How to Avoid Violating NYC’s Expanding ‘Tenant Harassment’ Laws

By Eileen O’Toole, Esq.

Harassment of tenants by building owners or their representatives in New York City is prohibited by a number of laws that permit tenants either to initiate complaints of harassment in court or before state agencies, or to raise harassment as a defense in eviction proceedings. In addition, owners seeking to alter or demolish buildings containing single-room occupancy units (SROs) must apply to the New York City Department of Housing Preservation and Development (HPD) for a Certificate of No Harassment (CONH) before obtaining work permits from the Department of Buildings (DOB).

We’ll explain how harassment complaints of rent-controlled and rent-stabilized tenants are handled by the New York State Division of Housing and Community Renewal (DHCR), how laws enacted by the City of New York since 2008 expand tenants’ ability to claim harassment, and how HPD’s new Pilot Program will expand CONH requirements effective Sept. 27, 2018.

Harassment Complaints Under Rent Control/Rent Stabilization Laws

Rent Stabilization and Rent Control Laws and Regulations define “harassment” as a course of action intended to force a tenant out of his or her apartment or to cause a tenant to give up rights granted under those laws, including the rights of continued occupancy and regulation under rent stabilization or rent control. Interference with a tenant’s rights includes reducing required services, engaging in baseless court proceedings, filing false documents, or making false statements to the DHCR [Rent Stabilization Code (RSC) Section 2525.5; New York City Rent & Eviction Regulations (CRER) Section 2205.1(b), (d)].

Tenants May File Harassment Complaints with DHCR. The DHCR’s long-established Enforcement Unit, staffed by attorneys, quickly reviews tenant harassment complaints filed with the DHCR on agency form RA-60H (“Tenant’s Statement of Complaint(s) – Harassment”). A complaint that clearly concerns failure to renew a lease or a decrease in services rather than harassment may result in instructions to the tenant to file a more appropriate complaint. Complaints that allege facts that could constitute harassment are assigned an “HL” docket number and a seven-day notice is mailed to the owner for submission of a written response. No specific form is required to submit the written answer. If more time to answer is needed, the owner can submit a letter requesting a short extension and any answer should be submitted as quickly as possible. The DHCR’s Enforcement Unit may also initiate a harassment complaint against owners under an “HI” docket number.

DHCR Will Attempt Resolution Through Conference. After receiving the owner’s answer, or if no answer is submitted, the DHCR generally will schedule a conference at one of its offices with the tenant, the owner, and a DHCR attorney, to discuss the matter and attempt to reach a settlement agreement. A majority of DHCR harassment complaints are resolved through settlement conferences, generally with some period of monitoring by the DHCR after the conference.

To prepare for a DHCR harassment conference, which is not a hearing or a trial, but which is investigatory in nature, the owner can assemble witnesses and written evidence in support of a claim that there has been no harassment. Either side may be represented by legal counsel at a harassment conference. DHCR harassment conferences often result in either a settlement agreement or written decision summarizing what was presented at the conference and what future action the DHCR may take.

For example, if a harassment complaint largely concerns claims of discontinued services or a need for repairs, the owner and tenant may agree to a schedule for access and repairs, which the DHCR will monitor. Or, in a case where a tenant complains of harassment because an owner has sued to evict the tenant, for example, for nonprimary residence or creating a nuisance, the DHCR may issue a decision indicating that it will wait and see what the result of the court proceeding is, and may resume proceedings in the harassment case depending on the outcome.

If the DHCR is monitoring events as a result of a harassment conference, the owner should advise the DHCR in writing of any relevant events, such as a tenant’s refusal to provide access for repairs, or a favorable decision in a court proceeding.

Unsettled Harassment Proceedings Result in Hearing. If a harassment complaint before the DHCR is not resolved through a conference because either no settlement agreement is reached or an owner is found to continue engaging in a course of conduct deemed harassment, the DHCR will proceed to a more formal investigation and conduct an administrative hearing. At a harassment hearing, the tenant(s) and owner must attend, testify, and present evidence before an administrative law judge (ALJ). Like a trial, a harassment hearing may require the parties to appear for several days before the hearing is completed, and the proceeding is recorded so that both sides may receive a transcript.

