Renters’ Rights:

John Kramer
John Kramer · September 9, 2005

Washington, D.C.—Residents of Marietta, Ga., who rent their homes face a stark dilemma for doing so—warrantless inspections or potential eviction.

The City of Marietta enacted an ordinance requiring landlords to obtain “rental licenses” for all rental properties. To obtain a license, landlords must, among other onerous steps, hire and pay City-approved “rental housing inspectors” to inspect and certify the properties are in compliance with code. Nothing in the ordinance, however, requires the landlord or the City to obtain the tenant’s consent before inspection. Yet, without inspection, no rental license can be issued, and the City Manager may order the rental property to be vacated. Residents who exercise their constitutional right to refuse a warrantless inspection therefore risk potential eviction. To vindicate renters’ rights, the Institute for Justice is challenging the ordinance under the U.S. and Georgia constitutions. The Honorable J. Stephen Schuster will hear the Institute’s challenges on September 9 at 9:30 a.m. in the Superior Court of Cobb County, located at 31 Wadell Street in Marietta.

Contrary to the Mayor’s and City Council members’ apparent misconception, Marietta tenants enjoy the same constitutional rights as Marietta homeowners, including the right to be free from unreasonable searches.

“The inspections mandated by the ordinance are quite intrusive,” says Clark Neily, a senior attorney at the Institute for Justice, which filed the lawsuit. “Inspectors can look inside every room of the home, as well as closets, cabinets, under sinks and all around the exterior of the home.”

Searching people’s homes—whether they own or rent them—without consent or a valid search warrant violates their right to be free from unreasonable searches under the Georgia and U.S. constitutions. Article I, Section I, Paragraph 13 of the Georgia Constitution provides that “[t]he right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures shall not be violated.” The Fourth Amendment of the U.S. Constitution reads, “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.”

To enter a person’s home without consent, the Fourth Amendment generally requires a government official to obtain a valid search warrant issued by a judge and based on some reasonable suspicion (“probable cause”) of a violation of law. For more than a century and a half, these strict requirements served as an ironclad protection against blanket and arbitrary searches of private property by government officials.

“The City of Marietta cannot escape Fourth Amendment requirements by conscripting private citizens (landlords and building inspectors) to do what it lacks constitutional authority to do itself,” said Neily. “By penalizing renters who refuse warrentless searches with possible eviction, the City of Marietta has effectively taken away renters’ Fourth Amendment rights.”

The Georgia Association for Apartment Justice and a group of Marietta landlords have also filed lawsuits challenging the ordinance on statutory grounds. Both argue that the Marietta ordinance conflicts with a Georgia statute specifically designed to prevent local governments from passing laws like Marietta’s Inspection Ordinance. The statute states, “[n]o local government is authorized to perform investigations or inspections of rental property unless there is probable cause to believe there is or has been a violation . . . of applicable codes.” It also provides that “in no event may a local government require the registration of residential rental property.”

In May 2004, the Superior Court of Cobb County issued a temporary restraining order preventing any further inspections. That order has remained in effect. All three cases have been consolidated for ease of administration and are now pending before the Honorable J. Stephen Schuster.

The Institute for Justice is a nonprofit Washington, D.C.-based public interest law firm that successfully challenged unwarranted administrative searches in Park Forest, Ill. Through strategic litigation, training, communication and outreach, the Institute for Justice advances a rule of law under which individuals can control their destinies as free and responsible members of society. IJ litigates to secure economic liberty, school choice, private property rights, freedom of speech and other vital individual liberties and to restore constitutional limits on the power of government. The Institute was founded in September 1991.