Comptroller Recommends Changes to How City Enforces Heating Requirements

A recent report highlights the city’s failure to adequately address heat complaints.

In January, on the one-year anniversary of the tragic Twin Parks development fire in the Bronx, the Office of the NYC Comptroller released a report called “Turn Up the Heat,” which looked at the city’s efforts in addressing heat complaints. Last year’s fire took the lives of 17 New Yorkers including eight children, and injured dozens. Since the fire, much attention has been directed to the speed at which the fire spread and the lack of self-closing doors in the building. An open door provides a source of air to a fire. And closed doors limit the spread of smoke and oxygen available for combustion.

The comptroller’s report seeks to direct attention to another underlying factor. The fire at Twin Parks broke out after a malfunctioning electric heater caught fire. As a result, the report highlights the lack of adequate heat as an underlying condition that continues across New York City and urges the city to do more to address the problem of tenants living in chronically cold apartments. The report finds that interventions such as issuing violations, starting litigation, and making emergency repairs are effective in addressing heat complaints, but the city too often fails to apply them.

We’ll review owners’ heat and hot water obligations, how the DHCR may award a rent reduction for lack of heat, and details of the heat code enforcement process. We’ll go over the various interventions and methods HPD may use in addressing heat complaints and the report’s recommendations to enhance the city’s response to heat complaints.

Heat & Hot Water Requirements

By law, building owners are legally required to provide heat and hot water to their tenants. Hot water must be provided 365 days per year at a constant minimum temperature of 120 degrees Fahrenheit. And heat must be provided between Oct. 1 and May 31—“heat season”—under the following conditions:

Day. Between the hours of 6 a.m. and 10 p.m., if the outside temperature falls below 55 degrees, the inside temperature is required to be at least 68 degrees Fahrenheit; and

Night. Between the hours of 10 p.m. and 6 a.m., the inside temperature is required to be at least 62 degrees Fahrenheit. Local Law 86 of 2017 removed the outdoor temperature threshold for overnight heating. Owners had been required to heat buildings overnight when the outside temperature fell below 40 degrees. Now, regardless of the outside temperatures, buildings are required to heat units to 62 degrees during overnight hours in heat season.

Rent Reductions for Lack of Heat & Hot Water

The DHCR is authorized to reduce the rent of any rent-regulated apartment in New York City when required heat and hot water services are not maintained. Tenants may file a “Failure To Provide Heat And/Or Hot Water—Tenant Application For Rent Reduction” (DHCR Form HHW-1). The complaint for an individual apartment may also be submitted online at www.hcr.ny.gov.

If more than one tenant wishes to file a complaint, the tenants must attach a schedule to the HHW-1 form or file an “Application For A Rent Reduction Based Upon Decreased Building-Wide Service(s)” (DHCR Form RA-84). Applications based on lack of adequate heat or hot water must be accompanied by a report from the appropriate city agency finding such lack of adequate heat or hot water. If the DHCR finds that the owner failed to provide adequate heat or hot water, it will order a rent reduction for rent-stabilized apartments, and may do so for rent-controlled apartments, and will prohibit the owner from collecting any additional rent increases until the service is restored.

Rent-controlled and rent-stabilized tenants in New York City with heat and/or hot water complaints will call 311, and the heat code enforcement process begins as detailed below. If a tenant receives a rent reduction from the DHCR and receives another abatement or a rent credit because of the same conditions, the tenant can’t get both benefits at the same time.

Heat Code Enforcement Process

When a New York City tenant is not receiving adequate heat and has been unsuccessful in getting the situation resolved, they typically call 311. Once a complaint for a lack of heat is received, it’s automatically routed to HPD’s Integrated Information System (HPDInfo), and the owner of the building receives an automated call that instructs them to restore the service.

When multiple tenants in the same building call 311 to complain about a lack of adequate heat, their complaints are linked, and the issue is treated as a building-wide heat outage. Complaints from numerous residents are treated as a single complaint and are not investigated separately. As a result, all duplicate complaints are closed when the “initial” complaint is closed.

