A class-action complaint filed this week in Seattle argues that the city’s mandatory rental inspection program, a proactive system meant to catch violations, violates constitutional rights to privacy.
The complaint, filed by lawyers from the public interest law firm Institute for Justice (IFJ) on Tuesday, argues the city’s Rental Registration and Inspection Ordinance violates the privacy enshrined in the U.S. and Washington constitutions, specifically Article I, § 7, which states that “No person shall be disturbed in his private affairs, or his home invaded, without authority of law.” Inspectors should be required to get a warrant or a tenant’s consent to enter a private residence.
Run through the city’s Department of Construction and Inspections (SDCI), the system cycles through the city’s entire rental stock every 10 years, checking units in all rental buildings at random. Inspectors in the program do not obtain warrants, or require a suspicion of wrongdoing or violations; they have the authority to enter and check for violations in at least 20 percent of the units in each building, using a 12-page checklist when examining rooms, and check out the rental property’s bathrooms, bedrooms, sinks, bathtub, and kitchens.
According to Dan Nolte, spokesman for the Seattle City Attorney’s Office, speaking on behalf of the SDCI, this was the first legal complaint the city has received about the issue since the law establishing the new inspection system was passed in 2012. While they haven’t fully processed the complaint, they plan to vigorously contest.
“We intend to defend this law meant to ensure the habitability of rental properties for Seattle’s tenants,” says Nolte.
Inspection or intrusion?
When Council Bill 117569 was passed unanimously by the City Council in 2012, with a 5-0 vote, it was hailed by council members as a way to improve the conditions in the city’s substandard housing and help renters, especially seniors. There was a fear that renters, afraid of losing their homes, would be reluctant to complaining about a landlord for fear of retribution. Both tenant groups and landlord groups had been consulted during multiple stakeholder meetings to craft the final regulations. The system went into effect beginning in 2015.
According to lawyers with the Institute for Justice, they began pursuing the lawsuit after landlords with tenants who were worried about their privacy being violated through this program reached out to them. Renters Matthew Bentley, Wesley Williams, and Joseph Briere—all plaintiffs in the suit—found out earlier this year that their units were being inspected and refused. Their landlords, Sarah Pynchon and William Shadboldt (board president of the Rental Housing Association of Washington, who has previously challenged Seattle housing laws), were put in the position of somehow having to coerce them to allow inspectors in or accrue an initial $150 fine, and a $500 fine for every additional day the inspectors were denied the opportunity to enter.
“A lot of landlords who didn’t wish to be sort of the instrumentality of the city’s violation of people’s constitutional rights,” says attorney William Maurer.
Initially, Seattle’s inspection system had an option for a private inspector who would examine the rental apartment and then tell the landlord that it failed. By not directly informing the city, the inspector wasn’t an agent of the government, or violating privacy, according to Maurer. However, the system has changed; now, the private inspectors report directly to the city if the unit passed or failed, constituting a state action and, according to the suit, a privacy violation.
Keena Bean, another plaintiff who joined the suit, feels that the city has dramatically overreached with the automatic inspection program.
The 28-year-old communications professional, who works at a Seattle startup and lives in Eastlake, hasn’t been directly impacted by the program. But when she heard about it from her landlord, John B. Heiderich, another plaintiff, she decided to join the lawsuit. She feels that the program violates her right to privacy; consider how an immigrant or religious minority may feel having a stranger working for their government enter their home without a warrant.
“This is also something only applicable to renters, and not property owners,” she says “It further and further degrades renters rights, and treats them differently than a property holder.”
Other cities have adopted similar laws
Seattle’s law is being challenged as more and more cities adopt similar, proactive programs to help improve rental inspections. Detroit and Syracuse, New York, have recently passed similar ordinances, both inspired by efforts to clean up substandard rental units and help tenants.
The plaintiffs feel these programs, though the goal is laudatory, should be less extreme, allowing renters to be able to ask for a government inspector, but retain the right to deny entry without a warrant. The issue of protecting tenant rights is a complicated one, and any program designed to solve it needs to be more nuanced, they argue. Maurer sees a slippery slope: If the city can conduct warrantless searches of property because of concerns about the housing code, why couldn’t they do it for private residences, or for violations of other kinds of code, such as the criminal code?
The Seattle inspection program has also been subject of complaints that it doesn’t go far enough. Landlords are given notice of inspections, for instance, not fined if violations are fixed, and only certain units in each building are inspected, which, as tenant advocates point out, ignores the fact that many common violations are rarely contained in a single unit.
The IFJ suit isn’t challenging the ability to have such a system, or to enter into a unit when they have suspicion of a problem. The issue is that, as it’s written now, the statue allows inspectors to enter a perfectly fine unit with no just cause; there’s no intervening presence of a judicial officer to judge if the city has a reason to enter someone’s home without their consent.
“I don’t want to take away the rights of the city to inspect the city,” says Bean. “You should have an opportunity to raise your hand and say ‘government inspector, come in and help me out.’ I don’t want that right taken away from others; I just want the right to say no.”