Code Enforcement Officer’s Right to Enter Property to Inspect for Code Violations Challenged

Tuesday, December 12, 2017

Title 30-A § 4452 allows code enforcement officers (CEOs) and other local officials who are specifically tasked with enforcing local ordinances the right to go on a potential violator’s property to determine if violations exist. The statute requires permission from the property owner if a local official wishes to inspect inside a building, but specifically states that such an entry onto property under the authority of the statute is not a trespass. Pursuant to the Fourth Amendment, however, there is a question about inspecting the curtilage, being the area directly around someone’s home. Although there is no Maine case law directly on point, a local official should not enter onto property closely in the vicinity of the home without permission.

The bigger question is what should happen when permission to enter property is refused by the property owner even though the local official has the right to go onto the property under the law.

In a recent case that we handled for a Central Maine town, there was a dispute between the local official and the property owner as to whether the CEO was allowed to enter onto the property, although not in the vicinity of a home. When the CEO and the Town Manager arrived for a previously noticed inspection, the property owner called the police and then kept repeatedly jumping in front of the town vehicle when the officials tried to leave. After consultation with the District Attorney, the Maine State Police served criminal trespass orders on the CEO and the Town Manager.

Additionally, by failing to state in his pleadings that the parties allegedly harassing him were town officials, who were at his property on official town business, the property owner was able to obtain a Protection from Harassment Order in District Court against the town officials. 

As the town attorneys, we were able to convince the District Attorney to drop the criminal trespass orders with the agreement that the town would not go back onto that particular piece of property without an administrative consent warrant. The District Attorney was unaware of the statute and thought that the right thing was being done to prevent violence. It was necessary to file motions to dissolve the temporary orders and dismiss the harassment cases in District Court. The cases were dismissed without hearing.

The caveat to broad inspection authority under the statute is that, while town officials have the right to enter onto property to inspect for violations, they should be cautious about exercising this right, and would be wise not to insist on entrance onto property if the property owner objects.