Following building owner notification, HPD reaches out to the resident of the initial complaint to determine if the complaint has been resolved. If the tenant states that heat has been restored, the complaint is closed. If the tenant is unable to be reached or states that the condition hasn’t been corrected, the complaint is routed to the borough office and an inspector is sent to the property to investigate.

Once an inspector arrives at the building and records their inspection in HPD’s internal database, the initial complaint and all associated duplicate complaints are automatically closed. If an inspector can’t gain access to the apartment of the initial complainant, they’ll attempt to access other units in the building. If they’re unable to gain access to any apartment in the building, the inspector leaves a “no access” card, which notes the time of their attempted inspection. The complaint is closed, and no violation is issued.

Violations. However, if an inspector gains access and determines that the temperature is below the legally required level, the owner of the building will be issued a Notice of Violation (NOV). Heat violations are Class C violations, meaning they are considered immediately hazardous and must be addressed by the owner within 24 hours.

All other Class C violations must be corrected within 21 days, but heat and hot water violations must be corrected by the owner within 24 hours. After an owner addresses the conditions, they can self-certify that they’ve corrected the violation through a paper process or through the city’s eCertification system. Both methods require the owner to provide contact information for the employee or vendor who corrected the condition and to certify that the information provided is true and correct. If an owner has certified correction of the heat violation within the 24-hour time period, they can submit a payment of $250 plus a minimal processing fee to satisfy the civil penalties owed and close the violation.

The system provides a warning that HPD may conduct a reinspection in order to determine that the violation has been corrected as certified and notifies owners that false certification may result in criminal penalties or fines up to $1,000 per violation. HPD indicates that they reinspect a certain number of B and C violations as a check on false certification.

Litigation. HPD may initiate legal action in Housing Court to pursue additional enforcement or to collect unpaid civil penalties. According to the report, during the 2017 to 2021 heat seasons, HPD initiated 10,486 cases against owners for failure to provide adequate heat in 8,126 unique buildings. During the same period, violations were issued to 11,932 unique buildings, indicating that HPD pursued litigation against 68 percent of the owners of buildings in which heat violations were issued. A $200 inspection fee may be imposed if a third or subsequent inspection within one heat season results in a violation issued for a lack of heat or hot water.

Emergency Repair Program. HPD maintenance staff may also correct the conditions, or the city may contract with prequalified professionals to make the repairs through the Emergency Repair Program (ERP). The cost of the repairs is billed to the owner through the Department of Finance. If the owner fails to pay after 60 days, the fines can be placed as a lien against the building. According to the report, ERP repairs related to a heating system were made in 7,330 buildings between the 2017 and 2020 heat seasons.

Heat Sensor Program. Another HPD enforcement mechanism to get owners to comply with heat requirements is the Heat Sensor Program. Local Law 18 of 2020 requires HPD to identify 50 buildings every two years that have a significant history of heat complaints and violations. The owners of those buildings are required to install a heat sensor in the living room of every unit in the building by the beginning of the heat season in which the property is selected for the program. Tenants can opt out of the program if they so wish after they are notified by the owner.

In addition to collecting data on the temperature of the apartment, HPD conducts an inspection of the building every two weeks, regardless of whether any heat complaints are made by tenants. The building remains in the program for four years. However, an owner may request to be discharged from the program sooner if they can demonstrate that they’ve taken permanent action to improve the provision of heat, or if HPD didn’t issue any violations in the preceding heat season. HPD may also elect to cease the biweekly inspections if no violations are found by Jan. 31.

According to the report, the 2022 update to the 2019 New York State Comptroller’s audit of the city’s heat code enforcement system found that the effectiveness of this program has been limited by owners’ failure to comply. It noted that 56 percent of the buildings in the Bronx (10 out of 18) did not install the heat sensors required by the law.

