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Wednesday, January 25, 2006

Ind. Decisions - Supreme Court holds a city’s housing code is not unenforceable for failure to include an express warrant procedure

In City of Vincennes v. Kevin Emmons d/b/a Cherokee Rentals, Jeffrey Hendrixson and Eric Klein, Justice Boehm writes:

We hold that a city’s housing code is not unenforceable for failure to include an express warrant procedure in the event a landlord objects to an inspection. * * *

The City of Vincennes Rental Housing Code (“Code”) sets standards for residential rental units and provides for regulation and inspection of units.1 Kevin Emmons, Jeffery Hendrixson, and Eric Klein each own one or more residential rental properties in Vincennes and failed to pay the required annual registration fee of $18 per unit. The City brought civil actions against each of the landlords to collect unpaid registration fees. The cases were consolidated, and the con-solidated case was submitted to the court on stipulated facts. The landlords admitted that the Code called for payment of registration fees but contended that the entire Code was unconstitu-tional because its provision for inspection of rental units violated the Fourth Amendment to the United States Constitution as authorizing or requiring unreasonable searches.3 The trial court agreed and dismissed the City’s complaint. The Court of Appeals affirmed * * *

Conclusion. For the reasons already given, in most inspections no warrant is required due to tenant consent. If in a particular case, for example where the landlord occupies the premises, the federal or state constitution re-quires the City to seek a warrant to conduct an inspection without landlord consent, the City will need a warrant whether or not section 156.05(E) addresses that explicitly. But the ordinance is not invalid for failure to spell that out. Conclusion The judgment of the trial court dismissing the City’s civil action is reversed.

Dickson, Sullivan, and Rucker, JJ. concur.
Shepard, C.J., concurs with separate opinion.

We have been urged from time to time to impose a warranty of habitability on every Indiana residential lease as a matter of common law.

I think we have been wise to decline these invitations, believing that a housing market in which landlords and tenants are empowered to strike their own bargains as to quality and price of housing tends to produce a wider range of options, and that a market affected by judicial restriction of such bargaining likely produces less housing and raises prices for those in the lowest in-comes. See Johnson v. Scandia Assoc., 717 N.E.2d 24, 30 (Ind. 1999).

My assessment of this question has partly rested on the knowledge that most Indiana renters (as this case shows, even those in many smaller cities) are protected by the enactment and enforcement of local housing codes.

Amicus for the state’s apartment owners has asked us to prohibit regular inspection of rented housing. Indeed, they have urged us to hold that even when a tenant complains about a housing code violation (say, a fire safety threat), the city cannot investigate the threat without going to court for a warrant.

Of course, the Court has not embraced this position. Had we done so, the resultant bowdlerizing of local ordinances protecting renters would have suggested, to me at least, that the idea of recognizing a general implied warranty of habitability would bear revisiting.

Posted by Marcia Oddi on January 25, 2006 12:01 PM
Posted to Ind. Sup.Ct. Decisions