REALTOR(R) Association Sues City Over Mandatory Pre-Sale Inspections

The Fourth Amendment to the Constitution of the United States of America provides that

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 seized.”

The U.S. Supreme Court has written that “The basic purpose of this Amendment… is to safeguard the privacy and security of individuals against arbitrary invasions by government officials.”  Moreover, it has said, “the physical entry of the home is the chief evil against which the wording of the Fourth Amendment is directed.”

A while back we wrote about a Federal Court ruling as unconstitutional a city ordinance that mandated inspections of rental housing.  (Baker v. City of Portsmouth, U.S. District Court for the Southern District of Ohio, Sept. 30, 2015) The Youngstown, Ohio, ordinance, adopted in 2012, required the inspection (and any required repairs) of single-family dwellings before they could be issued a permit which would allow them to be operated as a rental property.  The scope of the inspection included a list of eighty search items.

Now, in a somewhat similar situation, the Santa Barbara Association of Realtors has filed suit against the City of Santa Barbara, alleging that its Zoning Information Report (ZIR) ordinance “as applied and on its face…imposes unconstitutional conditions on the Fourth Amendment right of homeowners to be free from unreasonable searches.”

Here, according to the complaint, are the facts:

  • The ZIR requires sellers of residential property to apply for and submit to the City a zoning information report (ZIR) prior to the sale of the home.
  • In order to obtain a ZIR, homeowners must first submit a ZIR application and pay a fee to the City no later than five days after entering into a sale agreement. The fee is currently set at $475 for individual units.
  • The ZIR lists any known or discovered nonconformities or violations of any ordinance or law.
  • In addition to other documents, the ZIR must include “the results of a physical inspection.”
  • The ZIR inspection is required, and includes the interior of all residential units and accessory structures (e.g. garages, sheds, studios), as well as the entire grounds of a seller’s residence.
  • A property owner may refuse to consent to a ZIR inspection.
  • If a seller refuses consent to enter the home, the City divulges to the buyer that the seller refused consent, and requires the seller to pay a $355 ZIR fee.
  • Any homeowner refusing to comply with the ZIR ordinance is guilty of a misdemeanor, and upon conviction thereof punishable by a fine of up to $500 or by imprisonment of up to six months, or both.

In the City of Portsmouth case, mentioned at the outset here, in order to comply with the Court’s ruling, the city developed an administrative mechanism whereby the city could obtain a warrant for the inspection.  It was the warrant-less aspect of the inspections that caused the problem.  Whether such an alternative might be available to the City of Santa Barbara, or whether it would be palatable, is not known at this time.

The Pacific Legal Foundation, a respected public-interest law firm is representing the Santa Barbara Association of Realtors®.  Whatever happens in the Superior Court action, it will not be at the level to be precedent-setting.  Nonetheless, it will be closely watched.

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