Village Code Provision Regulating the Issuance of Residential Rental Permits is Unconstitutional when Conditioned upon a Mandatory Inspection of the Premises Sought to be Rented

Municipal Law

In the first group of decisions to be issued in the New Year, the Second Department begins with a lesson in constitutional law.  In ATM One, LLC v. Incorporated Vil. of Hempstead, 2012 NY Slip. Op. 00173 (2d Dept. 2012), the Court held that a provision of the Village Code of the Village of Hempstead was unconstitutional on its face.  The Code provision in question conditioned the issuance of residential rental permits on a mandatory inspection of the rental unit by the Village Building Department.  The Court found that the Village could not use the issuance of a rental permit to coerce a property owner to submit to a warrantless inspection in violations of the rights guaranteed to him or her under the Constitution. 

Chapter 106 of the Code of the Village of Hempstead required that real property owners obtain a rental permits for each residential dwelling unit to be rented within the Village.  Prior to the issuance of such a permit, Village Code § 106-6 required that the “Superintendent of the Building Department or his or her delegate shall review each application for completeness and accuracy and shall make an on-site inspection of the proposed rental dwelling unit or units.” ATM One LLC at 1 (emphasis added).

Plaintiffs / Appellants, ATM One, LLC, et. al., are the owners and landlords of real property located in the Village that are rented for residential purposes.  Plaintiffs’ commenced this action against the Village for a declaration that Village Code Chapter 106 was unconstitutional.  The Village moved for dismissal of the action, based on, inter alia, the grounds that that the law was constitutional. The Supreme Court granted the Village’s motion and dismissed the action.  The Plaintiffs appealed.

On appeal, the Court reversed the Supreme Court and remanded the action for a declaration that Village Code Chapter 106 was unconstitutional on its face based on the grounds that it authorized and required a warrantless inspection of residential real property prior to the issuance of any rental permit.

The Court based its holding on the Court of Appeals’ decision in Sokolov v. Village of Freeport, 52 N.Y.2d 341 (N.Y. 1981), where the Court examined a local law analogous to Village Code Chapter 106.  In Sokolov, the Court found that:

“the village may not compel the owner’s consent to a warrantless inspection upon the theory that these searches are a burden which a property owner must bear in exchange for the right to open his property to the general public for rental. It is beyond the power of the State to condition an owner’s ability to engage his property in the business of residential rental upon his forced consent to forego certain rights guaranteed to him under the Constitution”

Id. at 347.

Based on this precedent, the Court in ATM One found that “Chapter 106 suffers from the same defect as the law at issue in Sokolov and, therefore, is unconstitutional on its face (see Sokolov v Village of Freeport, 52 NY2d at 345-346; Town of Brookhaven v Ronkoma Realty Corp., 154 AD2d 665, 666). Thus, the defendant’s motion is denied, and we search the record and award the plaintiffs summary judgment declaring that chapter 106 is unconstitutional (see CPLR 3212[b]; Dunham v Hilco Constr. Co., 89 NY2d 425).”  ATM One LLC at 2.

A full copy of the Court’s decision in ATM One, LLC v. Incorporated Vil. of Hempstead can be found at the Appellate Division’s website by clicking here.



One Response to “Village Code Provision Regulating the Issuance of Residential Rental Permits is Unconstitutional when Conditioned upon a Mandatory Inspection of the Premises Sought to be Rented”

  1. stan kapish 70yr Says:

    Duryea to reconsider rental ordinances
    Wednesday Dec 11 | Posted by: roboblogger | Full story: The Citizens’ Voice

    Duryea Borough Council will revisit two proposed rental ordinances amid concerns from residents, landlords and an organization fighting similar ordinances in the area.

    11 Comments Add to my Tracker and all Pa. Towns want rental insp

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