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Can zoning administration building inspectors or assessors enter private property?

Michigan Township News January 1994 pages 24 & 25

 

 

You have requested a legal opinion regarding the zoning administrator's right to enter a parcel of land to investigate a possible ordinance violation.  You have also asked for a clarification of the building inspector or assessor's rights to enter private property.

 

Every unauthorized invasion of private property is a trespass that can give rise to civil action.  In addition, MCLA 750.522 provides a criminal penalty for any individual who, after being forbidden from entry, willfully enters an the property of another without lawful authority or upon being told to leave the property of another, refuses to leave without proper authority.  Our analysis will focus upon the civil action because it occurs at a lower threshold than the criminal penalty, and prevention of a civil action will also prevent  criminal violation.

 

Authorization is the key element allowing entry upon private property without giving rise to a cause of action.  There are three ways an individual can be authorized to enter , private property.

 

1)             Legal authority is conferred upon an individual by. statute, and it authorizes an individual to enter the property of another.  For example, a search warrant issued by a court on probable cause confers legal authority.  This legal authority is conferred only to the extent the applicable law dictates.

 

2)             Express consent allows an individual to enter another person's private property when the property owner or occupant gives the individual express permission.  Express consent is limited by the fact that it may be revoked at any time, and the individual operating upon such consent must leave the property when it is revoked.

 

3)             Implied consent allows for consent to be implied from custom, usage or conduct.  For example, a doorbell on the front of a residence is an invitation to enter another's property for the purpose of calling the occupant to come to the door and speak to you.  However, consent cannot be implied when the property owner or occupant has outwardly evidenced an intent that consent is not given, such as a "do not trespass" or "keep out" sign.  Implied consent is limited to accomplishing the purpos6 for which consent was given.

 

The zoning administrator, building,, inspector and assessor should not enter private property without legal authority, express consent or implied consent.  However;,.-t I he legal authority for each of these officials to enter private property differs.

 

The zoning administrator's powers are conferred by Section 24 of the Township Rural Zoning Act, which provides that the township board shall designate in the zoning ordinance the proper official or officials who will administer and enforce that ordinance and provide" penalties for violating the ordinance.

 

It is our opinion that this provision does not confer on the zoning administration inherent legal authority to enter another person's private property.  However, it does provide a zoning administrator with the opportunity to obtain legal authority by the way of a court ­issued warrant to enter the private property.  Upon probable cause, a zoning administrator could receive a warrant from a judge to enter property to verify zoning ordinance violations.  Without such a warrant, the zoning administrator can only enter private property through express or implied consent.

 

The legal authority conferred on the township building Inspector can vary depending on the ordinance adopted by the township, such as the State Construction Code, Uniform Building' Code, Housing Law or Dangerous Building Code.  For the sake' of this opinion, we assume your township enforces the State Construction Code and the State Housing Law, as these two laws contain provisions that illustrate the general limits on a building inspector's entry on private property.

 

A building-inspector has authority to conduct certain inspections under Section 1 2(2) of the State Construction Code Act, which provides in part that: 

'The owner of premises on which a building or structure is being constructed is deemed to have consented to inspection by the enforcing agency and the commission of the entire premises and any construction being performed on it until a certificate of use and occupancy has been issued.  An inspector or team of inspectors, on presentation of proper credentials, may enter and inspect the premises and construction thereon for purposes of insuring compliance with the building permit, the code and other applicable laws and regulations. An inspection shall be made between 8 a.m. and 6 p.m. on business days or when construction is actually being undertaken, except if the enforcing agency has probable cause to believe that immediate danger to life, limb or property exists or except with permission of an owner,    his agent, architect, engineer or builder.  An inspection pursuant to this section shall be made Solely for purposes of enforcing this act and other laws and ordinances related to construction of buildings and structures.  A person other than the owner, his agent, architect, engineer or builder shall not accompany an inspector or team of inspectors on an inspection, unless his presence is necessary for the enforcement of this act or other laws and ordinances related to construction of the building or structure or except with the consent of an owner, his agent, architect, engineer or builder.'

 

Although this provision appears to give the inspector cart blanche authority to enter private property under the above conditions, it is our opinion that this deemed consent may be revoked by the property owner.  If the owner specifically informs the building inspector that the premises may not be inspected, then at that point, legal authority would no longer apply, and the building inspector should leave the premises.  However, since the refusal to allow the required inspections is contrary to the building code, the building inspector should proceed as though there has been a violation of the building code.

 

The State Housing Law (MCL 1 25.401 et. seq.) confers specific legal authority for a township to adopt an ordinance applying the law's provisions relating to private single-family and two-family dwellings to such dwellings within the township.  Section 126(4) of the Housing Law provides for inspection of such regulated premises as follows:

'An inspector or team of inspectors ma y request permission to enter all premises regulated by this act at reasonable hours to undertake an inspection.  Upon an emergency as defined under the rules promulgated by the enforcing agency, the inspector or team of inspectors shall have the right to enter at any time.

 

In addition, Section 127(l) of the Housing Law addresses non ­emergency situations, as follows:

'In an non-emergency situation where the owner or occupant demands a warrant for inspection

Of the Premises, the enforcing agency shall obtain a warrant from a court of competent jurisdiction.

 

la a warrant is issued, the building inspector would have legal authority to enter the property for inspection Purposes without the property owner's consent In a non emergency situation.

 

An assessor has no legal authority to enter upon the private property to appraise its value.  An assessor can only enter private property with express consent or implied consent.

 

In summary, if the zoning administrator, building inspector or assessor has no legal authority to enter private property In an official capacity, en" should only be made with express or implied consent.

 

Legal Briefs is a feature of the Michigan Township News designed to answer common legal questions from township officials. Questions are posed to either Michigan Townships Association staff members, who direct them to the counsel of MTA's law firm of Bauckham, Sparks, Rolfe & Thomsen, P. C., or the inquiries are the direct result of regular telephone counsel on Thursdays. Mat appears in this column is the' written opinion of counsel in response to these questions.