Department of State Codes Division Southern Tier Regional Office Newsletter

Fire Safety Inspections (in general)

Multiple Dwelling Inspections(Specific)

11/08/2010

Recently, there have been a lot of questions regarding fire safety inspections of multiple dwellings. In the past, there have been code officials and property owners who have been arrested for trespass for improper inspections.

Parts of 19 NYCRR 1203. Reads as follows:

Every city, village, town, and county, charged under subdivision 2 of section 381 of the Executive Law with administration and enforcement of the Uniform Code shall provide for such administration and enforcement by local law, ordinance or other appropriate regulation. Any such instrument or combination thereof shall include the features described in section 1203.3 of

this Part.

(h) Fire safety and property maintenance inspections. Provisions shall be made for:

(1) fire safety and property maintenance inspections of buildings which contain an area of public

assembly at intervals not to exceed one year;

(2) fire safety and property maintenance inspections of all multiple dwellings and all nonresidential occupancies at intervals consistent with local conditions, but in no event shall such intervals exceed one year for dormitory buildings and three years for all other buildings.

Hopefully, your local municipality passed a local that reflects the requirements of 19 NYCRR 1203.

The area of public assembly does not seem to be an issue. Neither are business and mercantile occupancies, but I will touch on them later.

The 4th amendment of the US Constitution reads as follows:

"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."

Throughout the years courts have held that the fourth amendment means that a person’s dwelling is not subject to periodic inspections of any kind. You could fill several bookcases with their decisions. The courts have used the term "privacy rights" in their determinations. The other term used is the "Reasonable Expectation of Privacy." These privacy rights are present in a person’s dwelling unit whether or not they are living in a single family home, two family home, or multiple dwelling. (A person’s home is his/her castle)

Courts have determined that there are only three ways to enter an area where there is a "Reasonable expectation of Privacy." Those three ways are:

1) Consent. The person with the privacy rights gives consent. That would generally be anybody over the age of 18 who lives there or is a legal representative of the person with the privacy rights.

2) Exigent circumstances. A legal dictionary defines exigent circumstances as

"Emergency conditions. 'Those circumstances that would cause a reasonable person to believe that entry (or other relevant prompt action) was necessary to prevent physical harm to the officers or other persons, the destruction of relevant evidence, the escape of a suspect, or some other consequence improperly frustrating legitimate law enforcement efforts."

Police and fire people use the exigent circumstance rule to enter houses. Examples are; a house is on fire and the firemen enter to put the fire out, There is a violent situation in a building and the police enter to safeguard life and possibly property. Most code officials will never find themselves in exigent circumstances. You might, as a code official, be asked to examine or inspect a building while the fire department has control of the building after a fire or explosion or other hazardous condition. That is proper and within the law.

3) With a search warrant. Although many of us use the term "Administrative Warrant," that term is not found within the law. However, courts have defined the use of warrants for such things as fire safety inspections. Generally, the burden of proof or the strength of the probable cause is less for an "Administrative Warrant" than a warrant used in a conventional criminal case.

So how do we resolve the apparent conflict between your local law which requires the inspection of multiple residences and the 4th amendment that states you can’t? Remember the definition of privacy rights. You can’t inspect where people have the reasonable expectation of privacy. That is the apartment (or one or two family house) itself. The courts have determined that other areas of the multiple residence do not have privacy rights. For example: the basement area, or storage area, laundry, etc. where all of the tenants can go into, are not private. Hallways can be used by anybody. Delivery people, meter readers, sales people, visitor and others all use the hallways. There is not a reasonable expectation of privacy in those areas. An attic space that is common to multiple apartments and can be reached by either a common area or multiple apartments has no privacy. All of these areas are subject to inspection. The exterior of apartment buildings can be inspected for violations of the Property Maintenance Code. I’ll discuss property maintenance inspection of one and two family houses later in this article.

The real intent of 1203 is to require the inspection of the above listed common areas where there is no expectation of privacy.

Before moving on to the rental unit inspections, lets discuss inspections of other occupancies. In stores, business offices, and places of assembly, there is no expectation of privacy. People go into stores and business offices. Even in back store rooms, delivery people sales people, and maybe even customers are present. The right of the people to be secure in their persons, houses, papers, and effects, are not present in the business(commercial) environment. Certainly, you cannot inspect the inside of a file cabinet or open desk drawers in an office, but you can look in the closet.

