authorizing occupation shall be issued for the structure or complex if it passes the sampling inspection. If the structure or complex fails the initial sampling inspection, subsequent inspections may be allowed in accordance with the standard sampling procedure.

A certificate of sample compliance permits all individual units in the structure or complex to be occupied for the period of time stated on the certificate, exempting the owner from the requirement that each unit be physically inspected and issued a rental unit certificate of occupancy prior to renting or offering to rent. The owner of a multi-unit dwelling structure or an apartment complex on a single premise or campus for which a certificate of sample compliance is issued must keep the certificate on file and make it available upon request of the city or any member of the public.

A sampling inspection occurs when the building inspector inspects a pool of representative units in the structure or complex using a standard sampling procedure approved by the superintendent of building inspections and adopted by the RUCO Appeals and Advisory Board. A certificate of sample compliance is evidence that a representative sample of units in the structure or complex has been inspected and meets the Minimum Housing Code Standard and shall not be construed as a certification that any given individual unit of a structure or complex has passed inspection. The issuance of a certificate of sample compliance does not exempt any unit in the structure or complex from physical inspection as otherwise provided for in Chapter 11 of this Code when a complaint or petition alleging non-compliance is filed or when the building inspector finds that probable cause for such an inspection exists. If an inspection of an individual unit confirms a violation of the Minimum Housing Code Standard, a certificate of sample compliance may be revoked, thereby subjecting all individual units in the structure or complex to the requirement that each unit be physically inspected and issued a rental unit certificate of occupancy prior to renting or offering for rent, unless the violations are cured as provided for in section 11-40 of this Code. If a certificate of sample compliance is revoked, the building inspector shall be required to inspect all units in the structure or complex within ninety (90) days of the revocation.

(c)   An inspection fee of twenty-five dollars ($25.00) shall be charged by the city for any type of courtesy inspection requested for a rental unit certificate of occupancy for the purpose of a loan closing. Multi-family rental units shall be charged an inspection fee of twenty-five dollars ($25.00) per building for courtesy inspections. This subsection shall cease to exist and shall not apply after the implementation period of the rental unit certification program (forty-two (42) months after January 1, 2004).

(d)   All laws and clauses of laws in conflict with the provisions of this section with regard solely to the issuance of rental unit certificates of occupancy are hereby repealed to the extent of such conflict. All other provisions of the Greensboro Housing Code shall remain in full force and effect.

(e)   Nothing in this section or in the 2000 International Property Maintenance Code adopted shall be construed to affect any suit or proceeding pending in any court, or any rights acquired, or liability incurred, or any cause or causes of action acquired, or existing, under any act or ordinance hereby repealed by this section, nor shall any legal right or remedy of any character be lost, impaired or affected by this section.

(f)   Advisory and appeals board.   

(1)   There is hereby created a board to be known as the "rental unit certificate advisory board".

(2)   The board shall be composed of fifteen (15) members serving three-year terms and representative of the following: Five (5) members (one (1) from each council district); one (1) council member, two (2) inspections staff; two (2) citizens at large; a representative of TAA; TREBIC; HCD; Greensboro Housing Coalition; Greensboro Neighborhood Congress. All members shall have one (1) vote except for staff appointments who shall serve in an advisory capacity and be appointed by the city manager to serve at his discretion.

(3)   Members of the advisory board shall be appointed by the city council for terms to expire on January 1. Said terms shall be for three (3) years except for the council representative who shall be appointed for a one-year term. The board appointments shall be staggered with four (4) members of the initial board serving three (3) years; four (4) serving two (2) years and three (3) serving one (1) year. The clerk shall conduct a drawing to determine the terms of the initial board members.

(4)   The powers and duties of the advisory board shall be as follows:

a.   Hear and determine appeals from decisions of the building inspector with regard to rental unit certificates of occupancy and certificates of sample compliance. All appeals shall be in compliance with G.S. § 160A-446 and all other applicable local, state and federal laws.

b.   Make recommendations to city council on any changes to the rental unit certification ordinance.

c.   Perform other duties as may be assigned to it from time to time by the city council.

(5)   Appeals from decisions of the advisory board shall be made to the minimum housing standards commission in the nature of certiorari.

(g)   This section [as amended by Ordinance No. 03-113] shall become effective on and after January 1, 2004.

