Newark Post | by Karie Simmons
Local landlords are up in arms about a bill drafted by the city of Newark that would give municipalities across the state the power to obtain a warrant to inspect rental properties where tenants have previously denied them access.
According to city officials, code enforcement wants to get inside in order to routinely check for health and safety concerns like working smoke and carbon monoxide detectors, secure railings, clear pathways and stairways, electrical hazards and other violations as required by code, but tenants don’t legally have to let them in, which means several properties in the city are behind on their inspections. The city has directed its lobbyist to request the state legislature introduce and vote on the bill.
David Culver, code enforcement manager, said there are 5,295 rental units in Newark but the city only inspects complexes with less than 14 units, meaning 2,023 units are subject to inspection by code enforcement.
Last year, Culver said, the city was unable to enter approximately 41 percent of those units – approximately 830 – because the owner or tenant either refused the inspection or was not home.
The proposed legislation would allow Newark’s code enforcement to get a warrant from Alderman’s Court in those cases.
On April 28, the Newark Landlord Association’s six board members unanimously voted to oppose the city’s effort to seek a state code amendment in the general assembly.
“We don’t agree with the proposed bill to pursue administrative warrants and we are opposed to it at this time,” said NLA President Kevin Mayhew, who also owns properties on New London Road, Wilson Street, Corbit Street and Church Street.
Mayhew said the NLA believes administrative warrants are unfair and a violation of the Fourth Amendment of the Constitution, which states that a person, their home and their belongings cannot be searched without a warrant and probable cause.
Under Newark’s proposed bill, probable cause is defined as a valid public interest in the effective enforcement of the code and, in order to show probable cause and obtain the warrant, the city must have proof that at least one prior attempt to inspect the property was refused.
Bruce Harvey, NLA secretary and former president, said Wednesday that the only reason the city was able to enter the 60 percent of the units it inspected last year was because those tenants waived their constitutional rights.
“The law in Newark’s code requiring annual inspections is unconstitutional and they’ve acknowledged that it’s unconstitutional or else they wouldn’t need this bill,” Harvey said. “By exercising your rights, the new law would say, ‘Okay were going to come in anyway.'”
City Manager Carol Houck explained last month that an administrative warrant is the only way the city can get inside rental units where tenants have denied access. She noted that while administrative warrants already exist in Newark’s code, there is currently no state law that describes the provisions to actually get the warrant, which is what prompted city council to direct the city’s lobbyist to seek a state code amendment in the general assembly.
Council voted 6 to 1 to draft the bill after returning from executive session, with then-Councilman Rob Gifford as the only opposing vote.
Gifford said Wednesday that he felt the city should have engaged all of the stakeholders – landlords and tenants – before deciding to pursue a state code amendment and voted against the measure because he didn’t think the board understood “all of the implications of what we were trying to do.”
“I didn’t feel comfortable without really talking to tenants and really understanding what problem we’re trying to solve,” he said.
He added that he would have preferred council discuss the issue in a public setting rather than behind closed doors in executive session and isn’t surprised by the backlash the city have received.
“It’s kind of playing out like I thought it would,” he said.
During a council meeting on Monday, a few members of the public spoke out against the bill, claiming the city is over-stepping.
Resident Nancy Willing urged council to slow down and give the renters an opportunity to weigh in and Laura Henderson, who owns property on Madison Drive, agreed.
“I understand the contention that it’s a safety issue, however, the way the bill is written, stakeholders are all residents of the state of Delaware because municipal governments would have the ability to, in my opinion, break in to anyone’s home whether it’s a homeowner or a rental property and I think that’s ridiculous,” she said, referring to the language of the bill, which implies that all owner-occupied and rental homes in the state are subject to inspection with a warrant.
Henderson asked council to read the bill carefully and imagine the implications.
“I think it’s awful and it’s very far-reaching for something for the city to have their hands in,” she said.
Councilman Mark Morehead, who voted to pursue the measure on April 4, called the bill “un-American” on Monday. He said council’s intention was to improve inspections of rental units, not all types of properties as the current version of the bill states.
“I’m growing extremely uncomfortable with council’s position in particular on this bill,” Morehead said, adding that he has not heard any support for the bill among the community.
Mayor Polly Sierer, however, said she has heard otherwise.
“I do think there are municipalities in the state that were glad this was brought forward,” Sierer said, adding that she has also met with several landlords on her own time. “There are many that are in support of this.”
State representatives John Kowalko and Paul Baumbach have both voiced their opposition to the city’s proposal, which worried Councilwoman Jen Wallace.
“I think we need to take note of that,” she said. “If the city of Newark promotes legislation and we cannot get local sponsorship of that legislation, I feel very strongly that we are doing something wrong.”
Baumbach said Wednesday that the bill seems rushed and premature because the city hasn’t listened to the stakeholders yet. He noted that it is difficult to involve all of the tenants, not just in Newark but across the state, because there is no overarching tenant association that can weigh in, but the city could explore holding workshops or creating a committee going forward.
“Administrative warrants may indeed be the right path, but what I am not yet convinced is that it has gone through the right process to determine it is the right solution,” Baumbach said.
Kowalko said he, too, has major concerns about how the issue was brought to light, calling it “ironic” that a bill compromising tenants’ privacy was talked about it private.
He also said he feels uncomfortable that Alderman’s Court would be granting the warrants under the proposal. He said the court, which is located in the municipal building, is inseparable from the city and may not be as impartial when it comes to reviewing warrant requests.
“It’s too close to home for them to say it’s a valid separation,” Kowalko said.
Houck said Monday that she had not heard any suggestions from the Newark Landlord Association regarding how to improve the bill.
“We have not gotten anything as far as a suggestion from the Newark Landlord Association to date,” she said. “On the 11th, it will be a month that they have had the information and all we’ve heard is, ‘Change your process.’”
However, Mayhew did sent her and council members an email stating the group’s opposition to the bill. In the email, he also voiced his frustrations with how the bill was proposed and that the NLA was not a part of the discussion.
“We would like the city to pull the proposed bill for administrative warrants and instruct Carol to form a committee to look into alternative ways to increase the inspection rates,” Mayhew wrote, adding that the city should consider third-party inspectors.
Harvey, who owns properties on Madison Drive and Patrick Henry Court, said he wants his tenants to be safe and while occasional health and safety inspections are reasonable, he doesn’t think the city’s code enforcement officers have the tenants’ best interests in mind.
He said the city should let landlords hire their own third-party inspectors or allow certified landlords and tenants to perform their own inspections using a city-approved checklist.
“Everyone would be working off the same page. We don’t have anything like that in Newark,” he said. “That would be a giant step.”
If the city really is concerned about health and safety, Harvey said, city officials should create a tenant safety handbook to improve tenant education and reduce the need for routine inspections.
“Let’s stop talking about the bill and start talking about safety,” he said.