December 31, 2012 Ignoring many valid objections, including the fact that it is unconstitutional and will hurt lower-income neighborhoods, the Boston City Council passed an ordinance first proposed by Mayor Thomas Menino that requires registration and inspection of most apartments in the city, including rented condominiums. It would apply to 140,000 units, exempting only owner-occupied one- to six-unit buildings.
The vote was 9 to 4, with Councilors Baker, Connolly, Linehan and Ross voting against it. Only a handful of cities in the country have enacted such inspection schemes. The new requirement goes into effect in April.
The new inspection program aims to make most rental units in Boston fully compliant with the state sanitary code, a goal that promises to raise rents or bankrupt owners, especially in lower-income neighborhoods where a large number of minor or cosmetic violations help keep rents lower.
The $2 million program will require at least 19 new inspectors, a government expansion in a time of tight budgets. The city expects to fund most of the inspection program from registration fees on units. A proposal to inspect only seriously deficient properties, so-called “problem properties,” was a much smaller but probably a much more important goal. It was rejected.
All owners of rental units that are not in owner-occupied one- to six-unit buildings must register with the city at a cost of $25 per unit for the initial registration and $15 per unit each year thereafter. Inspections will be performed once every five years for each apartment, with a focus on known, more seriously deficient buildings only during the first five-year cycle. Owners will have 30 days to repair all violations.
The city wants the owner’s name, personal address and phone number, along with the name, personal address and phone number of the president or trustee in the case of property owned by a trust, corporation or other legal entity. These same names, addresses and phone numbers must be posted on the mailbox at a property, including any managing agent. If owners live outside of Boston, they must have a Boston-based resident agent.
Any transfer of ownership must also be reported to the city within 30 days of closing.
The inspections are very bad housing policy and will tend to push many rents up. But worse yet, a crisis will hit lower-income neighborhoods where more serious code violations occur more often. Bringing lower-income apartments up to code will push rents up signifi­cantly on those tenants least able to afford them. And if small owners of the worst housing can’t marshal the financial resources to do a num­ber of major repairs in the 30-day time-limit allowed, housing will be pushed off the market and ultimately abandoned, tenants will be displaced, affordable housing will become less available, and city-owned properties will proliferate.
It is mind-boggling to propose a massive new system that will have this and other effects at a time when the economy is struggling and govern­ment expansion is questionable. It is also mind-boggling to deliberately threaten the housing in lower-in­come neighborhoods with rent in­creases when “affordable housing” is supposedly a constant goal. State law already authorizes five-year inspec­tions of common areas and exteriors for emergency lighting, blocked exits and structural problems, with authority to inspect interiors if serious violations inside units are suspected. Those in­spections, combined with the existing complaint-driven system, would be the most reasonable and most cost-effective approach to inspecting all rental housing. But a proposal by SPOA to this effect was turned down.
This program will also be a huge invasion of privacy, a huge intrusion of the government into the lives of tenants, who have every right to privacy in their homes. These blan­ket inspections violate the Fourth Amendment to the U.S. Constitu­tion and a similar protection in the Massachusetts Constitution against unreasonable searches and seizures. Tenants can object to inspections, but the city can easily get a so-called administrative search warrant to override the tenant’s objection.
Based on the habitability standards of the state sanitary code, the inspec­tions would allow inspectors to view evidence of tenants’ habits, religious practices, political beliefs, drug use and other personal information that can be gleaned from entering liv­ing rooms, kitchens, bedrooms and bathrooms.
The Fourth Amendment reads: “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.” Article 4 of the Massa­chusetts Constitution is almost iden­tical. The Founding Fathers were keenly aware and very disturbed by the blanket inspections ordered by the monarchy back in England.
In contrast to massive inspections of every unit, the present system for dealing with code violations is based on tenants complaining to the city about violations in their own units or in common areas or neighbors complaining. Specific tenant and neighbor complaints are a proper trigger for government inspection and are almost completely consistent with the Fourth Amendment because the complainers give “probable cause” that specific violations exist in specific units or specific properties. Probable cause is the requirement in the Fourth Amendment that a person under oath has good reasons to believe that a specific violation probably exists in a specific property.