(Code 1961, §§ 10-18(h), 10-19; Ord. No. 91-59, §§ 1, 2, 5-6-91; Ord. No. 03-113, §§ 1--6, 5-20-03; Ord. No. 04-167, §§ 2--6, 9-7-04; Ord. No. 05-07, § 1, 1-18-05; Ord. No. 07-12, § 1, 1-16-07; Ord. No. 07-49, § 1, 3-20-07)

Friday, 22 January 2010

RUCO History

RUCO, Super User, RUCO

(RENTAL UNIT CERTIFICATE OF OCCUPANCY)

In 2003 the Greensboro City Council passed the Rental Unit Certificate of Occupancy ordinance (to read the ordinance click here, then go to chapter 11, section 11-40.)  The stated purpose of the ordinance is to ensure that all rental housing in the city meets minimum property standards.  A noble sounding objective, who could argue with it? An examination of the history of property maintenance in Greensboro, the apparent philosophical underpinnings of the ordinance, and the details that will guide its administration are helpful in answering that question.

HISTORY

Historically (that is dating back to the 1960s) minimum property standards have been administered through an inspections program run by the city.  City officials maintain that they divided the city into areas, and assigned an inspector to each area.  They claim that over the course of a four or five year period every residential unit in the city was inspected.  Or at least every residential rental unit, and some single family owner occupied.  It makes a good story.  However, it doesn’t hold up very well to closer examination. 

Talking with a number of property owners it is clear that no systematic, comprehensive, inspections have ever been conducted.  Most owners of reasonably well maintained properties report that their properties have never been inspected, or have only been inspected if there was a complaint from a tenant that triggered the inspection.  That would lead one to conclude that either city officials are being disingenuous when they claim that there was a systematic program that inspected all properties, or that they are uninformed of how the inspections program they administered actually worked.  Neither of these conclusions inspires confidence in the officials who will be administering the RUCO program. 

If there had been an on going, systematic, inspection program for approximately forty years the city would have amassed a wealth of data on the housing base in Greensboro.  The type of inspections the city claims to have conducted would have resulted in a database that would, at a minimum, have included the address of all rental property in the city, and the number of rental units at each address.  This information should be complete and accurate up to the time the city stopped conducting these systematic inspections.  Taking these data, and combining them with data from building permits issued from that date forward would permit the city to form a comprehensive and accurate database of rental housing in Greensboro.  That hasn’t happened.  And apparently isn't possible.

In attempting to implement the RUCO ordinance the city has demonstrated it has little or no knowledge of what rental housing exists in the city, where it is located, or who owns it.  This further calls into question the supposed systematic inspections that had been conducted.  This is important, because part of the rationale for RUCO is that it is really not a new program, but merely the continuation of an existing program in a slightly different form.

APPARENT PHILOSOPHICAL UNDERPINNINGS OF RUCO

Since the philosophy underlying the RUCO has never been explicitly stated it is necessary to try to determine it from what has been said. 

IMPROVE HOUSING QUALITY

One of the stated goals of the ordinance is to improve the quality of housing in the city.  A lofty sounding objective, and one with which most people would agree.  But, what that really means is that the goal of the city is to increase the cost of housing in the city.  And not just any housing, but specifically rental housing, since the RUCO focuses only on rental housing. 

The facts of economic life are not difficult to understand—unless you happen to be an elected official, or work for government, an are insulated from the real world.  If money must be spent to improve the quality of housing that money must come from somewhere.  Property owners have only one source of income for maintenance and improvement, the rent they receive.  So, in the face of increased taxes and fees levied by government the property owner has no choice but to increase rents to realize the money needed to be in compliance with city ordinances.  In reality, the RUCO ordinance is an ordinance to raise rents throughout the city. 

The state of the rental market is such at the moment that general rent increases are unlikely.  Historically high vacancy rates plague the rental industry.  However, as these high vacancy rates work themselves out of the system the pent up pressure for major rent increases will be released throughout the city.  When that happens, and tenants complain, be sure to make it clear that they have the City of Greensboro to thank for their rent going up.

TENANT INCOMPETENCE

Another apparent philosophy underlying the ordinance is that tenants are incompetent and incapable of looking after themselves without the intervention of the heavy hand of government.  It follows from this governmental view of tenants that they will live in unsanitary, unsafe, substandard conditions unless government intervenes on their behalf. Anyone with any knowledge of the rental market knows better.

The door swings both ways.  Tenants can, and do, move out.  Even if it means breaking a lease.  Landlords can, and do, make all manner of accommodations to retain desirable tenants—in strong and weak rental markets. 