Key Findings & Recommendations

The report finds that persistent heat issues are concentrated in a relatively small percentage of buildings. Between 2017 and 2021, there were 1,077 buildings in New York City in which tenants complained about a lack of heat more than five times each heat season. And those 1,077 buildings account for just 1.5 percent of buildings in which tenants reported heat issues but represent a disproportionate share (30%) of 311 heat complaints. And over 25 percent of these buildings (274 buildings), didn’t have any violations recorded against them, indicating the city didn’t take any enforcement action related to a lack of heat.

In addition, the report found that heat complaints and violations are not equally distributed across the city but concentrated in the Northwest and South Bronx, Central Brooklyn, and Northern Manhattan. Also, the report concluded the city’s active strategies for addressing heat complaints are generally effective—when they are used:

• The issuance of violations to a building resulted in a 47 percent average drop in the number of heat complaints in the following heat season.
• Litigation correlated to a 45 percent average drop in the number of heat complaints in the following year.
• The Emergency Repair Program correlated with a 38 percent average drop in the number of heat complaints in the following year.
• HPD’s Heat Sensor Program resulted in a 54 percent average drop (62 percent median) in the number of heat complaints in the years after heat sensors were installed, compared to the three prior years.

These enforcement strategies are not deployed in many eligible cases, however. So, with these findings in mind, the Office of the Comptroller made the following recommendations to help avoid future tragedies like Twin Parks:

Use data and technology to inform and prioritize inspections, with a focus on buildings with persistent heat complaints. The report recommends providing code inspectors with comprehensive information about the history of heat complaints of each building they inspect. This should include the number of complaints made in the current and previous heat seasons and from which apartments and during which time of day. And for buildings with persistent heat complaints, the report recommends passing Int. 434 of 2022 (sponsored by Council Member Sanchez), which expands the Heat Sensor Program and enforces owner compliance, and consider covering all buildings with persistent heat complaints by the Heat Sensor Program. Also, allow tenants living in buildings with a history of persistent heat complaints to schedule inspections within a window of time in which it is typically most cold in their apartments. The report says these inspections should not trigger owner notification, and tenants should be allowed to schedule them overnight.

Conduct comprehensive site inspections and identify owners’ willingness to comply. Another recommendation is to conduct joint HPD and DOB inspections of central heating and distributions systems in buildings with persistent heat complaints. This inspection should seek to determine the causes of the outage and be a guiding document for HPD’s enforcement approach.

The report recommends agencies contact the owner of the property to determine the barriers impeding their ability to consistently provide an adequate supply of heat. Where owners are willing to cooperate, they should make referrals to city and state programs that provide resources and oversight to achieve repairs.

Expand proactive code enforcement and targeted escalation. The report recommends using the Emergency Repair Program (ERP) or the 7A program, in appropriate instances, to make comprehensive repairs needed to ensure the adequate supply of heat to tenants if landlords don’t meet milestones that demonstrate progress. Through the 7A program, administrators are appointed by the court (pursuant to New York State law) to operate privately owned buildings that have conditions that are dangerous to the tenants’ life, health, and safety. The administrators act under court order to collect rents and use the money to provide essential services to the tenants and make necessary repairs. Experienced housing organizations, rather than individuals, are selected to provide 7A management services.

Another recommendation is to amend the rules enacting Local Law 6 of 2013 (which allows HPD to issue an order requiring a building owner to correct underlying conditions in a building that have caused or are causing a violation of the Housing Maintenance Code), either through HPD-initiated rule amendment, or City Council legislation, to give HPD the power and responsibility to issue an administrative order to owners to correct underlying conditions that are causing heat violations.

The report also recommends passing Int. 583 of 2022 (sponsored by Public Advocate Jumaane Williams), which would increase the penalties for many Housing Maintenance Code violations and would require HPD to create an annual certification of correction watchlist. HPD would be required to re-inspect any violation to ensure that it was properly addressed by the owner prior to resolution (currently, owner self-certification is allowed).