Testimony: Protecting Mainers’ Property Rights


Testimony in Opposition to LD 1905, “An Act to Create a Residential Rental Unit Registry”

Senator Pierce, Representative Gere, and the distinguished members of the Committee on Housing, my name is Nick Murray and I serve as director of policy for Maine Policy Institute. We are a free market think tank, a nonpartisan, non-profit organization that advocates for individual liberty and economic freedom in Maine. Thank you for the opportunity to testify in opposition to LD 1905.

Maine Policy has been following this issue on the local level in Maine since Sanford was considering its own rental registry in June 2017. We pointed to the potential constitutional issues with local officials pledging to go “block-by-block” and “building-by-building” to administer their “proactive inspections,” seeking “full compliance” with a new city-wide building registry.

This sort of Orwellian language should make any American nervous. Unfortunately, LD 1905 aims to bring this level of power over individuals to the state level, enshrining violations of constitutional rights into state law. It would compel landlords to register their rental properties and allow state bureaucrats to inspect rental units without a warrant, and fine those who object. Not only are these laws at odds with private property rights, but they prevent individuals from renting their property without being subjected to a coerced inspection. 

Mandatory rental inspections violate the Fourth Amendment and may deter property owners from entering the housing market at all. Our position is simply this: Mainers should not lose their privacy rights just because they choose to rent a property.

Enforcement of rental registries may potentially limit Mainers’ 4th Amendment rights because searches pursuant to administrative warrants require a lower standard of judicial scrutiny, under current interpretation. This is wrong. An administrative warrant for a search of property should be considered like any other warrant, so the state should show that it has a compelling interest to subject property owners to inspection of their rental properties, for no other reason than it exists.

In the context of Maine law, Title 30-A §4452 gives municipal officials, “with the consent of the owner, occupant or agent,” authority to inspect housing property for code violations. It does not allow housing inspections to be carried out without proper consent, as the U.S. Constitution mandates, and as federal district courts and the Supreme Court of the United States (SCOTUS) have maintained.

In Payton v New York (1980), SCOTUS held that “the sanctity of the home . . . has been embedded in our traditions since the founding of the Republic” and further, in Camara v San Francisco (1967), that “[i]t is surely anomalous to say that the individual and his private property are fully protected by the Fourth Amendment only when the individual is suspected of criminal behavior.” In Camara, the Court maintained that even in noncriminal cases (such as the enforcement of building codes) the Fourth Amendment still applies.

In 2015, Ohio’s 1851 Society represented property owners in a case challenging a local rental registry ordinance, for which Judge Susan Dlott of the Western Division of the Southern District of Ohio ruled that the ordinance violated the Fourth Amendment “insofar as it authorizes warrantless administrative inspections.”

A paper published in the Touro Law Review entitled, “Administrative inspections: The Loophole in the Fourth Amendment” explores the relevant case law and constitutional questions in greater depth.

According to the Fourth Amendment, no unreasonable search and seizure shall be granted without obtaining a warrant based on probable cause. Probable cause refers to a state entity’s reasonable suspicion that a crime has been committed or will soon be committed. Barring the owner’s consent, government officials cannot search property without a warrant. 

Please deem LD 1905 “Ought Not To Pass” and reject this unnecessary attempt to project this level of state control over individual property ownership. It will work against other efforts to alleviate the state’s housing crisis.  Thank you for your time and consideration.