Higher Penalties for Heat and Hot Water Violations Go into Effect

In early 2011, city council members toughened penalties on owners who violate the city's heat laws, by breaking the economic incentives for building owners who withhold heat and hot water from tenants. At the time of its passage, city records showed that more than 114,000 New Yorkers filed complaints with the city about a lack of heat or hot water during the fiscal year that ended June 2010. These figures were based on data provided by the city's Department of Housing Preservation and Development (HPD) and are considered to be conservative because the agency records complaints by building. Heat and hot water complaint calls to 311, which logs every call as an individual complaint, are much higher, totaling upwards of 175,000 a year.

We'll summarize the changes in the penalties and fees structure that went into effect in June 2012, as well as those changes that are going to be implemented in October 2012. Also, we'll give you an overview of heat and hot water requirements and the process that gets set into motion when a tenant complains about heat or hot water to the city.

Heat and Hot Water Requirements

The city Housing Maintenance Code and state Multiple Dwelling Law require building owners to provide heat and hot water to all tenants. Building owners are required to provide hot water 365 days per year at a constant minimum temperature of 120 degrees Fahrenheit. Between Oct. 1 and May 31, a period designated as “Heat Season,” building owners are also required to provide tenants with heat under the following conditions:

• 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

• Between the hours of 10 p.m. and 6 a.m., if the temperature outside falls below 40 degrees, the inside temperature is required to be at least 55 degrees Fahrenheit.

When a Tenant Complains

Tenants who are cold in their apartments should first attempt to notify the building owner, managing agent, or superintendent. If heat isn't restored, the tenant will call the city's Citizen Service Center at 311. After the city's Citizen Service Center receives a complaint, HPD attempts to contact the building's owner or managing agent to advise them that a complaint has been received.

Before an HPD code inspector is dispatched to the building, HPD may also attempt to contact the tenant to determine whether service has been restored. If service hasn't been restored, an HPD inspector is sent to the building to verify the complaint and issue the appropriate violation. In cases where owners fail to restore heat and hot water after the issuance of a violation, HPD's Emergency Repair Program (ERP) may contract with private companies to make the necessary repairs to restore essential services and bill the owner for the cost of the repairs to the property. The city will bill for the cost of the emergency repair plus related fees. Because the city is subject to laws governing contracting, wages, and other matters, emergency repair work done by the city may make such work significantly more expensive than the price the owner could obtain if he had performed or contracted for the work.

At this point, if the property owner fails to pay, the city will file a tax lien against the property. The tax lien will bear interest and may be sold or foreclosed to collect the amount the owner owes through the city's Tax Lien Sale process, even if no other tax-related charges are unpaid.

Penalties and Fees

Beginning in June 2012, pursuant to changes in the Housing Maintenance Code, the following are the new provisions regarding the penalties for heat and hot water violations:

Eligibility for payment in satisfaction of civil penalties. If a heat violation is the first such violation issued during the current or prior heat season, or a hot water violation is the first such violation issued during the current or previous calendar year, an owner may be eligible to satisfy the penalty by submitting a $250 payment with a timely Notice of Correction.

The Notice of Violation that the owner receives in the mail will clearly indicate whether the violation is eligible for payment in satisfaction of civil penalties. An owner who chooses to submit a Notice of Correction and payment in satisfaction may do so by submitting a paper Notice of Correction or by using the eCertification system on HPD's Web site, www.nyc/hpd.

The Notice of Correction indicates that the violation has been corrected by the owner or an agent or employee of the owner within 24 hours of the affixing of the notice of such violation (which is the same as the date of the inspection where the inspector identified the lack of heat and/or hot water).

The payment of $250 must be submitted with the Notice of Correction to the department within 10 days of the affixing of the violation notice. Payment can be made via credit card online, or by certified check or money order if submitting the Notice of Correction by mail. The fact that an owner is eligible to pay doesn't mean that the owner must take advantage of the option; owners may choose to not pay the $250. But if the Notice of Correction and payment aren't received within the 10-day period, then HPD may commence a proceeding for an order to correct and to recover civil penalties in Housing Court.

Inspection fee. For a third or any subsequent inspection that results in a heat violation within the same heat season (October through May) or for a third or any subsequent inspection that results in a hot water violation within a calendar year, HPD will charge a fee of $200 for the inspection. In addition to this fee, the owner is still also subject to any civil penalties that may be imposed by the Housing Court.

This fee isn't paid directly to HPD, but will be billed to the owner though the Department of Finance (DOF); the owner will see the charge on the Statement of Account from DOF on the quarterly bill following the inspection. All fees that remain unpaid shall constitute a debt recoverable from the owner and a lien upon the premises. Should the lien exceed $1,000 for more than one year, the liens may subject you to the New York City Tax Lien Sale. Through this process, the lien may be sold to a third party, who may foreclose on the property if the lien is not paid.

And, beginning in October 2012, pursuant to changes in the Housing Maintenance Code, the following changes to civil penalties become effective:

Civil penalties. If HPD commences a proceeding, the agency can seek the following penalties, from and including the date that the Notice of Violation is posted at the building until the date that the violation is corrected:

• $250-$500 dollars per day for each initial heat or hot water violation;

• $500-$1,000 per day for each subsequent violation at the same building during the same and/or the next calendar year from the initial violation or, in the case of heating violations, during the same and/or the next heat season. If the owner fails to pay the court-ordered civil penalties, HPD will enter a judgment against the owner and the property and seek to enforce that judgment.