The City of Hayward, California, was concerned that residential rentals within its borders were "decent, safe, and sanitary," and by ordinance required the owners or tenants of such units to allow city officials to inspect them. If an owner or tenant refused, the "Enforcement Official" was authorized to procure an "inspection warrant" and levy a monetary fine on the property owner.
An association of rental owners sought a writ of mandate, challenging the ordinance because it violated the Fourth Amendment, among other reasons. The trial court granted the writ and held the ordinance facially invalid because it compels a property owner to provide access to a tenant's residence without tenant consent, and violates the substantive due process rights of the property owners because it levies a monetary penalty on a property owner even when the tenant is the one refusing to allow inspection.The court enjoined enforcement of the ordinance.
The city then amended it to require the owner to make a "good faith effort to obtain the consent of the tenant" for an inspection, and asked to discharge the writ (welcome to California practice) because the amendment addressed the court's problems. Although it overruled most of the property owners' objections, the court agreed that the requirements that a property owner in good faith seek the tenant's permission and be present at the inspection made the property owner an "involuntary agent" of the government, and that the fines made an owner responsible for the inaction of a tenant.
The Court of Appeal reversed. In Rental Housing Owners Ass'n of Southern Alameda County, Inc. v. City of Hayward, No. A128168 (Sep. 30, 2011) (published Oct. 25, 2011), the court concluded that the city's ordinance is not facially invalid. The court held that property owners were not forced to be agents of the government, since under California law an agency relationship is created only with mutual assent, and the "good faith" requirement did not result in any kind of agreement between the owners and the government. Slip op. at 9-10.
Nor did the good faith requirement violate the Fourth Amendment. Property owners do not have standing to assert a tenant's rights against unreasonable searches and seizures, and in any event, the ordinance does not allow the city to enter a residence without either consent or a warrant. The court also rejected the contention that the ordinance conflicted with the landlord-tenant code, a state law establishing the conditions under which a property owner may enter leased premises to inspect and repair. The court concluded that the ordinance only set the terms by which the city inspector could enter a residence, and does not affect a landlord's.Slip op. at 10-11.
Finally, the court rejected the substantive due process argument. The property owners asserted that the fine provision lacked a "conditional nexus between a recalcitrant tenant's non-cooperation and a consequential monetary sanction against the owner." Slip op. at 13. Because the ordinance does not contemplate fining an owner for a tenant's refusal to allow inspection in every case ("or even in a vast majority of cases"), a facial challenge could not be sustained. Slip op. at 13. In other words, because there may be some circumstances where the owner could not be fined, or there may be situations where the city may not choose to impose it, the ordinance was not facially invalid. The court did not mention the possibility that the fine provisions could be challenged "as applied" to a particular circumstance in a future case, although it did not mention that.
Rental Housing Owners Ass'n of Southern Alameda County, Inc. v. City of Hayward, No. A128168 (Sep. 30, 2011...
