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Landlord challenging legality of Schenectady rental inspections

Wednesday, August 28, 2013
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— A landlord facing up to $100,000 in fines for violating Schenectady’s rental certificate law is challenging the law’s constitutionality in court.

The law requires landlords to submit to an inspection of every apartment before they are rented. Many landlords have complained the law is an unreasonable search, which is barred by the U.S. Constitution. But the last landlord to make that argument in court was facing severe code violations, and the judge ruled against him in state Supreme Court in Schenectady County.

This case is different, though. Mohammed Hafez owns several properties in Bellevue, which he says are so well-kept they cannot be distinguished from the owner-occupied houses around them. No code violations have been cited against them.

If he had told the city he was renting them out and demanded code enforcers get a warrant before entering his premises, he might have become the first landlord in the city to win permission to rent without an inspection.

Deputy Corporation Counsel Carl Falotico said if the city could not prove in court it needed a warrant because of code violations in Hafez’s buildings, Hafez would have been allowed to rent without inspections. But Hafez didn’t ask for permission.

In the same type of search that caught hundreds of other landlords, the city found Hafez was renting apartments by researching property deeds and tax bills. Then code enforcers sent him a letter: Follow the inspection law, or face a daily fine for flouting it.

Hafez refused. In court, city attorneys said they want a $100,000 fine.

Hafez could have agreed to inspections to avoid the fine, but he said he wanted to fight the law — all the way, if necessary, to the Court of Appeals, the state’s highest court. Hafez’s attorney, Glen Brownell, said he explained the cost, and Hafez still wanted to go forward.

“I told him it all comes down to how much you want to spend to prove a principle,” Brownell said.

Now Brownell is filing motions regarding the constitutionality of the law. It will likely be months before a trial date is set. His arguments center around the inspection.

In response to other court rulings, the city wrote its law with the provision that inspectors would get a search warrant if a landlord refused to let them in. Brownell said he’s waiting to see if inspectors actually get a warrant.

Falotico said landlords have the right to tell code enforcement to get a warrant, rather than submitting to an inspection. But they can’t rent their apartments until the inspectors get a warrant or are denied one in court.

“Most people don’t want to wait for the amount of time that takes. They would prefer to get tenants in there and start making money,” he said.

Brownell said that would backfire on the city. If the inspectors can’t prove there are code violations in the apartment, he said, no judge will give them a warrant.

Falotico said city inspectors are usually “prepared for any contingency” and could argue their case in court. Some violations can be seen from the exterior, and tenants often report violations to the city.

But he agreed the inspectors would be denied if they have no evidence of code violations.

“In order to get a warrant, we’d have to show there are code violations in that building,” he said.

If the city can’t get a warrant, he added, the landlord can start renting the apartment.

“If we can’t get it, that’s how it is,” he said.

But the key is that landlords must wait until then.

“They cannot put tenants in that property until we’ve had an opportunity to apply for that warrant,” he said.

Hafez rented his apartments without telling the city to get a warrant. Falotico thinks that will sink Hafez in court.

“The allegations [regarding constitutionality] don’t affect what he’s in court for now,” Falotico said. “Landlords want to rent first, and that you cannot do.”

 
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comments

August 28, 2013
10:12 p.m.
gina99 says...

About time someone contested the City's illegal revenue generation scams.

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