There is a class action lawsuit against the City of Warren, Michigan regarding their practices regarding rental property inspections. If you own or have owned rental property in Warren you may be able to join the class. Here is a link to a District Court opinion regarding this suit:
Heads up: The U.S. Supreme Court and many lower U.S. District Courts since then have ruled that rental inspections are legal and municipalities may carry out an inspection program and require registration and certification. However, a municipality cannot force their way in--they must have the tenant's permission (not the owner's). If the tenant does not give permission, the municipality can do one of two things: get an administrative warrant (which does not require probable cause) or wait until the unit is vacant. Also, the municipality cannot penalize the tenant or the property owner for the tenant exercising their right to refuse, i.e. fine, fee or condemn the property simply for the failure of the tenant to give permission. All of this is required in order to protect the tenant's 4th Amendment rights.
One particular and fairly recent case in Flint, Michigan found that the City of Flint was incorrectly carrying out their rental inspection program by not allowing for tenant's refusal and specifically stating in their ordinance that an administrative warrant was necessary where the tenant refused--if the inspection was not an emergency. The City subsequently changed its ordinance but the Court ruled that it was too late in this particular case and the Plaintiff prevailed--basically because the ordinance was previously incorrect at the time of the Plaintiff's suit. My attorney has stated that the court in this case did not rule all rental inspections unconstitutional--rather, just the way in which Flint was doing them. (FYI: I'm not an attorney, and I'm not giving legal advice--just passing along information.)
Good news: RPOA of Michigan promoted a bill to change Michigan's law regarding inspections. This law was signed by the Governor and goes into effect at the end of February 2018. In short, under the current law, municipalities are allowed to enter a rental unit without permission--IF there is a clause in the lease allowing the landlord entry. In other words, municipalities are allowed to enter under the landlord's contracted right of entry. This law is unconstitutional because it does not provide the tenant an opportunity to directly deny entry for a government rental inspection. These types of clauses in leases do not specifically give the municipality the right to enter--just the landlord. Starting in February under the new law, municipalities must get permission from the tenant to enter the premises for a rental inspection. The landlord must make a good faith effort to obtain the tenant's permission for the inspection. If the tenant refuses, the municipality must either get an administrative warrant or wait until the unit is vacant.
Great information, thanks!!!
(@Jeff Rabinowitz - Sorry if this question takes your post in a different direction - had a question to Clay re:new law.)
@Clay Powell - I saw this law passed and had a couple questions I hoped you could answer:
1) The law (as it appeared to me) said the landlord cannot discourage the tenant from allowing the inspection, the landlord has to, as you put it, give a good faith effort. What exactly does that mean? Can I, as the landlord, tell my tenants I would prefer they not have the inspection? Do I have to limit my comments? Am I only allowed to say they do not have to allow an inspection?
2) What about the cost of the inspection? Do we have to pay for the inspection ahead of knowing whether or not the inspector can enter? If they cannot, is the inspection fee refunded? Or is it retained by the municipality until they can complete the inspection? Or is the fee associated with the inspection used to cover the cost of the inspector attempting to gain access?
3) The law says the municipality has to be notified once it is vacant. What is the penalty for not notifying them, per the law? What if I notify them and then a new tenant moves in before they can inspect? What if a tenant moves out one day and a new tenant moves in the next day?
I know you said you are not a lawyer, but I thought since you work on this type of thing regularly you might have some more insight into the law and how it structured, what the possible details are for implementing, etc.
Thanks for any help!
1) The landlord should in no way discourage or incentivize the tenant to deny entry--that wouldn't be a good faith effort. Telling them that they have a right to refuse is OK.
2) You'll have to deal with the municipality on that one. State law does not allow a city to charge for something they do not do. Just a side note: A registration fee is different from an inspection fee...though some municipalities merge the two.
3) The municipality would set the fee, violation, etc. for no informing them of the move and the cost would be determined locally. Some communities pursue civil infractions--others turn them into misdemeanor cases. Per your hypothetical case: The new tenant has a right to refuse and if they say no, it starts all over again.