Sellers fight presale inspection law

Calumet City, Ill., passed a point-of-sale ordinance prohibiting a home from being sold until it has been inspected to determine whether it complies with city building codes. Several homeowners were prevented or delayed from selling their homes by the mandatory inspection.

The group of homeowners filed suit against the city, arguing that the ordinance violated the due process clause of the 14th Amendment, which prohibits governmental agencies from "depriv(ing) a person of property without due process of law."

All cases were dismissed at the trial court level on grounds that the homeowners had no claim.

On appeal, the trial courts' dismissals of the homeowners' claims were affirmed. The Court of Appeals clarified that the 14th Amendment's due process requirements do not prohibit governmental regulation on what people can do with their property via building and zoning codes, by any means. The court cited numerous rulings upholding domestic pet restrictions on private property to prove its point.

Rather, the court explained, the 14th Amendment has been judicially construed to mandate that the government justly compensate property owners for regulations so constrictive that they amount to a taking of the property. However, homeowners were not requesting compensation; rather, they argued that the ordinance was so "irrational" that its enforcement should be enjoined, or prohibited, altogether.

The appellate court rejected this argument, declaring that "building codes, to which the challenged ordinance is ancillary, cannot be thought irrational."

The court noted that the homeowners' arguments against the ordinance centered around the assertion that the procedural method by which the ordinance was enforced -- including allowing the city to take up to 28 days after the city is notified of the pending purchase transaction to send a city inspector to the property -- failed to protect homeowners from excessive restriction on their right to sell the property.

However, the court explained, homeowners did not suggest what the ordinance would have to do to meet a standard of procedural reasonableness.

The homeowners' arguments also failed for this reason, according to the court: The ordinance "provides the conventional procedural safeguards and if these are inadequate we don't know what adequacy requires."

The appeals court went on to review in detail the procedure for inspection and repair or "deconversion" of a property from an illegal multifamily building to a single-family residence in compliance with building codes. The ordinance and state law, together, provided numerous opportunities for a homeowner to appeal or dispute the city's repair or deconversion orders.

Additionally, none of the hypothetical scenarios the homeowners posited might violate due process had actually materialized in fact.

Accordingly, the court ruled the plaintiff's arguments "frivolous" to the extent they did not arise from any individual fact pattern in which the ordinance was applied unconstitutionally. As a result, the trial court judgments dismissing the homeowners' claims were affirmed.

Tara-Nicholle Nelson is author of "The Savvy Woman's Homebuying Handbook" and "Trillion Dollar Women: Use Your Power to Make Buying and Remodeling Decisions." Ask her a real estate question online or visit her Web site, www.rethinkrealestate.com.

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