Get Right to Enter Residents’ Units with Government Inspectors
As part of its compliance monitoring responsibilities, a state housing agency must conduct on-site physical inspections and review low-income certifications and other documentation. The agency must perform these inspections and certification reviews at least once every three years after the initial on-site inspection.
Regulations issued last year require the agency to choose the low-income units and tenant records in a manner that won’t give site owners advance notice that a particular unit and tenant records for a particular year will or won’t be inspected and reviewed. But an agency may give an owner reasonable notice that an inspection of the building and low-income units or tenant record review will occur so that the owner may notify tenants of the inspection or assemble tenant records for review.
Besides inspections by your state housing agency, your tax credit site is subject to other types of government inspection. Your site may be visited by a city building inspector or a fire marshal. All these types of government inspections are usually scheduled in advance, which allows you time to send residents a memo informing them of the inspection and of the possibility that the inspector will need access to their units.
Sometimes, though, a government inspector will need to make an emergency inspection. For example, if bricks are falling off the building’s exterior or if an electrical fire breaks out, an inspector may have to get inside a resident’s unit to learn more about the problem. In such a situation, you’ll want to let the inspector into the resident’s unit immediately. But the resident may not be at home or may refuse to let the inspector in. And the resident’s lease may not give you the right to let the inspector in. If you let the inspector in anyway, the resident may sue you for unlawful entry. And depending on the state you live in, the resident may win.
Put Right to Enter in Lease
A solution to this problem is to include language in your lease that says you have the right to enter residents’ units with a government inspector without prior notice or residents’ consent or presence. Make sure you give yourself a general right. So don’t list the types of government inspectors you may let in, because you’re bound to overlook one. And don’t specify that you may give access only in emergencies. If you do, you may get into a dispute with the resident over whether the situation was an emergency. This is a dispute that could end up in court.
Also, make sure you give yourself the right to get into the unit “by any means necessary,” including force. If the inspection is part of an emergency, you don’t want to be prevented from getting access because you don’t have a duplicate key.
Here’s Model Lease Language you can add to your lease to give yourself the right to let a government inspector into a resident’s unit without the resident’s consent. Remember to show our Model Lease Language to an attorney in your area before using it in your leases.
Model Lease Language
Owner, manager, or maintenance staff may enter the apartment without resident’s prior notice, presence, and/or express permission, by any means necessary including, but not limited to, use of duplicate or master key or by force, to allow a government inspector (including, but not limited to, building inspectors, fire marshals, state housing agency inspectors, and environmental inspectors) access to an apartment when necessary or appropriate as part of an inspection.