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Municipal Inspections and the Fourth Amendment

by Robert S. Kutner, Esq. Partner, Casner & Edwards | Apr 28, 2014
Some Massachusetts cities and towns have adopted a new tactic to raise revenue, namely to identify work performed on a property without required permits. The work also may violate provisions of the state building code. If the lack of a permit is identified when a property is under agreement, the need to deal with that issue or to correct substandard work may delay or scuttle a sale.
One method for implementing that tactic has been to have the municipal property assessor or building inspector accompany a representative of the fire department when the fire department inspects a property for the presence of smoke detectors or carbon monoxide detectors. The issue is significant for REALTORS® because the seller may not be present for the inspection, but the fire department visit may be handled by the listing broker. The decision the broker needs to be prepared to make is whether to allow entry by someone other than the fire department representative.

Basic Principles

The seller’s right to refuse entry by a municipal representative, other than a fire  department official, depends on one of the basic principles upon which this country was founded. According to the Fourth Amendment of the United States Constitution every person is protected against an “unreasonable searches and seizures.” That
Amendment states:
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.
Cases dealing with this issue have been resolved by determining that homeowners have a constitutional right to refuse entry to an assessor or building inspector. The Constitution gives the same right to the seller’s real estate broker. Inspection for the presence of smoke detectors is generally considered to be reasonable and a necessary exercise of the authority of the fire department to protect the health and safety of the public.

Smoke detector inspections are required by Massachusetts General Laws Chapter 148, Sections 26E, 26F. Chapter 26F authorizes enforcement by the head of the fire department:
All buildings or structures occupied in whole or in part for residential purposes and not regulated by sections twenty-six A, twenty-six B or twenty-six C shall, upon the sale or transfer of such building or structure, be equipped by the seller with approved smoke detectors as provided in  section twenty-six E. The head of the fire department shall enforce the
provisions of this section.

In 1967 the United States Supreme Court addressed this issue and confirmed the right to refuse non-emergency inspections. In Camara v. Municipal Court of San Francisco, the Court ruled that a San Francisco housing ordinance which allowed warrantless inspections in non-emergency situations was unconstitutional and upheld the right of tenants to refuse an inspection. The Court held that the Fourth Amendment bars prosecution of a person who has refused to permit a warrantless code enforcement inspection of his personal residence. It reasoned that the basic purpose of the Fourth
Amendment, which is enforceable against the States through the Fourteenth  amendment, is to prohibit “unreasonable” searches and seizures are to safeguard the
privacy and security of individuals against arbitrary invasions by governmental officials. After identifying certain carefully defined exceptions, the Court concluded that an unconsented warrantless search of private property is “unreasonable.”

Consent to Inspect

There is no Massachusetts statute or regulation that establishes an administrative procedure requiring that an assessor be permitted to inspect the interior of a home, whether for the purpose of evaluating the condition of the interior to assist in valuing the property or to look for a building code or building permit issue. There is one noteworthy variation to this rule. If a homeowner has applied for an abatement, seeking to challenge the assessed value of the property, Massachusetts law, General Laws Chapter 59, Section 61A, provides that:

Section 61A. A person applying for an abatement of a tax on real estate or personal property shall, upon request, exhibit to the assessors the property to which the  application for abatement relates and if required by said assessors, shall exhibit and identify such property, . . . Failure of the applicant to comply with the provisions of this section within thirty days after such request shall bar him from any statutory appeal under this chapter unless the applicant was unable to comply with such request for reasons beyond his control or unless he attempted to comply in good faith.

In other words, if an application for an abatement has been filed, the homeowner may
still refuse entry to the assessor, but that refusal will provide a basis to deny the application for an abatement. In Giurleo v. Appellate Tax Board of Raynham, 72 Mass.App.Ct. 1113 (2008), the Appeals Court upheld dismissal of the homeowner’s appeal to the Appellate Tax Board that had denied an abatement application because the property owner refused entry for an inspection.

Consent to an inspection may be given verbally or in writing. It may be implied. If a real estate broker who is in control of the property allows the assessor to walk into the home, most courts will conclude that consent was given. However, if a Massachusetts
homeowner is threatened that the inspector (or a police officer) will get a search warrant, the threat is considered to be coercive and will likely negate the homeowner’s
consent. Attorneys in several other states have reported that if the assessor enters the property without permission of the homeowner, homeowners have called the police to have the assessor arrested for trespassing. Rarely, however, will the prosecutor pursue charges against the government official.

Not all state’s laws are consistent with Massachusetts. For example, there is a NH law that permits an assessor to obtain an “administrative inspection warrant,” a procedure that permits the assessor to enter a property. The facts needed to obtaining a warrant could provide a reasonable basis for an inspection, according to the U.S. District Court for the District of New Hampshire in Smith v. Ayotte, 356 F.2d 9 (2005). However, the mere financial interest of a town is unlikely to be sufficient to justify issuing a warrant.

The bottom line is that if a Massachusetts Realtor® is present for a smoke detector inspection and is faced with the question of whether to allow entry by a municipal representative other than from the fire department, the Realtor® should consult with the sellers. The sellers are within their rights to limit entry to the fire department representative. A Realtor® should ask for verification of the person’s identity and affiliation with the fire department, and, depending upon the seller’s instructions, may refuse entry.