Daily Development for
Thursday, August 24, 1995

by: Patrick A. Randolph, Jr.
Professor of Law
UMKC School of Law

LANDLORD/TENANT; CONSTITUTIONAL LAW; DUE PROCESS: Tenants' consent to inspections of common areas by municipal authorities can override a landlord's prior objection to such inspections. Cranwell v. Mesec, 890 P.2d 491 (Wash. App. 1995). City relied upon tenant consent to inspect the common areas of two apartment buildings even though the apartment building owners had previously refused the city consent in writing.

The court noted that the Washington Supreme Court has already held that a tenant may consent to common area inspections because a tenant has the requisite common authority over the common areas to consent to such an inspection. See Seattle v. McCreavey, 124 Wash.2d 300, 877 P.2d 686 (1994). On the other hand, a Washington court had also held that a criminal suspect could prevent an unwarranted search of the suspects residence even when another occupant of the same residence consented. State v. Leach, 113 Wn.2d 735, 744, 782 P.2d 1035 (1989)

In issuing its holding, the court balanced the landlord's expectation of privacy in the common areas, and the tenant's interest in the common areas as extensions of their living space. The court concluded that because the landlord has only a minimal expectation of privacy in the common areas, it is unreasonable to allow the landlord to veto a tenant's consent to an inspection of the common areas.

The court also held that the state had the power to conduct an ex parte hearing to issue an administrative search warrant because there were no significant property interests of the landlord at stake. The landlord noted that a public record of the suspected code violations was made, which would operate like a lis pendens, restricting the saleability or mortgageability of landlord's property. The court conceded the analogy to lis pendens, but concluded that this temporary intereference with the landlord's use and enjoyment of the property did not amount to a substantial interference with landlord's property interest.

Comment 1: What would be the case if the language of the lease had expressly limited the tenant's rights to provide governmental access to common areas? One assumes that the general expectation of traffic in such areas still would result in a low "expectation of privacy." Would the case be the same if this were a commercial lease in which the tenants used common areas that were limited only to tenants customers and employees? Employees only?

Comment 2: Whatever the merits of the court's pro-inspection result-oriented attitude, isn't it taking things a bit too far to conclude that a lis pendens does not impose a significant impact on a landowner's property? Consider Connecticut v. Doehr, 111 S. Ct. 2105 (1991) (pre-judgment attachment of real property that is the subject of a pending lawsuit is a substantial interference with ownership and owner is entitled to due process protections. Reasoning is that the owner's ability to sell or mortgage is curtailed, even though owner otherwise enjoys benefits of ownership.)

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