Every unauthorized invasion of private property is a trespass that can give rise to civil action.
When agency employees (city engineers, inspectors, construction crews) need to do the inspection
or rehabilitation of sewer laterals, they may enter private property only if authorized. There are
three ways gain authorization to enter private property:
1) Legal authority
2) Expressed consent
3) Implied consent
Legal authority is conferred by statute. Legal authority can vary depending on
ordinances adopted by agencies and state laws enforced by the agencies, which contain applicable provisions.
If an ordinance adopted by the agency does not confer on agency employees inherent legal authority to enter
private property, the agency may obtain required legal authority by the way of a court issued warrant (a judge
can an issue a warrant upon probable cause). If the warrant is issued, the agency employees may enter the
property without the property owner's consent. However, if such warrant is not obtained, the employees may only
enter private property through express or implied consent.
Some state laws confer specific legal authority to conduct certain inspections without a warrant.
For example, in Michigan, State Construction Code Act, Section 1 2(2) provides in part that:
“An inspector or team of inspectors, on presentation of proper credentials, may enter and inspect
the premises and construction… for purposes of insuring compliance with the building permit, the code and other
applicable laws and regulations. An inspection shall be made between 8 a.m. and 6 p.m. on business days or when
construction is actually being undertaken, except if the enforcing agency has probable cause to believe that
immediate danger to life, limb or property exists or except with permission of an owner, his agent, architect,
engineer or builder…”
Although such provision appears to give the inspector unrestricted authority to enter private property under the
above conditions, this deemed consent (probably) may be revoked by the property owner. If the owner specifically
informs the building inspector that the premises may not be inspected, then at that point, legal authority would
no longer apply, and the building inspector would have to leave the premises. However, if the refusal to allow the
required inspections is contrary to the local building code, the building inspector can proceed as though there
has been a violation of the building code.
Other state laws confer legal authority to enter private property providing a warrant has been issued. For example,
2011 Wisconsin Code. Chapter 66. General municipality law. 66.0119, provides that a "peace officer" (an agency employee)
requires, except in emergency situations, a special inspection warrant for conducting inspection on private property:
“A peace officer may apply for, obtain and execute a special inspection warrant issued under this section.
Except in cases of emergency where no special inspection warrant is required, special inspection warrants shall be
issued for inspection of personal or real properties which are not public buildings or for inspection of portions
of public buildings which are not open to the public only upon showing that consent to entry for inspection purposes
has been refused.”
In addition, state laws may confer specific legal authority for an agency to adopt an ordinance applying the law's
provisions to all dwellings of certain type in the agency. For example, in Michigan, The State Housing Law
(MCL 1 25.401 et. Seq), Sections 126(4) and 127(1)), provide for private single-family and two-family dwellings, in
emergency and non-emergency situations, that:
“An inspector or team of inspectors may request permission to enter all premises regulated by this act at
reasonable hours to undertake an inspection. Upon an emergency as defined under the rules promulgated by the enforcing
agency, the inspector or team of inspectors shall have the right to enter at any time”
“In a non-emergency situation where the owner or occupant demands a warrant for inspection of the premises, the enforcing
agency shall obtain a warrant from a court of competent jurisdiction.”
Expressed consent allows entering private property when the property owner gives expressed permission.
The homeowners sign the form (standard release form, access agreement form, etc.) which clearly and unmistakably states the
work that would be performed and under what conditions, allowing the agency employees to enter private property for that
purpose only. For example:
“The Owner(s) hereby give (his/her/their) consent to allow the City to perform the above described work on the Property
together with the right to enter upon said Property during regular business hours with all necessary laborers, materials,
and equipment for the purpose of completing the work.”
The signing of the access agreement form is usually scheduled after the agency has worked on public relations for a while
and has completed steps (letters to homeowners, open house) to inform and educate homeowners about the coming sewer lateral
inspection or rehabilitation project and explained them the importance of the work and the benefits to them.
Expressed consent is limited by the fact that it may be revoked at any time, and that people operating upon such consent must
leave the property when it is revoked.
Implied consent allows for consent to be implied from the homeowner's conduct, from custom, or from
the circumstances. For example, consent may be implied if the homeowner is unavailable to give consent and immediate action
is necessary to save a life or prevent a serious injury. A person who enters a public area (easement) in a reasonable time
and manner has the implied consent of the owner and his action does not amount to trespass. However, consent cannot be implied
when the property owner has outwardly evidenced an intent that consent is not given, such as a "do not trespass" or "keep out" sign.
Inspection and repair of sewer laterals involve not only issues concerning access to private property but also potential liability
for personal injury or property damage resulting from performance of such work on private property. The most popular approaches in addressing liabilities are:
(1) The use of special permits that the homeowners are given to sign; or
(2) By directing homeowners to select contractors and oversee the construction activities on their property.