Harassment Order Freezes Rents, Bars Deregulation, Imposes Fines. If the DHCR makes a finding of harassment after a hearing, it will issue an Order of Harassment, with a letter advising the owner that a lien will be placed on the property in the County Clerk’s Office. A DHCR Harassment Order freezes rent-stabilized and rent-controlled rents until the owner (or future owner) obtains an order from the DHCR lifting the Harassment Order [see, for example, LvT #23119 at www.LandlordvTenant.com]. For example, while a Harassment Order is in effect, an owner cannot collect rent-controlled fuel cost adjustments from a rent-controlled tenant, even if that tenant wasn’t party to the harassment proceeding [see LvT #17339], and cannot deregulate a rent-stabilized apartment [see LvT #16680]. Also, while a Harassment Order is in effect, vacancy decontrol does not apply when a rent-controlled tenant vacates an apartment [CRER Section 2200.2(f)(17)].

A Harassment Order also may impose fines in an amount between $2,000 and $10,000 for a first offense, and for an amount between $10,000 and $11,000 for each subsequent offense or for a violation involving multiple tenants at a building [RSL Section 26-516(c)(2)].

Apply to Get Harassment Order Removed. A DHCR harassment lien can be removed only by an application to the Director of the DHCR’s Enforcement Unit under provisions of the RSC or CRER. The lien remains in place even if the building is sold to a new owner. The owner’s application must be in affidavit form and must state compliance with all general and specific directives and requirements in the order finding harassment. The order should be attached to the application. The application also must contain the following:

·         Evidence or information showing payments of the civil penalties levied and interest thereon;

·         A statement if any other harassment complaints have been filed against the owner and, if so, the docket numbers for the cases, addresses and dates thereof;

·         A statement that all forms of harassment have ceased;

·         A statement that all essential services have and are being provided;

·         Current addresses of all complaining tenants in the original harassment case. If the current address is not known, details should be provided as to the circumstances under which the tenant vacated the building and, if general releases were obtained, these should be submitted; and

·         The names of current occupants of the building if different than the complaining tenants.

Appeal Harassment Order. An owner can appeal a DHCR Harassment Order by filing a court petition for judicial review under CPLR Article 78. A court may reverse the DHCR’s Harassment Order if it finds that the order was arbitrary, unreasonable, irrational, or not based on substantial evidence.

Other Provisions. NYC Rent Control Regulations [CRER Section 2206.9] provide that a tenant or occupant unlawfully removed from an apartment may bring a civil court action against the landlord within two years from the date of the occurrence and may seek triple damages sustained by the unlawful removal plus costs and attorneys’ fees. These damages are defined in the regulations to include the difference between the rent paid and the rental value of a comparable apartment on the open market, as well as the cost of removing a tenant’s property.

 

Harassment of Residential Tenants Prohibited by NYC Tenant Protection Act

New York City expanded the definition of “harassment of tenants” in 2008 when it enacted Local Law 7 of 2008, known as the Tenant Protection Act of 2008 (TPA). The TPA, comprised at that time of additions to NYC’s Housing Maintenance Code (HMC) [NYC Admin. Code Section 27-2004(a)(48)], has been expanded several more times since 2008, with the most recent amendments taking effect in May 2018 [see Local Laws 81 and 84 of 2015; Local Laws 162, 163, 164, and 165 of 2017; and Local Laws 24 and 48 of 2018]. In the case of Prometheus Realty Corp. v. City of New York, an appeals court upheld the TPA as constitutional in 2010 in response to a real estate industry challenge. While owners maintained that the TPA improperly expanded the jurisdiction of the housing court, the appeals court disagreed and ruled that the housing court has the authority to enforce laws that establish and maintain housing standards [see LvT #23062].

