What kind of a vacant building can an inspector enter without an administrative search warrant? It really depends on the facts of each case. Just because a building is vacant doesn’t mean that it is abandoned. A vacant building that is secure demonstrates the owner’s reasonable expectation of privacy. If a building is open to the elements where critters and neighborhood children enter at will, the owner may have no reasonable expectation of privacy, especially if he or she has left for parts unknown. Each case has to be evaluated on its own merits. If you’re having trouble deciding whether the owner still has a reasonable expectation of privacy inside the structure, it probably indicates you should get an administrative search warrant for an inspection. At the very least, an inspector should check with local counsel.
Sometimes a local jurisdiction ends up getting in trouble for denying a permit though it had honorable intentions. In Vineyard Investments LLC v. City of Madison, 999 So.2d 438(2009), the city denied an application for a building permit because there was concern that the premises would be used for an unlawful use. The plaintiff did not have a license for its intended use, a package retail wine and spirits store though it eventually received one. The application complied with all building and zoning requirements. However, as is often the case, the concern about a future unlawful use was based on speculation, not facts. The court ruled that the permit should have been issued. The lesson to be learned from this is that you can’t deny a permit because you are afraid there might be a violation of the code in the future. If the application meets the code, the permit should be issued. The city can then monitor the use to make sure it remains lawful.
At the airport in San Francisco yesterday while waiting for my flight, I read this in the San Francisco Chronicle:
The Bay Area reached a peak median sales price of $720,000 in spring 2007. In February, the median was $295,000. http://www.sfgate.com/cgi-bin/article.cgi?f=/c/a/2009/03/29/MN3K16M9RT.DTL&hw=median+house+values&sn=001&sc=1000
The article went on to discuss how buyers, especially investors are now moving in to purchase these “bargain” properties. Some are doing it to rent them and others are doing it to flip them. I wonder how many of these new buyers are getting the right permits for the work they are doing or properly registering the rentals in those jurisdictions where it’s mandatory? I suspect we’ll be seeing those kinds of issues crop up for a long time.
I wish I could say this is rare but I prosecuted a case where a woman had over 100 dogs in her house. Here’s the article that describes what happened while I was at the Region III conference in Minneapolis. The attendees were showing me the story in the Star Tribune:
http://www.startribune.com/local/north/39409892.html?elr=KArksLckD8EQDUoaEyqyP4O:DW3ckUiD3aPc:_Yyc:aUac8HEaDiaMDCinchO7DU
Thank heaven most of these uninhabitable houses don’t involve innocent animals, just trash and garbage. These are very difficult cases to prosecute because many of the people do suffer from some type of mental illness, like obsessive/compulsive disorder or hoarding. They admit they’re guilty but the real problem is getting compliance. The times when I’ve had success is when the person likes the inspector assigned to the case, the court orders compliance, and the inspector monitors the cleanup on a weekly or monthly basis, constantly setting goals for the next inspection. I think by breaking down the cleanup task, it helps the defendant not feel so overwhelmed. Because there is a court order, the defendant feels some pressure to work with the inspector. If the offender is not cooperative, the inspector condemns the property as unfit for human habitation and then issues tickets for the violations and for remaining in a condemned property. It’s a very sorry situation, especially if children or animals are involved. If there are children, child protective services have to be called by the inspector. Animal rescue groups will assist with removing animals.
I’m back from my trip to Minnesota which was a wonderful opportunity to speak with inspectors who are really concerned about the foreclosure issues facing all of us. Up there, they’ve even coined a term for vacant houses where the pipes burst after a thaw, “ice houses”. I’ve seen my own share of them in the Chicago suburbs. Typically what’s happening is that the house goes into foreclosure, the owners move out without getting the water shut off, the pipes freeze and then burst during a thaw. Mold is the next problem. Sometimes the mold growth becomes so bad, demolition is the only option. One way we’ve found out about these buildings is by noticing a tremendous use in water over a very short period of time. We then try to contact someone at the lender who is responsive (with mixed results) or else obtain an administrative search warrant to get in. Awhile back I spoke at an ICC symposium on property maintenance and heard a speaker from Cincinnati describe its vacant building registry. This ordinance applies to buildings that have been ordered vacated by the City because they are unsafe or unsanitary. You can find out more information at http://www.cincinnati-oh.gov/cdap/pages/-34608-/ We have a different problem by us. In Hinsdale, Illinois, for example, we were seeing more buildings remain vacant after being purchased for “teardowns”. The market for new construction is pretty slow so the old houses sit. We experienced people breaking in and stealing anything they could from them. We’ve caught teens partying inside them also. I proposed passing a vacant building registry ordinance so we could get contact information, charge a sufficient fee to monitor the program, and alert the police and the fire department that the buildings were unoccupied. Hinsdale’s has recently gone into effect and I’m prosecuting my first violation for failure to register. It’s not available online yet but I’ll post it when it does. Already the police have told me they like having the information pop up on their in-car computers when they arrive on a call at the location. I’m interested in finding other towns who are happy with their registries so let me know of you work in one of them.
I’m in Brooklyn Park, MN teaching at the Region III Institute sponsored by the Association of Minnesota Building Officials. It’s always a well attended week long event and the hospitality is warm and friendly. (However, last time I taught at the Institute it was 20 below zero. It’s 50 degrees warmer today.) I’ll be teaching two courses, Legal Aspects of Code Administration and Advanced Legal Aspects for Property Maintenance Inspectors. At dinner tonight it was interesting hearing what folks in other parts of the country are experiencing regarding the economic downturn. Inspectors are now seeing a decline in commercial projects as well as residential. Most new construction is stagnant (except in Fargo, N.D. which is doing pretty well so far). Property maintenance is on everyone’s mind. No one thinks this slow down will be over with soon. I’ve noticed that even building officials are talking about property maintenance issues. Cross-training is becoming important so building inspectors can do property maintenance inspections in order to justify keeping those positions in the budget. I’ve been encouraging my clients to enact vacant building registry ordinances so that the police and fire departments know which buildings are empty and the code department has information on how many vacant buildings exist in a municipality. I think it’s critical to have contact information on responsible parties for these buildings so when weeds get too high or the pipes burst and mold starts growing, the inspectors know who to call. In my property maintenance class, I try to address these issues.
