‘Putting your home on the market should not mean mortgaging your constitutional rights’
Real estate agents in Santa Barbara, California, are suing their city over a law that gives city inspectors full access to homes, arguing it violates the U.S. Constitution’s Fourth Amendment privacy protections.
“Santa Barbara singles out home sellers and coerces them into giving up their vital Fourth Amendment privacy protections,” said Meriem Hubbard, a senior attorney for the Pacific Legal Foundation.
“They’re pressured to allow city agents to roam through their living rooms, kitchens, bedrooms, closets and attics without any evidence that the house has any problems,” he said. “Putting your home on the market should not mean mortgaging your constitutional rights.”
Hubbard said Santa Barbara’s “targeting of home sellers for searches and snooping must end, and the unconstitutional law that sanctions it must be struck down.”
The Fourth Amendment protects citizens against unreasonable searches and seizures. It’s why police must have a warrant or other legal adjudication to enter a residence.
But in Santa Barbara, the city law “requires home sellers to apply for a zoning inspection report and pay a $475 fee for the inspection process within five days of a sale agreement.”
“The inspections are open-ended, covering a variety of city codes – even though the Zoning Department staffers who conduct them aren’t licensed as building inspectors or surveyors,” the legal team argued.
They are asking for a court order ending the city’s ordinance regarding “unwarranted and coercive administrative searches of residential properties by city personnel as a condition of sale,” a declaration such a requirement in unconstitutional and the costs of the lawsuit.
Pacific Legal asserts Santa Barbara’s ordinance strips home sellers of their constitutional rights.
“The city’s Zoning Information Report ordinance effectively requires an interior and exterior inspection of any home put on the market – even though there is no legal reason to single out these homes for investigations,” the lawyers explained.
“Although the city claims sellers may decline searches, they risk penalties if they do so. Under the ordinance, any seller who fails to pay the inspection fee and allow the government agents inside can be convicted of a misdemeanor and fined up to $500.”
The plaintiffs include members of the Santa Barbara Association of Realtors.
The foundation pointed out that the city recently started allowing sellers to opt out of the searches while still paying for an exterior inspection.
Hubbard, however, called it “an illusory change.”
“Sellers are still coerced into allowing city searches. Although they can technically refuse an inspection, the city notifies the buyer if they do so. And the ordinance remains unchanged. It still provides for criminally prosecuting and fining people who sell their homes without allowing the government inspectors in.”
A spokesman for the realtors, David Kim said the Santa Barbara Association of Realtors “has attempted to work with city officials for years on Zoning Information Report concerns, but the flawed ordinance remains unchanged.”
“We filed suit to protect the constitutional rights of the people of Santa Barbara,” he said.
A spokeswoman for Santa Barbara did not respond to a WND request for comment.
The complaint states that it is a challenge to the “ordinance as-applied and on its face because it imposes unconstitutional conditions on the Fourth Amendment right of homeowners to be free from unreasonable searches.”
“According to the city …. the ZIR inspection is required, and includes the interior of all residential units and accessory structures (e.g., garages, sheds, studios), as well as the entire grounds of a seller’s residence. Access must be available to all buildings/structures at the time of the scheduled inspection.”
The ordinance doesn’t allow it, but if a homeowner declines to allow the inspection, city employees report to possible buyers they “cannot confirm if any other violations exist.”
“Whether or not the city inspector conducts an interior home inspection, the seller must apply for a ZIR and pay the corresponding ZIR fee within five days.”
But, the complaint explains city and city council members “have a clear, present, and ministerial duty to comply with the United States Constitution, which prohibits state officers from requiring property owners to sacrifice the Fourth Amendment right against unreasonable searches as a condition of selling their property.”