While, prior to 2008, local law permitted NYC tenants to commence “HP” proceedings against owners in housing court for housing violations relating to the physical condition of an apartment or failure to provide essential services such as heat or hot water, the TPA created an additional housing violation for harassment in and of itself. Under the TPA, civil penalties for findings of harassment initially ranged from $1,000 to $5,000 in 2008. The minimum penalty was increased to $2,000 under Local Law 165 of 2017 [amending Admin. Code Section 27-2115(m)(2)]. In addition, the law now provides that the minimum penalty is $4,000 if there was a previous finding of harassment of a tenant by the owner within the preceding five years. The TPA mandates an award of attorney’s fees and costs to a prevailing tenant in a harassment action as well as compensatory damages. The court also may award punitive damages.

The TPA also provides that if a court dismisses three harassment allegations by a tenant over a period of 10 years, the tenant will then have to receive approval from a judge to file another harassment claim against the landlord. Landlords also may qualify for a reimbursement of attorney’s fees if a tenant harassment claim is deemed frivolous by the court.

TPA Defines Harassment of Tenants to Include a Number of Acts. The TPA defines “harassment” as an act or omission by an owner that causes or intends to cause a lawful occupant of the building to vacate the unit. There is a “rebuttable presumption” that the acts or omissions listed in the law constitute harassment. Such acts or omissions are presently defined under the TPA to include:

·         Using or threatening to use force against the tenant;

·         Interrupting or discontinuing essential services in a manner that impairs the habitability of the unit;

·         Failing to comply with a vacate order;

·         Removing a tenant’s possessions from the unit;

·         Removing a unit’s door;

·         Changing a unit’s locks without giving the tenant a key;

·         Commencing frivolous court proceedings against a tenant;

·         Offering the tenant money to vacate the unit within 180 days of receiving written notice that the tenant does not wish to vacate the unit;

·         Repeatedly contacting or visiting occupants on Saturdays, Sundays, legal holidays, or outside the hours between 9 a.m. and 5 p.m. or in such a manner that can reasonably be expected to abuse or harass the occupant;

·         Offering the tenant money to vacate the unit while threatening the tenant or using obscene language;

·         Knowingly giving the tenant false or misleading information relating to the occupancy of the unit;

·         Making false statements or misrepresentations relating to the current occupancy or rent stabilization status of a building or dwelling unit on any application or construction documents for a work permit;

·         Repeatedly failing to correct hazardous or immediately hazardous violations of the HMC or NYC Construction Codes;

·         Falsely certifying that violations of the HMC or Construction Codes have been corrected;

·         Altering a building without a permit under Construction Code Section 28-105.1;

·         Threatening any lawful occupant for discriminatory grounds covered under the NYC Human Rights Law; and

·         Improperly requesting identification from lawful occupants that would disclose citizenship status.

Tenant Buyout Law. One set of amendments to the TPA enacted under Local Law 84 of 2015 [adding Admin. Code Section 27-2004(a)(48)(f-1), (f-2), (f-3)] specifically addresses tenant buyout offers. Under the Tenant Buyout Law, it is illegal, when offering a tenant a buyout, to:

·         Use threatening, intimidating, or obscene language;

·         Talk to tenants at their place of employment without obtaining written permission from the tenant;

·         Call tenants at odd hours;

·         Provide false information to tenants;

·         Contact a tenant within six months after a tenant has asked in writing for no additional contact concerning a buyout offer; and

·         Fail to give a tenant a written statement of tenant’s rights.

The statement of tenant’s rights specifically required by the law must provide the following information:

·         The purpose of the contact and that the contact is on behalf of the owner;

·         That the tenant can reject the offer and continue to live in the dwelling unit;

·         That the tenant has a right to seek advice from an attorney and may seek information on HPD’s website about legal services; and

·         That, if the tenant advises the owner in writing that he or she does not want to be contacted about any buyout offer, the owner cannot contact the tenant about it for 180 days unless the tenant advises the owner in writing at some earlier time that the tenant is interested in discussing a buyout, or unless a court permits the owner to discuss a buyout offer with the tenant.

