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Municipal Authority to Enter and Make Safe Dangerous Buildings

A recent decision of the federal U.S. Sixth Circuit Court of Appeals has reaffirmed the authority of municipalities to require owners of vacant property to register the property with the municipality and permit municipal entry and abatement if it becomes dangerous.  

At issue in Benjamin v Stemple, Case No. 18-1736, was a City of Saginaw ordinance requiring owners of vacant property to register the property with the city clerk and to agree that city personnel may enter and make safe the premises if it is found to be “dangerous.”  A number of property owners in the city challenged the ordinance as unconstitutional on Fourth Amendment search and seizure grounds.

In finding for the city, the Sixth Circuit stated that the property owners were not surrendering any Fourth Amendment rights in registering their properties.  While the Fourth Amendment generally protects a person’s right to be free from unreasonable warrantless searches and seizures, an exception applies which permits administrative searches designed to assure compliance with building codes, including codes intended to prevent buildings from becoming dangerous to tenants or neighbors.  However, the Court emphasized that the “administrative search” exception is narrowly applied; it is only valid when procedures are in place that permit property owners to challenge before a neutral decision maker a building official’s request to enter a property suspected of being dangerous.  Accordingly, municipalities must provide property owners with a hearing at which both parties may make testimony, call witnesses, introduce evidence, and conduct cross examination.  Because Saginaw’s vacant building registration form and ordinance did provide for such an administrative process, the Court found that the property owners were not forced to waive any Fourth Amendment rights.

This court decision will likely be considered hereafter as a fairly limited exception to constitutional search and seizure safeguards.


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