So what about rental unit inspections? How can this be accomplished? Some municipalities have a desire to perform rental unit inspections to raise the quality of housing units and increase the level of code compliance.

The only way to inspect rental units, without a violation of the tenant’s 4th amendment rights, is for the inspection to take place when the unit is vacant. Your municipality must pass a local law that requires all rental units to have a Certificate of Occupancy, Certificate of Compliance, Occupancy Permit, or some other document before it can be rented. After the local law is in place, when a rental unit is vacated, it needs to be inspected again before it is re-rented. Some apartments or houses may have inspections every few months. Others may go for years without an inspection. In the same local law, it may be wise to have a provision that requires a landlord or property owner, that lives out of state or at a distance, to have a local agent that can be served with the violation notices.

The executive law contains the following statement: "Nothing in the rules shall require or be construed to require regular, periodic inspections of owner-occupied one and two-family dwellings provided, however that this shall not be a limitation on inspections conducted at the invitation of the owner or where conditions on the premises threaten or present a hazard to public health, safety, or welfare."

The "owner" referenced in the above statement refers to the person with the "privacy rights." Remember, a person’s dwelling unit is his or her castle. That is true whether or not it is a home owned by the person or a rental unit.

You can still go into an apartment (dwelling unit) if you are invited into the unit by the tenant in response to a complaint or other situation.

Even a property owner cannot enter into a rented apartment without permission. When the tenant reports something not working that needs repair, the tenant is giving to landlord permission to enter. If the landlord is there to repair a leaky faucet, he certainly cannot go through the closets looking for anything of interest.

Recently, one property owner was arrested for trespass. The tenant had moved out, but still had the keys and the lease had not expired. The property owner entered into the apartment and determined that there was a large amount of rubbish and garbage present. The landlord called the code enforcement official who inspected the apartment and then cited the tenant. The tenant stated that he just moved out and had not had time to properly clean the apartment and dispose of the garbage. The landlord was arrested for trespass. I am fairly sure that only political pressure prevented the code enforcement officer from also being arrested.

Again, I want to stress that you cannot enter into a dwelling unit without permission, exigent circumstances, or a warrant. Permission must be given willingly and not coerced. A while back, a municipality ran articles in the local paper which announced the new rental property inspection law. The article stated that each renter MUST come to the town hall and fill out a permission slip so that their dwelling could be inspected. This type of "permission" is coerced and would not stand up in court as a defense against a trespass charge.

What about inspections that are done in the course of a building project? When a person is granted a building permit, a listing of the various inspections, that are required, should be given to the permitee. The permitee is giving you "implied" consent to enter upon the property to perform inspections. For an addition to a dwelling unit, I would not go into the unit if nobody is there unless previous arrangements have been made. The "implied consent" can be withdrawn at ay time. If however, you are asked to leave and not perform the required construction inspections, I would immediately suspend the building permit.

The last item I want to discuss is the inspection of one and two family homes. Even though they are not subject to period fire safety inspections as outlined in the Executive Law, they are subject to the provisions of the property maintenance code. How much can you inspect? Generally, the courts have held that anything you can see from public property is fair game. You can generally walk up to the front door of a house and knock on the door. If there is a large picture window and from a public way you can see that the ceiling has fallen down because of some problem, you can use that as evidence. You cannot, however, walk around to the back of the property and look at the back of the house. You are trespassing and are subject to arrest. Courts have determined that there is a reasonable expectation of privacy when you are out of public view.

As an example, a few years ago, a code official got a report that somebody was adding a porch to the back of the house. He visited the property, walked around to the back of the house, and saw the porch being constructed. He went back to his office and prepared an appearance ticket. The owner was taken to court and found guilty of building without a permit and was fined. The code official was later arrested for trespass. The original conviction was appealed and was overturned based upon an illegal search. It cost the town around $25,000 in fines and fees.

If the code official had gone onto the neighbor’s property(with the neighbors’ permission) and viewed the porch, he would have been ok.

If somebody makes a complaint about a property maintenance issue and you cannot get permission from the owner or the neighbor to inspect, then you may apply for a search warrant. Remember the 4th amendment, "and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation?" If the person making the complaint is willing to swear before the judge or sign a deposition, then that is grounds for applying and being granted a warrant.

As with any legal issue, if you have any doubts, you should consult your municipal attorney.

 

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