Private Sewer Lateral – Definition and Why Is It Important?
Private Sewer Lateral is defined as a portion of sewer lateral which is privately owned
(owned by a property owner, homeowner). Generally speaking, the private ownership of sewer laterals can extend
(a) from the house to the property line,
(b) from the house to the mainline excluding the connection to the mainline, or
(c) from the house to the mainline including the connection to the mainline.
The definition varies between agencies and sometimes even between laterals within the same agency.
The definition is important because it typically delineates financial responsibilities for the inspection,
repair and maintenance of sewer laterals, and the homeowner typically has to pay only for work performed on
the portion of lateral he owns while the agency pays for the work performed on the remaining portion which is
publicly owned. In some agencies however, the homeowner is responsible to pay for work on the entire lateral
even if the private ownership ends at the property line. The municipal code sections related to sewage disposal
(sewer ordinances) should clarify the ownership, maintenance and repair responsibilities of sewer laterals
within a particular sewer agency.
Financing and Funding Options for Sewer Lateral Inspection/Rehabilitation
There are three possible approaches in financing sewer lateral inspection/rehabilitation projects:
1) homeowners pay,
2) the agency pays, and
3) homeowners and the agency share the cost.
Within these approaches, a number of funding options exist which differ in type of financial assistance
offered to the homeowners (grant, loan, cap on costs, insurance), who is eligible for it (everyone, opt-in,
income based), and work specifics (location/extent of work, type of work).
'Homeowners Pay' financing approach includes the following funding options:
None (no funding) - Homeowners use their own private funds to pay the cost in full.
Loan from the agency - Homeowners get a loan from the agency, which covers the cost in full
or in part (Zero interest, deferred payback loan is paid back at the time of house sale)
Insurance - Homeowners buy an insurance from the agency, which covers the cost in full
Incentive rebate - Homeowners use their own private funds to pay the cost in full, but get a rebate
if the project is completed within specified time
Agency Pays financing approach includes the following funding options:
Full funding - Agency pays in full for entire cost
First time funding only - Agency pays in full for entire cost but only
the first time work is done (e.g., the first time the lateral is repaired)
Hardship cases - Agency pays in full deciding on a case-by-case basis (for low-income residents)
Voluntary participation - Agency pays in full to all homeowners that volunteer to participate
in the rehabilitation program
Defect limiting - Agency pays in full for selected types of defects
Homeowners and Agency Share Cost financing approach includes the following funding options:
Split funding - Homeowners and agency share the cost equally, 50% each
Lower laterals funding - Homeowners pays for upper laterals, the agency pays for lower laterals
Lower laterals deductible - Homeowners pay for work on upper laterals in full and on lower lateral up
to a maximum cost, the agency pays the rest (when laterals are privately owned to PL)
Entire lateral deductible - Homeowners pay for work on entire lateral up to a maximum cost, the agency
pays the rest (when whole laterals are privately owned to the mainline)
Type of work deductible - Agency pays for lateral inspection and condition assessment, the homeowners
pay for lateral repair.
Defect limiting deductible - Homeowners pay for selected type of defects to a maximum cost
First time deductible - Homeowners pays for work to a maximum cost the first time the lateral is
repaired, and in full thereafter
Voluntary test and repair - Homeowners volunteer to have the lateral tested and get a specified funding
to cover repair and inspection costs.
Hardship cases deductible - Qualifying homeowners (low-income) pay to a maximum cost
Generating Public Funds for Sewer Rehabilitation Projects
Public funds that would be used for sewer lateral inspection/rehabilitation projects can be generated in
different ways, for example, existing public resources can be allocated for creating new lateral
inspection/rehabilitation programs, general obligation bonds can be issued (agencies may borrow money to
finance projects undertaken for a public purpose), property taxes can be raised, user charges (water supply
and/or wastewater collection) may be imposed on users, etc.
When May Public Funds Be Spent on Private Laterals?
State laws about spending of public funds vary considerably and should be carefully reviewed prior to
financial planning of improvement programs.
Most states have constitutional provisions that restrict the use
of public funds to expenditures for public purposes (commonly referred to as the public purpose doctrine).
However, the courts generally hold that spending of public funds on private property is justified when it is
done for a public purpose, i.e., when it yields a significant public benefit (improvements to the public
health, safety and environment) while the benefit derived by private owners is incidental.
The legislature has broad discretion to determine what is – and what is not – a public purpose (although the
exercise of such discretion is subject to judicial review) and thus allow spending of public funds on projects
that include inspection/rehabilitation of private sewer laterals.