Landmark Victory for Privacy, Home Owners, and the Constitution

[Nicholas Varner]

Landlords scored a victory last month in the State of Ohio. The decision Baker v. City of Portsmouth a landmark victory for property ownership rights and the fourth amendment. Municipalities all over this country are forcing themselves into our homes with threats such as: "you cannot rent your home without a rental inspection and paying our rental licensing fees" and "we must inspect the inside of your home to insure it meets our standards." These overreaches by cities are perhaps well-meaning, perhaps not. In certain circumstances, cities with older housing supplies feel the need to do something to maintain the aesthetic quality and safety of these municipalities. On the other hand, being the enterprising country that we are, sometimes government, too, gets inspired to "enterprise". They start looking at budget shortfalls and think "how can we extract more money out of our citizens?" Cameras are installed to mail tickets for traffic violations, speed traps are set up, and our homes are inspected so that cities can tell us what is ok and what is not ok (each time charging us money for the inspectors unsolicited services). The Supreme Court of Ohio said, "enough!" 

The court found that cities charging rental licensing fees, invading our homes in the name of safety, and charging for annual inspections was in violation of the fourth, fifth, and fourteenth amendments. The fourth amendment states: "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." In other words, unless you have probable cause, the government has no reason to be inside my house. The City of Portsmouth argued that it was a special needs exception of a closely regulated business. "The purpose of [the fourth amendment] is to safeguard privacy and security of individuals against arbitrary invasions by government officials." 

When it came to cities fining home owners, or landlords, for failing to comply with a search for a property while tenants occupied the property and paid the landlord for a profit, the court ruled "owners/tenants of rental properties in Portsmouth are thus faced with the choice of consenting to the warrantless inspection or facing criminal charges, a result the Supreme Court has expressly disavowed under the fourth amendment." 

Translation: cities have no right to be inside your house without a warrant. They also have no legal justification to shake down their citizens with rental licensing fees or unlawful searches. Putting citizens in the position to choose between fines and criminal charges for failing to comply with municipal policies that are in violation of the law. 

What now? Just yesterday, I went on one of these city inspections. It's still happening in many municipalities. They are unaware of this decision. We as realtors and real estate professionals have the duty to speak for our rights as property owners. The constitution states that the unlawful search of another man's home is an "evil", but it will keep happening unless we speak up. The message the court delivered is clear. It's not acceptable or lawful for cities to shake us down for their cut, nor is it their place to enter our homes without a warrant.