Richardson Rental Inspections

We may add a FAQ or Q&A section.  
Please feel free to leave any comments.

Join Us!
  • Home
    • Re-Inspection Fees
    • Intrusive Inspection
    • History
    • Why do Renters Refuse?
    • Our Properties
    • Owner-Occupied Home
  • Prosecution
    • Administrative Warrant
  • Our Proposal
  • Garland Case
  • Litigation
    • Institute for Justice
  • Renters
    • Rental Map
  • Homeowners
  • Blog
  • Contact Us

The City's Response to Landlord's Appeal

7/17/2013

3 Comments

 
The convicted landlord's appeal case is moving at a dinosaur pace.  After asking for a month extension, the city attorney filed the brief below.

-Obviously, the city attorney doesn't think renters have the same constitutional rights as non-renters.

The city attorney argues that the warrant is irrelevant, despite the fact that the city went to the trouble of adding it during the November 2011 ordinance update in order to make the ordinance "arguably" constitutional, and it is, in fact, the city's only specific remedy if the tenant says no to inspection.  The city wants to have it both ways: it wants to have a constitutional ordinance, but then ignores the ordinance in carrying out its inspections.

-For some reason, to clarify the definition of "make the property available," the city attorney goes on and on about the conditions the inspectors look for at every rental property.  

The city attorney keeps blaming the landlord for not walking across the street to her rental after she scheduled an inspection within the prescribed time frame.  (Her tenant was aware of the scheduled inspection and chose not to let the inspector inside HIS HOME.)  If "making the property available" means for the landlord to be at present at the rental, why doesn't the city attorney say so in the ordinance to be absolutely clear?  They might as well add "In case of the occupant's refusal, the landlord SHALL VIOLATE THE TENANT'S CONSTITUTIONAL RIGHT AND FORCE ENTRY BY THE CITY INSPECTOR into the occupant's home."  

BTW, most of us landlords don't live across from our rentals, so we're off the hook, right?

-The city attorney also argues that the convicted landlord needed to produce her lease to prove that that she couldn't require her tenant to allow the inspection.  Nothing in any lease overrides the US Constitution, which gives tenants the right to reject inspection.  Nevertheless, the leases some of us use do not allow entry into our rentals by government or any inspectors.  

3 Comments
Robert Steele
7/29/2013 03:56:27 pm

As a Richardson Landlord and Constitutionalist I am apposed to the Richardson Rental Registration Program.

That said, the leases with my tenants are the standard Texas Association of Realtor leases. They state that I can enter the property, even without notice, at a reasonable time in order to allow access to an inspector.

The Tenant has the right of Possession. They also have their 4th Amendment right. I have contract law. If they don't follow the lease agreement they are in breach of lease and I can evict them. After they are evicted I can then allow an inspection by the City. Unless of course I then occupy it and it becomes an owner-occupied home and thus exempt.

My guess is that this is why the City attorney want's to see the lease to see if it contains this language within it. If so, that means we as Landlords must evict out Tenants (if they exercise their 4th Amendment right) in order to comply with the City ordinance or we ourselves will be convicted as criminals.

I find this all quite offensive and somewhat worrying.

Reply
Admin.
7/30/2013 02:40:07 am

Robert, thanks for your comment.

The problem is that evicting tenants for a reason other than non-paying rents is not easy. The JP court will probably look at it as retaliation for your tenant refusing inspections, which is prohibited by the TX Property Code.

Sec. 92.331. RETALIATION BY LANDLORD. (a) A landlord may not retaliate against a tenant by taking an action described by Subsection (b) because the tenant:

(1) in good faith exercises or attempts to exercise against a land lord a right or remedy granted to the tenant by lease, municipal ordinance, or federal or state statute;

In fact, one landlord tried to evict her tenant when he refused city inspections. We intervened and stopped her. He is a good tenant. If he sued her, we're positive she would have lost. So in order to comply with the city ordinance, she would have violated the TX Property Code.

Some council members say "You use the standard lease, right?" They (including city staff) don't understand that there's NO SUCH THING as the standard lease. You have to be a realtor to use TAR's lease and you have to be a TAA member to use TAA's lease. I'd say the majority of SFH landlords are neither.

Reply
David
7/30/2013 02:43:07 am

No lease can override the tenant's constitutional right to bar inspections under the 4th Amendment. See below for Camara vs Municipal Court specifically.

IV
In this case, appellant has been charged with a crime for his refusal to permit housing inspectors to enter his leasehold without a warrant. There was no emergency demanding immediate access; in fact, the inspectors made three trips to the building in an attempt to obtain appellant's consent to search. Yet no warrant was obtained, and thus appellant was unable to verify either the need for or the appropriate limits of the inspection. No doubt, the inspectors entered the public portion of the building with the consent of the landlord, through the building's manager, but appellee does not contend that such consent was sufficient to authorize inspection of appellant's premises. Cf. Stoner v. California, 376 U. S. 483; Chapman v. United States, 365 U. S. 610;McDonald v. United States, 335 U. S. 451. Assuming the facts to be as the parties have alleged, we therefore conclude that appellant had a constitutional right to insist that the inspectors obtain a warrant to search and that appellant may not constitutionally be convicted for refusing to consent to the inspection. It appears from the opinion of the District Court of Appeal that, under these circumstances, a writ of prohibition will issue to the criminal court under California law.

The judgment is vacated, and the case is remanded for further proceedings not inconsistent with this opinion.

Reply

Your comment will be posted after it is approved.


Leave a Reply.

    Author

    Write something about yourself. No need to be fancy, just an overview.

    Archives

    August 2013
    July 2013
    June 2013
    May 2013
    April 2013
    March 2013
    February 2013
    January 2013
    December 2012

    Categories

    All

    RSS Feed


Powered by Create your own unique website with customizable templates.