RHLS Responds to Rivera II.

Proactive Rental Inspection Programs after Rivera, et al. v. Borough of Pottstown, et al. (“Rivera II”)

On December 9, 2025, the Commonwealth Court held that the Borough of Pottstown’s rental inspection ordinance violated the privacy rights of tenants guaranteed under Article I, Sec. 8 of the Pennsylvania Constitution insofar as it authorizes nonconsensual inspections without individualized probable cause to believe that a code violation has occurred. Municipalities throughout Pennsylvania that have adopted proactive rental inspection (PRI) ordinances may wonder how this decision affects those laws.

Background

Pottstown’s rental registration and licensing ordinance[1] requires that all residential rental dwellings be inspected every two years. If access for an inspection is denied, the Borough may suspend or revoke a rental license or may apply for an administrative warrant to compel access.

An administrative warrant has less stringent standards than a typical search warrant, which requires individualized probable cause (specific facts indicating a reasonable probability that a crime is being committed, or in this case, that a code violation exists). For administrative warrants, probable cause can be established by showing that there are “reasonable legislative or administrative standards” for conducting an inspection. Typically, a property maintenance code with a neutral inspection schedule and a checklist of minimum standards to guide the inspections will suffice. The use of administrative warrants in the context of code enforcement has been upheld by the U.S. Supreme Court in Camara v. Municipal Court of City and County of San Francisco, 387 U.S. 523 (1967) and in several Pennsylvania appellate decisions.

Dorothy and Eddie Rivera (tenants) refused to give the Borough inspector access to their home. The Borough sought an administrative warrant, which was issued despite tenants’ objections. The Riveras, along with other tenants and their landlords, sued to enjoin enforcement of the inspection requirement, alleging that the Borough violated their rights of privacy and freedom from unreasonable searches under Article I, Section 8 of the Pennsylvania Constitution. They argued that Article I, Section 8 provides greater protection than the 4^th Amendment of the U.S. Constitution and that it prohibits searches that are unsupported by individualized probable cause (specific facts indicating a probability that a code violation has occurred).

The Commonwealth Court agreed, holding that the code provisions authorizing administrative warrants for biennial rental inspections on less than individualized probable cause violate Article I, Sec. 8 of the Pennsylvania Constitution. Rivera, et al. v. Borough of Pottstown, et al., 190 & 224 C.D. 2024 (Pa. Cmwlth. December 9, 2025) (en banc) (“Rivera II”).

The Role and Legality of Proactive Rental Inspections

PRI programs exist because the traditional complaint-based approach to code enforcement was inadequate. Adopting a prevention-based approach allows municipalities to catch dangerous and unhealthy conditions early, before they can harm occupants or cause a property to become blighted. As the U.S. Supreme Court observed in Camara, "the public interest demands that all dangerous conditions be prevented or abated, yet it is doubtful that any other canvassing technique would achieve acceptable results. Many such conditions - faulty wiring is an obvious example - are not observable from outside the building and indeed may not be apparent to the inexpert occupant.”[2]

Fortunately, while the Rivera II holding represents a fundamental shift in the law, it does not prevent Pennsylvania municipalities from effectively implementing a PRI program pursuant to a well-drafted rental licensing ordinance.

Rivera II does not affect the power of municipalities to require an inspection as a precondition to the issuance or renewal of a rental license…

Many PRI ordinances provide that a failure to pass inspection will result in the denial of a license application or the revocation or refusal to renew an existing license, and the Commonwealth Court has previously held that such a scheme does not implicate constitutionally protected privacy concerns.[3] Some, like Pottstown’s, provide that the failure to allow inspection may result in both the revocation or suspension of a rental license and the seeking of an administrative warrant.[4] Some, like the City of Meadville, dispense with the administrative warrant altogether and provide that the only consequence is the revocation of an existing license or the refusal to issue a new license.[5] The two approaches accomplish the same result, namely, the identification and abatement of dangerous or unhealthy living conditions. The Commonwealth Court’s holding in Rivera II concerned only the issuance and execution of an administrative warrant.[6] Requiring an inspection as a precondition to the issuance or renewal of a rental license therefore remains a viable option.

