Constitutionality of Ohio Point of Sale Inspections Under Challenge

The 1851 Center for Constitutional Law (the "Center") has filed two lawsuits in Ohio federal courts seeking to enjoin the enforcement by cities of 'point of sale' programs.

A city's 'point of sale' or 'presale' program requires homeowners to pay for and pass government inspections before they can sell their homes. While these programs, adopted by city ordinance, can differ from city to city, they essentially provide that the homeowner pays a fee for the 'privilege' of being inspected. This inspection can be limited to solely the outside of one's home or may require a homeowner to admit an inspector inside to inspect the home's interior as well. The inspector may then require certain repairs to be made, or funds escrowed for the estimated cost of such repairs, before the sale can proceed.

Cities argue in favor of such ordinances as a way to improve the condition of housing within its borders. Opponents argue that these inspections are warrantless searches and therefore unconstitutional. Further, there is evidence that these inspections cause many home sales to fall through due to the dollar amount of repairs demanded by inspectors, which costs render the deal uneconomical.

The Center filed a legal action against the City of Bedford (outside Cleveland, Ohio) on behalf of Ken Pund  (an area landlord who was forbidden from selling a home he owns to his daughter and in which she resides) and John Diezic (a homeowner who was prevented from selling his home in Bedford due to minor cracks in his asphalt driveway).

The Center also filed a legal action against the City of Oakwood (outside Dayton, Ohio) on behalf of Jason Thompson, a homeowner who was forced to pay for and undergo an inspection when he wanted to alter the title to his property (i.e., no real property transfer involved).

In each of these instances, the homeowners were threatened with criminal prosecution and even imprisonment if they proceeded with the sale of their homes without first complying with and passing the point of sale inspections. The Center contends that these ordinances, in additional to restricting Ohioans' property rights, are warrantless searches that violate the 4th Amendment and Section 14, Article 1 of Ohio's Constitution.

While it remains to be seen if the Center is successful in its legal actions, it appears to have a pretty good track record.  If the courts decide in favor of the homeowners in these actions, then a lot of cities will have to stop their point of sale/pre-sale inspections until they can be reworked (if possible) to comply with the court decisions.
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