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CONSTITUTIONAL CRISIS? Landlords sign away tenants' rights under city rental laws

Renters have no say when or how their homes are searched

COLUMBIA, 5/14/13 (Beat Byte) -- A notarized application for a so-called "rental compliance permit" under Columbia city ordinance demands landlords sign away not only their Constitutional right to protection from unwarranted search, but their tenants' right as well.  
 
"In consideration of the above Certificate of Compliance...applicant hereby agrees to permit the Director of Community Development to enter upon and inspect the premises...at any reasonable time," the application reads.  The director and his/her inspectors may then determine compliance with seven different city ordinances that cover everything from fire safety to zoning.
 
The 4th Amendment waiver is part of Columbia city ordinance 22-186, the Rental Unit Conservation Law (RUCL).   No warrant, probable cause hearing, or judge's signature is required once the property manager signs the right away.   What's more, "applicant" does not include tenant.   Tenants have no say, under the RUCL, as to when or how their homes are inspected.  
 
Under the US Constitution, the home is sacrosanct.    
 
"The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized," the 4th Amendment to the US Constitution requires.

The occupancy permit's 4th Amendment waiver is one of two provisions in Columbia rental property ordinances that may violate the right against unlawful search, landlord and tenant representatives say.    The second provision -- the Occupancy Disclosure Ordinance's warrantless tenant records search -- raised the issue of Constitutionality in January, as a local property management group unsuccessfully challenged its passage by the Columbia City Council.

In a bizarre twist, the RUCL's 4th Amendment waiver is actually optional, which raises the question why the permit application requires it.   In the ordinance, the waiver appears as a "may" in a sea of "shalls."

"Every operator shall submit an application for a certificate of compliance to the director."
 
"The application...shall be a written statement."
 
"The application for the certificate of compliance shall be on forms provided by the director..."
 
"The application shall be accompanied by the full payment of the inspection fees.
 
"The application may be accompanied by a written consent...authorizing the director to enter upon and inspect the premises for which the certificate is sought at any reasonable time for the purpose of determining whether or not the premises are in compliance with chapters 6, 9 (article II), 20, 23, 24, 25 and 29 of this Code."
 
Why Council members made the warrantless search consent optional is unknown -- the law was passed 35 years ago.   Instead of such a broad-based waiver, however, critics say the occupancy permit application should grant inspectors the right to enter the premises at most twice -- once to inspect and again to re-inspect -- and only in connection with Certificate approval.

Tenant consent, they add, should also be required, possibly as part of every lease.   What if city inspectors discover evidence of a crime during an unwarranted inspection?   Is the landlord liable for signing away the tenants' rights? 

As Columbia's citizens arrive from increasingly cosmopolitan -- and legally-sophisticated places -- questions like these are sure to become more pressing.    The first lawsuit against a landlord who consented to an unlawful search of a tenant's home could be just a few permit applications away. 
 
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