The market is the most efficient and effective way of ensuring that the supply of anything, in this casing housing, meets the demand for it.  Housing that is poorly maintained and offers few amenities is priced to reflect these facts.  If no one wants to live in such housing it remains empty.  If someone chooses to rent such property it is obviously meeting that individual’s needs better than anything else that is available. 

Of course, it may be that the RUCO ordinance is really an attempt by City Council to eliminate poverty by making it too expensive for poor people to live in Greensboro.

Substandard Housing

 The City of Greensboro has demonstrated a remarkable inability to deal effectively with slum housing over the last 35-40 years.  There are a number of glaring examples in the city of housing that has been allowed to deteriorate.  Every few years the city goes through the motions of taking action against these properties.  After much gnashing of teeth and wringing of hands everything quietly returns to the status quo ante. 

The city would like one to believe that the RUCO ordinance is the tool it needs to correct this situation.  It is not.  High Point, for example, has found ways of dealing with this issue without an inspections program or the ensuing bureaucracy.   RUCO is a cosmetic attempt to mask a relatively small problem by shifting attention elsewhere.  It is also a waste of resources on an inspections program to inspect properties that are not problems, rather than focusing the resources where the problem exists. 

Owner Occupied Housing Exempt

In their zeal to raise the standard of housing in the city the powers that be seem to have no interest in also raising the standard of single family owner occupied housing.  There are a number of possible reasons for this.  It is quite likely that the city does not want to take the political and public relations heat that would result from city inspectors demanding entry into owner occupied homes to do inspections.  The city seems sensitive to the invasion of privacy issue when it comes to homeowners, but not when it comes to tenants.

One also suspects that the city fears a public relations disaster if an inspector condemns an owner occupied house whose resident is a sympathetic senior citizen living on a fixed income who cannot afford to make the needed repairs.  Living in squalor under these circumstances is acceptable, but not if the occupant is a 30 year old tenant who could move whenever it suited him.    What’s wrong with this picture?

The city claims that they will inspect owner occupied housing as needed.  Fair enough—if they inspect rental housing as needed. 

IMPLEMENTING THE RUCO ORDINANCE

The city has begun the RUCO inspections and they have done so without making any effort to inform property owners of the ordinance or their rights and responsibilities under it.  This seems to be the result of two things:  an indifference on the part of city officials toward the property owner, and an inability to identify the property owners they are planning on inspecting. 

The indifference is apparent in talking with city officials.  They are very polite, but it is painfully apparent that it never occurred to them that it they should notify property owners of what was being done.

The inability to identify rental property owners is more interesting.

In attempting to implement RUCO the city began by using a database supplied by the Water Department to attempt to notify property owners of impending inspections.  They soon learned the inadequacy of this approach, and have switched to a census database.  They claim that the census database is better.  It has been requested that they notify property owners in advance to inform them about the RUCO ordinance, that they plan on inspecting their property, and schedule such appointments to increase the efficiency of the city inspectors, and allow the owners to be present.  The city has said that they plan to follow that procedure for apartment complexes only.  For all other rental properties they will simply mail out notices that the inspectors will be in the area and will be knocking on doors.  This is a tacit admission that regardless of the database they have chosen to use the city is unable to identify rental property.  This is especially interesting in view of the supposed comprehensive inspection program the city claims was the predecessor to the RUCO.

PROPERTY MAINTENANCE STANDARDS

The city has adopted the International Property Maintenance Code to guide their efforts under the RUCO ordinance.  Call the inspections program to request a copy.  Then consult the city ordinances to see which parts have been adopted, and which have been modified.

Ask the Inspections Department for the checklist that the inspectors will be using.  You need to be well informed.

INSPECTIONS

Will all inspectors enforcing the ordinance in essentially the same way?   Do they all have similar levels of training and certification?  Good questions.  Time will tell.


CONCLUSIONS

The RUCO ordinance appears to have resulted from the unfortunate confluence of misguided good intentions, political pandering, and bureaucratic empire building.   How the ordinance is implemented and its long term effects on property owners and affordable housing are uncertain, but not promising.  Once government initiates a regulatory program the tendency is for the program to become more intrusive and more entrenched.    

It is vital that property owners organize now so that they can speak with a unified voice, and form an effective lobby to protect their interests and those of their tenants.  Residential, and commercial, rental property owners who are not now a members of the Greensboro Landlord Association should join now.

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