The constitutionality of an in­spection program like Menino’s is already being challenged. Tenants in Red Wing, Minnesota, have joined with landlords in a lawsuit against that city and its blanket inspection system. The litigants are being repre­sented by the Institute for Justice, a national, libertarian, public-interest law firm that specializes in fighting state and municipal intrusions on civil liberties guaranteed by the Bill of Rights and the U.S. Constitution. (Institute for Justice attorney Clark Neily was the featured speaker at SPOA’s 25th Anniversary Party this last March.) The American Civil Liberties Union (ACLU), a surprise partner with the landlords and the tenants in the Red Wing case, is pre­senting an amicus brief in defense of the litigants’ rights. The whole case is under review by the Minnesota Su­preme Court.
Besides bringing all apartments up to code, Mayor Menino’s only rationale, given in a Boston Herald article announcing the proposed in­spections, is so-called “problem prop­erties,” a tiny fraction of the rental housing stock and far more an issue of criminal activity and nuisance tenant behavior than code violations. Of the 18 problem properties profiled on the city’s website at the time of this writing, most of them involved drug activity, gun activity, prostitu­tion, assault and loud parties with no mention of code violations; code violations were mentioned in only three properties. Criminal activity and nuisance behavior have nothing to do with the physical conditions of housing. There is no justification here for city-wide inspections for housing code violations. To view the list, go to www.cityofboston.gov/ mayor/problemproperties/list.asp. Moreover, there are no public complaints about widespread prob­lems with housing conditions. We live in a country with the highest standard of living in the world. The vast majority of apartments are in excellent-to-fairly-good condition. The vast majority of tenants are law-abiding and good citizens. The existing system works quite well, and to institute city-wide inspections on all these units is a waste of time and money.
The state sanitary code covers a wide range of violations, many of which are minor or merely cosmetic and not serious threats to public health or safety. For example, inspec­tors routinely cite cracks in surfaces, small holes in walls or screens, stains from old leaks and similar minor or cosmetic violations, which are the predominant type of violation in most housing. As one inspection of­ficial said, most violations of the state sanitary code are cosmetic.
Somewhat more serious violations, like screens with gaping holes or a non-functioning burner on a stove, are found only in a minority of prop­erties and are no immediate threat to health or safety. Really serious viola­tions, like no heat, a rotting porch in danger of collapse or garbage left in hallways, occur only in a tiny minor­ity of properties. Thus, there is no justification for sweeping, city-wide inspections.
Targeted inspections were an al­ternative to massive inspections. The Fourth Amendment requires a search warrant approved by a judge for any search or inspection, with a specific stated reason – a crime of some sort – and the warrant must state specifi­cally what is to be searched for and where the search is to take place. The mayor’s proposal has none of this.
Targeted inspections, on the other hand, are a way to come close to satisfying the Fourth Amendment and give government officials a way to deal with a larger number of properties with shared problems. Officials can seek a so-called administrative warrant that can and does state a reason, a “prob­able cause,” and states specifically what the inspections are searching for and where they are to take place.
Targeted inspections identify a specific problem – like drug activity, overcrowding, deteriorated housing or an area with a chronic history of serious code or other types of viola­tions – and they target inspections to a specific set of houses, most likely in a specific location or neighbor­hood in the city. Instead of wasting time on minor or cosmetic violations, targeted inspections can be limited to searching for specific violations of a serious nature, such as those described in some sections of the state sanitary code. In other words, they confine the inspections to code violations that seriously threaten health and safety, rather than any defect of any kind.
Other conditions can be attached to targeted inspections. In Menino’s proposal, only new owners are al­lowed extra time to bring seriously substandard properties up to code. This option should certainly apply to existing owners, instead of just pushing them out of business. And the extra time needs to be tailored to their financial resources and ten­ants’ incomes. A massive registration system, where all owners register their prop­erties with the city, as Menino’s pro­posal requires, would not be necessary.
A massive inspection system and even a targeted one would give ten­ants playing the free rent trick yet another weapon against landlords be­cause of the fines imposed for chronic code violations. The city should not institute any inspection program unless the free rent trick is stopped.