Avoid HPD Violations by Having Employees Routinely Check for Six Key Defects

When a Department of Housing Preservation and Development (HPD) inspector visits your building in response to a tenant’s complaint, the inspector won’t simply check the problem the tenant has complained about. The inspector will also check the tenant’s apartment for six defects that HPD considers emergency conditions. If the inspector finds any of these six defects, the HPD will issue a violation against you for them.

To avoid getting a violation for any of these six defects and to keep your building safe, it’s a good idea to have your employees do routine checks for them whenever your employees are in a tenant’s apartment. That way, you can catch and fix these defects before the HPD inspector sees them. We’ll tell you about the six defects that inspectors look for.

Defect #1: Missing or Inoperable Smoke Detectors

Each apartment should have one or more approved smoke detectors or combined smoke/carbon monoxide detectors as required by law. Under the smoke detector law, an owner must install one or more approved smoke detectors in each apartment. However, an owner doesn’t have to install smoke detectors if each apartment in a building is fully sprinklered.

An owner must also install smoke detectors in mechanical rooms, electrical switch gear rooms, and electric and telephone closets over 75 square feet in gross floor area.

In addition, per Local Law 112 of 2014, owners are required to replace smoke detectors at the expiration of their useful lives. A smoke detector installed before April 1, 2014, must be replaced at the earlier of the expiration of its useful life or April 1, 2021.

Defect #2: Missing or Inoperable Carbon Monoxide Detectors

Carbon monoxide is an odorless and highly toxic gas. In general, owners are required to provide and install at least one approved carbon monoxide detector in each dwelling unit and provide written information about how to test and maintain them. The detector must have an audible end-of-useful-life alarm. A carbon monoxide detector must be installed within 15 feet of the primary entrance to each sleeping room.

Owners must replace detectors:

During vacancies. After a tenant moves out and before a new tenant moves in, the owner must replace any detectors that have been stolen or removed or are missing or broken.

That become inoperable because of a manufacturing defect. If a detector becomes defective because of a manufacturing defect within a year of installation, the owner must replace it within 30 days “after receipt of a written notice.”

After guarantee period ends, if needed. DOB-approved carbon monoxide detectors are guaranteed by manufacturers to last for five years. If a detector still works after five years, the owner doesn’t have to replace it. But if, through no fault of the occupant, a detector no longer works after its guarantee period ends, the owner must replace it.

Upon expiration of detector’s useful life. Owners must replace carbon monoxide detectors when the time since the installation of the detector exceeds the manufacturer’s suggested useful life of the detector.

Defect #3: Missing Window Guards

Each year, young children are injured or die in falls from unguarded windows. These are preventable deaths and injuries. Owners have a responsibility to ensure that window guards are properly installed.

The window guard law requires owners to send an annual notice to tenants of multiple dwellings (buildings of three or more apartments) regarding window guards. It also requires owners to provide and properly install approved window guards on all windows, including first-floor bathrooms, windows leading onto a balcony or terrace in an apartment where a child 10 years of age or younger resides, and windows in each common area, on any floor. The exceptions to this law are windows that open onto a fire escape, and windows on the first floor that are a required secondary exit, since the fire escapes start on the second floor.

If tenants or occupants want window guards for any reason, even if there are no resident children 10 years of age or younger, the tenant can request the window guards in writing and the owner must install them. For example, occupants who have visiting grandchildren, parents who share custody, and occupants who provide child care may wish to request window guards.

Defect #4: Illegal Window Gates Installed

No apartment may have illegal window gates installed on fire escape windows. These are gates that require a key to open, installed at fire-escape windows. In case of a fire or other emergency, delay in finding or using the key can reduce a tenant’s chances of escape. They present a serious fire hazard. Even if the tenant—and not you—installed the illegal window gate, you’re the one who will get hit with an HPD violation if an inspector finds an illegal window gate installed in the tenant’s apartment.

Tenants can protect themselves with legal window gates, which lock by use of a latch system, and provide security against burglary. For these types of gates, you can check the label with the serial number on it to make sure it states that it has been approved for use in New York City.

Defect #5: Illegal Double-Cylinder Lock Installed

No apartment or building should have a double-cylinder lock on any door. This type of lock requires a key on either side, so a person leaving a locked apartment needs a key to get out. These locks are illegal because they’re hazardous. In an emergency such as a fire, someone could easily get trapped in an apartment where a key is needed to exit. Again, though the tenant—and not you—installed the illegal double-cylinder lock, you’ll get hit with an HPD violation if an inspector finds one installed on the apartment entrance door.

Defect #6: Peeling Paint

If your building has three or more apartments and was built before Jan. 1, 1960, and a child under age 6 lives in one of the apartments, make sure there’s no peeling paint in it. When HPD inspectors come to an apartment even to check on a non-lead complaint, the lead-based paint law requires them to determine whether a child under age 6 lives in the apartment.

Lead is a poison often found in old paint. Lead poisoning can cause behavior and learning problems in young children. Peeling lead-based paint is the most common cause of childhood lead poisoning. NYC banned lead-based paint in 1960, but older buildings may still contain it. Lead dust from peeling paint lands on household surfaces and toys. When children play and put their hands and toys in their mouths they can swallow lead dust. Property owners must identify and remediate lead-based paint hazards, in the apartments where there are young children, using trained workers and safe work practices. Lead-based paint hazards are presumed to exist if:

• The building was built before 1960 (or between 1960 and 1978 if the owner knows that there is lead-based paint); and
• The building has three or more apartments; and
• A child under the age of 6 lives in the apartment.

If the inspectors find there is a child under age 6 living there, they must perform a room-by-room inspection and note in the inspection report whether the paint is peeling or intact in each room. If an inspector finds peeling paint during the inspection, HPD must inspect the apartment again within 10 days of the first inspection. At the second inspection, the inspector must use a special device known as an XRF to determine whether lead-based paint is present in the apartment. If an XRF analysis can’t be performed, the paint will be presumed to be lead-based. HPD will issue a violation against you based on the presumption.

Editor’s Note: HPD inspectors will also be able to issue violations for failure to comply with Local Law 153 of 2016, which went into effect on June 4, 2017. The law requires the owner of a dwelling to provide residential tenants with a notice regarding procedures that should be followed when a gas leak is suspected. The information must be provided by:

• Delivering such notice to each tenant and prospective tenant of such dwelling (all tenant-occupied units, including one- and two-family homes) with the lease or lease renewal form for such tenant or prospective tenant; and
• Posting and maintaining a notice in a common area of the building.

HPD has issued a sample notice for use by owners and agents. It can be found by clicking http://www1.nyc.gov/assets/hpd/downloads/pdf/Owners/sample-signage-suspected-gas-leaks.pdf.

Further information: For guidance on resolving HPD violations, see our webinar recording “HPD Highlights: Navigating Violations to Resolution,” available for download here. This one-hour recording explains the best practices at every stage of the process – from notice of the initial complaint through out-of-court resolution and litigation. The recording features seasoned compliance and legal experts addressing these issues and discussing recent trends, including increased enforcement efforts and risk to your building and tenants.