OAKWOOD UPDATES RULES ON PRE-SALE HOME CHECKS
Group had filed suit over regulation that required owners to pay Oakwood $60 before doing a sale.
A decades-old Oakwood OAKWOOD — program that required houses and properties to be inspected before being sold was found unconstitutional earlier this year, then updated recently in order to comply with the law, city officials said.
Meanwhile, the group that represented more than 1,000 residents who had paid the city a $60 fee for the property inspection in the past six years said those residents will get money back. And the group still is questioning Oakwood’s changes.
“We were able to track down these homeowners, some of them still in the area and some of outof-state,” said Maurice Thompson, director of the 1851 Center for Constitutional Law, which represented the homeowners in the federal suit. “The total amount of the fees to be returned didn’t amount to much — maybe $60,000 to $70,000 — but it has to be repaid and that should happen by the end of the year.”
The Oakwood pre-sale and inspection program required properties to pass an inspection by the city prior to being sold.
In May of 2016, the 1851 Center filed suit in federal court, arguing that the requirement amounted to a warrantless search.
In February, Judge Thomas M. Rose of the Southern District of Ohio issued a 40-page ruling that rejected the pre-sale inspections and granted the return of inspections fees to all affected homeowners.
Law Director Rob Jacques said the city was granted approval by the court in March to implement an updated ordinance.
“Although it was entirely constitutional when first adopted, an inadvertent change was made to the ordinance in 1992,” Jacques said. “As a result a provision was deleted that would have allowed the code enforcement officer to seek an administrative search warrant in the event that an owner objected to an interior inspection of his or her home.”
He added that the absence of that provision in the 1992 ordinance is what prompted the lawsuit, and the provision is included in the updated ordinance.
“Owners who plan to sell homes in Oakwood are required to obtain and pay for an inspection prior to sale, as they have since 1968,” Jacques said. “But there are now procedural safeguards in place that will allow the city to seek a search warrant in the event that an owner refuses consent for the interior inspection.”
Thompson, from the 1851 Center, said the new form of the program should not involve the city gaining entrance to a property for an inspection or charging a fee.
“Basically, it is what you or I can see from the street,” Thompson said.
Oakwood residents recently received postcards from the Dayton Realtors organization criticizing the pre-sale inspection program, even though it has been modified.
Bob Jones, director of communications for Dayton Realtors, said the postcards distributed to Oakwood residents did not claim that the city’s current practice is illegal, but that it is an unfair practice.
“As the trade association for all Realtors in Oakwood and the Miami Valley, Dayton Realtors opposes pointof-sale inspections by municipalities,” Jones said.
“Our position is consistent with policies that are in place at the state and national levels,” he added.
He added that Dayton Realtors is opposed because such programs interfere with the right of property owners to sell and the right of buyers to seek an ownership interest in real property.
Jennifer Wilder, director of personnel and properties for Oakwood, said that local real estate agents have expressed their support and appreciation for the pre-sale program.
Wilder said the program keeps “our aging housing stock safe, in compliance with the Oakwood zoning code and property maintenance code” and maintains “strong property values, year after year.”
Wilder said much of Oakwood’s housing stock dates back to the 1920s and 1930s, and virtually no substandard housing exists.
“Residents are actively encouraged to maintain and enhance their properties, and decade after decade they do so,” she said. “This benefits the community by ensuring that Oakwood housing remains both safe and desirable, and home values remain high.”
Zoning, building and property maintenance regulations are intended to promote public health, safety and welfare, according to Wilder.
She said the program “helps to prevent homes from catching fire, collapsing, becoming unsightly or unsafe, or causing environmental damage, and by doing any of these things, reducing the value of other properties in the neighborhood.”