M.D.Fla.: Owner of housing rental units has no REP in the property during a tenancy from housing inspection

A housing rental partnership has standing to sue under the Fourth Amendment for rental inspection under a city ordinance because of collateral consequences to them. The inspections only occur when they are rented. The complaint fails on the merits, however, because the renter lacks a reasonable expectation of privacy in the property when it is occupied by a tenant. Lea Family Partnership Ltd. v. City of Temple Terrace, 2017 U.S. Dist. LEXIS 46408 (M.D. Fla. March 29, 2017):

As discussed in section II(A)(iii)(b), infra, the Court agrees that Lea Family has not alleged that it has been subjected to any warrantless, non-consensual inspections of its properties. However, Lea Family alleged other injuries. For example, it alleged that it has complied with a purportedly unconstitutional ordinance by providing involuntary, advanced consent for the City to inspect its properties and paying the City’s rental permit fees. It also alleged that (at some unspecified point in time) it began to refuse the City’s efforts to inspect its properties, and it is therefore at risk of losing its ability to rent its properties and/or facing civil or criminal penalties if it continues to rent its properties.

The Court finds these injuries sufficient to confer standing. Lea Family should be allowed to challenge the constitutionality of the Program, given that the Program regulates how Lea Family can use its properties and Lea Family is subject to penalties if it fails to comply with the Program’s provisions. …

. . .

To prove a claim of trespass to one’s property, an individual must have occupancy of the property, which includes an intent to control the property and a claim of exclusive control of the property. See Restatement (Second) of Torts § 157, Cmt. a., § 158, Cmt. c. (Am. Law Inst. 1965). When Lea Family’s units are leased, it does not occupy the units, nor does it have the ability to invite others into or exclude others from the units. As such, it cannot object to an inspection of the leased units—only the tenants can. See Parr v. United States, 255 F.2d 86, 89 (5th Cir. 1958) (holding that the owner of a half interest in a property could not object to a search of the property when he had leased it and he did not have possession or the right to possession at the time of the search).

For similar reasons, Lea Family lacks a reasonable expectation of privacy in its leased, occupied rental units. An individual has a reasonable expectation of privacy in the area searched if he or she exhibited an actual expectation of privacy and that expectation is one that society is prepared to recognize as reasonable. Smith v. Maryland, 442 U.S. 735, 740, 99 S. Ct. 2577, 61 L. Ed. 2d 220 (1979) (citing Katz, 389 U.S. at 361). Lea Family could not have had a reasonable expectation of privacy in its leased units, given that the tenants lived there and could invite anybody they wished into their homes. See Shamaeizadeh v. Cunigan, 338 F.3d 535, 544-45 (6th Cir. 2003) (finding that the owner of a house had no reasonable expectation of privacy in the basement he rented out); United States v. Dyar, 574 F.2d 1385, 1390 (5th Cir. 1978) (holding that the owner of a leasehold interest in a property had no expectation of privacy in the property when he had given possession to another person).

For these reasons, the Court cannot reasonably infer from the Complaint that the City has conducted searches that violated Lea Family’s Fourth Amendment rights. Although Lea Family has not stated a claim that the Program violates its rights against unreasonable searches and seizures, it has stated a claim that the Program violates the unconstitutional conditions doctrine. Therefore, Plaintiff can proceed to litigate Count I based on this theory of liability.