Drawing the Line: Code Enforcement Authority on Private Property

By McKaia Dykema

Safe and vibrant communities don’t maintain themselves. Code inspectors play an important role in ensuring that local standards and regulations are upheld, oftentimes balancing community expectations with the rights of individual property owners. For city inspectors, understanding and respecting constitutional boundaries is essential. Entering private property without proper authority risks legal challenges, undermines public trust, and may even jeopardize enforcement actions. Inspectors may observe and document code violations without a judicially authorized search warrant in many cases, but they must take care to follow the legal limits on where they can and cannot go.

The basic principle: Expectation of privacy

Property owners have a constitutional right to privacy under the Fourth and Fourteenth Amendments. The U.S. Supreme Court has held that routine code inspections of private property qualify as “searches” under the Fourth Amendment, meaning that protections against unreasonable searches and seizures apply.

Property owners therefore have a reasonable expectation of privacy, though not all parts of a property carry the same level of protection. Inspectors should think in terms of three categories: interior areas, exterior areas, and conditions in plain view.

Interior areas: Highest level of privacy

Generally, the strongest privacy protections apply inside the home. Entry for inspection requires either an administrative search warrant or the property owner’s consent.

Consent is often the most common and simplest basis for legal code inspections of interior areas. If the property owner or occupant voluntarily agrees, no warrant is necessary. However, consent must be freely and voluntarily given, and inspectors cannot lawfully force entry if it is refused. A best practice is to confirm consent in writing before going inside.

Exterior areas: Varying levels of privacy

Inspections more frequently involve the exterior of a property. While the interior receives the highest protection, exterior spaces carry varying levels of privacy.

For example, the area immediately surrounding and associated with the home — known as the curtilage — is protected under the Fourth Amendment. Curtilage may include front, back, and side yards; free-standing structures; patios; decks; and porches.

By contrast, the Supreme Court established the open fields doctrine, which holds that large tracts of land or areas not intimately associated with the property are not protected by the Fourth Amendment reasonable expectation of privacy. These areas, such as wooded lots or unused acreage, may be inspected without violating privacy rights.

Plain view: No privacy protections

Courts have long held that conditions visible from a public vantage point, such as a street or sidewalk, may be observed and documented without a warrant. Inspectors may also lawfully observe and record code violations from a neighboring property if the neighbor provides permission. Common examples of plain view violations include noxious weeds, overgrown grass, junk accumulation, and excessive noise.

Inspectors may also approach the front door using the areas “generally made accessible to visitors.” This includes walkways, driveways, and similar access points. However, inspectors should restrict their movements and their documentation to those areas and avoid entering parts of the property where a typical visitor would not go. Areas not commonly used by delivery workers, solicitors, or neighbors are far more likely to be constitutionally protected.

Recent decision

A recent Minnesota case underscores the continued importance of the plain view doctrine. In City of Brooklyn Park v. Doleman, the city cited a property owner for violations, including improper storage of firewood. The owner challenged the citation by claiming the photographs were taken from the curtilage of his property (the private area immediately surrounding the home), an area protected by the Fourth Amendment.

The Minnesota Court of Appeals disagreed, holding that because at least one stack of firewood was visible from a public street, no unlawful search occurred. The decision confirms that code inspectors may rely on what can be seen from a public vantage point as the basis for violations.

The bottom line

Constitutional privacy protections draw important lines for city inspectors. Inspectors can freely observe conditions in plain view from public spaces or areas with no reasonable expectation of privacy, such as from the walkway to the front door. Entry into the interiors or curtilage, however, typically requires either the occupant’s consent or a search warrant.

For city officials, respecting these limits preserves the legitimacy and effectiveness of code enforcement. By working within constitutional boundaries, inspectors help to ensure communities remain safe and livable while upholding the fundamental liberties of property owners. Because every situation is unique, city staff should check with their city attorney or legal representative when questions arise. This article is intended only as a general overview and should not be relied on as specific legal advice.

McKaia Dykema is an attorney at Kennedy & Graven (kennedy-graven.com). Kennedy & Graven is a member of the League’s Business Leadership Council (lmc.org/sponsors).