Pasco v. Shaw

There was a ruling recently by the Washington State Supreme Court, Pasco v. Shaw (.pdf), that centered around the question of whether it was a violation of both your right to privacy and to be free from unwarranted search and seizure to be forced to allow your home, which has been rented, to be searched by your landlord and/or someone he has chosen to inspect the premises.

 

Specifically, the city of Pasco, Washington, passed Pasco Ordinance 3231 which requires landlords to submit certification every two years ensuring that their rental units meet all applicable health, safety, and building code requirements. The certification must be signed by a city enforcement officer, a certified private inspector, or a Washington licensed private structural engineer or architect. The city passed this ordinance to help protect renters from landlords who were basically slumlords. It appears city officials felt they were facing a problem with building owners who allowed people to occupy unsafe units. To compel these businesses to bring their buildings up to a minimum safety standard, they passed this ordinance which requires a biannual building safety inspection.

 

Quoting from the court transcripts:

The ordinance provides that a landlord must obtain a current business license. As a condition for the issuance of a license, the landlord must provide a certificate of inspection ensuring that:the applicant's rental dwelling units comply with the standards of the Uniform Housing Code and do not present conditions that endanger or impair the health or safety of a tenant including:

(1) structural members that are insufficient in size or strength to carry imposed loads with safety;

(2) exposure of the occupants to the weather;

(3) plumbing and sanitation defects that directly expose the occupants to the risk of illness or injury;

(4) lack of water, including hot water;

(5) heating or ventilation systems that are not functional or are hazardous;

(6) defective, hazardous, or missing electrical wiring or electrical service;

(7) defective or inadequate exits that increase the risk of injury to occupants;

(8) violations that increase the risk of fire; or

(9) violations of other applicable codes, rules or regulations.

Leaving aside the argument about whether cities should rightfully require businesses to get licenses to operate within city limits, the city of Pasco placed upon rental businesses within its jurisdiction the requirement to meet building codes every two years to renew their business licenses. This is no different than the city fire marshal coming around to your business to make sure your fire extinguishers are up to date, your fire exits are clear, etc. If the marshal finds an infraction, guess what? You don't get to renew your occupancy permit until you remedy the infractions.

 

Continuing again with a quote from the transcript:

Landlords must provide a certificate of inspection during a preassigned three-month period every two years. The certificate must be based on the physical inspection of the dwelling not more than 90 days before the date of the certificate. Compliance must be certified by one of the following:

(1) a City of Pasco Code Enforcement Officer;

(2) inspectors certified by the United States Department of Housing and Urban Development for grant-required inspections;

(3) certified private inspectors approved by the City upon evidence of completion of formal training . . . ;

(4) a Washington licensed structural engineer;

(5) a Washington licensed architect;

The city knew that they would be treading on thin ice if they required the landlord's biannual inspections be performed only by the city code enforcement officers, so they allowed other qualified inspectors to perform this task. Furthermore, they did not place a requirement on whomever performed the inspections to notify the city if they found an infraction. This allowed the building owner a chance to remedy the problem without involving the city. If everything was up to standards, the landlord would get his certification and would be allowed to renew his business license.

 

The Supreme Court noted that the city, in fact, created no new requirements upon landlords or tenants as far as requiring inspections for certification. They only changed the time interval. Landlords have always had the right to enter into rented units, provided he met a few enumerated requirements. Citing RCW 59.18.150 (1):

(1) The tenant shall not unreasonably withhold consent to the landlord to enter into the dwelling unit in order to inspect the premises, make necessary or agreed repairs, alterations, or improvements, supply necessary or agreed services, or exhibit the dwelling unit to prospective or actual purchasers, mortgagees, tenants, workers, or contractors.

It has been long standing law in this state, under the Residential landlord-tenant act of 1973, that landlords have a right to enter into a rented unit. He must, however, provide adequate prior notice to the tenant before entering and enter only at a reasonable time:

(5) The landlord shall not abuse the right of access or use it to harass the tenant. Except in the case of emergency or if it is impracticable to do so, the landlord shall give the tenant at least two days' notice of his or her intent to enter and shall enter only at reasonable times. The tenant shall not unreasonably withhold consent to the landlord to enter the dwelling unit at a specified time where the landlord has given at least one day's notice of intent to enter to exhibit the dwelling unit to prospective or actual purchasers or tenants. A landlord shall not unreasonably interfere with a tenant's enjoyment of the rented dwelling unit by excessively exhibiting the dwelling unit.

As you can plainly see, landlords have had the right under law to enter into a rented unit with proper notice. It is, after all, their property. They have a right to make sure their property is not being destroyed either by those paying to use it or by time and the elements. Think of it like this: in many of the Eastern states, they are required to submit to vehicle safety inspections once a year before they can renew the tags. The vehicle inspector has the right to inspect the exterior of the vehicle and only those places inside the vehicle that fall within the scope of his safety inspection. He does not have the right to rifle through your dufflebag in the back seat. Likewise, the building owner has a right to inspect or to have his building inspected by someone he hires. He does not have a right to search through his tenants personal belongings. Recognizing this need, the Residential landlord-tenant act was passed to make it clear what each others rights were.

 

This case is clearly addressed by RCW 59.18.150. Quite frankly, I'm surprised it was allowed to go as far as it did. The court, I feel, correctly summarized this case when it said:

We also note that RCW 59.18.150(1) already provides that a tenant cannot unreasonably withhold consent to the landlord to enter into the rental unit in order to inspect the premises, and the act allows some third parties to accompany the landlord upon entrance. In Kalmas v. Wagner, 133 Wn.2d 210, 219-20, 943 P.2d 1369 (1997), this court reasoned that if the scope of a landlord's entrance does not exceed the legitimate purposes contemplated by the Residential Landlord-Tenant Act of 1973 (RLTA), no unreasonable search has occurred. Of course, the RLTA provides some limitations to landlord entry. A landlord, accompanied by his or her chosen inspector, cannot enter without at least two days' notice to the tenant, and they must enter at a reasonable time. RCW 59.18.150(5). In addition, the inspection necessary to fulfill the requirements of the Pasco ordinance is limited to a survey for the ordinance's habitability requirements. Neither landlords nor their privately engaged inspectors are permitted to search a tenant's belongings or search for evidence of a crime. The ordinance contemplates no assistance to law enforcement in the form of uncovering any illegal acts on the part of tenants. See Swenson, 104 Wn. App. at 754. The inspection required by Pasco Ordinance 3231 does not exceed what is already allowed by the RLTA.

While I will be the first to admit our Washington Supreme Court Justices can be a little short-sighted when it comes to protecting the rights and civil liberties of Washingtonians, in this case I feel they got it spot-on.