…however, the scope of the inspection should be limited to the identification and abatement of dangerous or unhealthy living conditions

Pottstown’s inspection regime is extremely broad. The ordinance does not specify the purpose of the inspection. It provides that a license is issued after an inspection and “upon compliance with all applicable codes,” which are defined broadly as “any State or local code or ordinance adopted, enacted or in effect in and for the Borough of Pottstown.” In addition to requiring owners to comply with various residential health and safety codes, the ordinance prescribes occupant duties, including a prohibition against engaging in and permitting others on the premises to engage in any conduct declared illegal under the Pennsylvania Crimes Code, the Liquor Code or the Controlled Substance, Drug, Device and Cosmetic Act.[7]

Pottstown’s inspectors are apparently instructed to report to police anything that the inspector considers an indicator of criminal activity.[8] The Rivera II plaintiffs contended that the ordinance’s failure to place reasonable restrictions on inspections allows inspectors to have unfettered access to occupants’ personal information.[9] The trial court found that Pottstown’s inspection checklist contains 130 separate items to be inspected and noted that the parties “dispute the extent to which inspectors look into closets, drawers, etc.”[10] The court held that the absence of reasonable restrictions on inspection violated tenants’ privacy rights under Article I, Section 8 of the Pennsylvania Constitution and enjoined the Borough from conducting such inspections unless it amends the ordinance to provide adequate notice and “judicial consideration of reasonable restrictions on the inspection.”[11] The Commonwealth Court did not address this issue, however, ruling instead that the inspections themselves violate the Pennsylvania Constitution regardless of how broad or narrow their scope.[12]

Governments may not condition the receipt of a government benefit upon the surrender of one’s constitutional rights.[13] This applies to the issuance of licenses and permits.[14] When a government requires an applicant for a license or permit to surrender some constitutionally protected right, there must be a “nexus” and “rough proportionality” between the government’s demand and the effects of the proposed land use.[15] So while a municipality may, per Simpson, require that rental units pass inspection as a precondition of the issuance or renewal of a rental license, the standards governing that inspection must have some proportional relationship to the harms that can result from the property’s use as rental housing – namely, the risk that occupants will be exposed to unsafe and unhealthy property conditions.

The trial court in Rivera II held that the absence of reasonable limitations on Pottstown’s inspection regime violated tenants’ constitutionally protected privacy rights. Municipalities that are thinking of adopting or amending a PRI ordinance in light of Rivera II should take care to ensure that tenants are given adequate notice and that inspections are limited to identifying potentially dangerous or unhealthy property conditions.

Bottom line

The Commonwealth Court’s holding in Rivera II does not preclude local governments from conducting proactive, regular inspections of residential rental properties to identify and abate dangerous or unhealthy conditions. Municipalities that are considering adopting or amending a PRI ordinance should:

1. Require the passing of an inspection as a precondition to the issuance or renewal of a rental license. If a landlord or tenant refuses to give an inspector access, the only consequence should be the revocation or non-renewal of an existing license or the refusal to issue a new one.
2. Ensure that tenants are given adequate notice of the inspection and that the scope is limited to identifying potentially dangerous or unhealthy physical conditions. Avoid giving building code inspectors responsibilities and access beyond what is necessary to ensure that rental properties are maintained in safe and healthy condition.

[1]Borough of Pottstown Municipal Code, Ch. 11 Pt. 2, Registration and Licensing of Residential Rental Units.

[2] Camara at 537.

[3] See Simpson v. City of New Castle, 740 A.2d 287, 290-91 (Pa. Cmwlth. 1999).

[4] Borough of Pottstown Municipal Code, Ch. 11 §203(1)(I)(3) and §206(1).

[5] City of Meadville Administrative Code, Residential Rental Registration and Licensing §327.11.

[6] See Rivera II, slip op. at 24, fn 10 (“Tenants’ challenge, and consequently our holding, is limited to the Borough’s Code provisions authorizing administrative warrants to conduct biennial inspections.”)

[7] Borough of Pottstown Municipal Code, Ch. 11 §202 and §203J(1).

[8] Rivera, et al. v. Borough of Pottstown, et al., 722 C.D. 2019 (Pa. Cmwlth. January 6, 2020) (“Rivera I”), slip op. at 3.

[9] Id.

[10] Rivera, et al. v. Borough of Pottstown, et al., 190 & 224 C.D. 2024 (C.P. Montgomery County. April 8, 2024), Slip Op. p. 7.

[11] Id., p. 18.

[12]Rivera II, slip op. at 24, fn 11.

[13] See Perry v. Sindermann, 408 U.S. 593, 597 (1972) (“even though a person has no 'right' to a valuable governmental benefit and even though the government may deny him the benefit for any number of reasons … [i]t may not deny a benefit to a person on a basis that infringes his constitutionally protected interests.”]

[14] See, e.g., Koontz v. St. Johns River Water Mgmt. Dist., 570 U.S. 595, 604 (2013).

[15] Id.