Failure to comply with the Tenant Buyout Law can prove costly. In November 2017, the NY State Attorney General announced a $132,000 settlement reached with a Brooklyn landlord accused of violating the Tenant Buyout Law. In that case, the landlord approached rent-stabilized tenants after purchasing buildings in Bushwick and offered them money to vacate. The Attorney General noted that, in connection with the buyout offers, the landlord failed to provide tenants with written notice of their rights as required by the law.

Tenant Buyout Law Applies to Co-op and Condo Conversions. In a “Tenant Buyout Memo” issued on July 9, 2015, the New York State Attorney General took the position that certain buyouts consummated prior to submission of a Red Herring, as well as all buyouts during review of the Red Herring violate the Martin Act. The Tenant Buyout Memo also stated that if a sponsor intends to offer buyouts, this fact must be stated in the Red Herring and Black Book, along with disclosure of tenant’s right to say no to a buyout offer.

2017 Amendments to TPA Prohibit Excess Tenant Contact. In a measure going beyond contact concerning tenant buyouts, the TPA was amended by Local Law 63 of 2017 [adding Admin. Code Section 27-2004(a)(48)(f-4)] to prohibit repeatedly contacting or visiting a tenant or occupant on Saturdays, Sundays, or legal holidays, at times outside the hours between 9 a.m. and 5 p.m. or in such a manner as can reasonably be expected to abuse or harass the tenant/occupant. The law further provides that the tenant/occupant can notify the landlord in writing that he consents to being contacted or visited at specified hours or in a specified manner, and the owner may then do so for reasons specifically authorized or mandated by law.

Recent TPA Amendments Address Housing Discrimination. The TPA was further amended by Local Law 48 of 2018 to add, effective May 17, 2018, the following to the TPA’s definition of “harassment” [Admin. Code Sections 27-2004(a)(48)(f-5), (f-6), 8-102, 8-107.1, 21-908]:

Threatening any person lawfully entitled to occupy a dwelling unit based on the person’s actual or perceived age, race, creed, color, national origin, gender, disability, marital status, partnership status, caregiver status, uniformed service, sexual orientation, alienage or citizenship status, status as a victim of domestic violence, status as a victim of sex offenses or stalking, lawful source of income or because children are, may be or would be residing in such dwelling unit.

Local Law 48 of 2018 also defines as “harassment”:

Requesting identifying documentation for any person lawfully occupying a dwelling unit that would disclose the person’s citizenship status, when the person has provided the owner with a current form of government-issued personal identification, unless such documentation is otherwise required by law or is requested for a specific and limited purpose not inconsistent with this provision of the TPA.

Tenant Harassment Prevention Task Force. New York City has created a Tenant Harassment Prevention Task Force, together with the New York State Attorney General and State, to assist low-income tenants who claim that owners are harassing them and who may be taking advantage of zoning changes. HPD currently lists the following Zip codes as subject to tenant assistance by the Task Force:

• Bronx: 10452, 10453;
• Brooklyn: 11207, 11208, 11212, 11233;
• Manhattan: 10029, 10035;
• Queens: 11101, 11354; 111358; and
• Staten Island: 10301, 10304.

Retain Records to Defend Against Harassment Claims. To defend against tenant harassment claims, owners should maintain records to show timely and proper repairs, keep proof to show that there was a good faith basis for commencing a proceeding against a tenant, and investigate prior cases when purchasing a building. In one case, an owner who commenced an eviction proceeding based on nonprimary residence defeated the tenant’s harassment claim by showing that it didn’t learn about tenant’s medical condition until more than a year after the case was commenced. And tenant’s pre-trial motion to dismiss was denied by the court, which showed that the case wasn’t frivolous [see LvT #22780].

When to Get Certificate of No Harassment

Owners must apply to HPD for a Certificate of No Harassment (CONH) before receiving a permit from DOB to perform a material alteration or demolition either of a multiple dwelling containing SRO units or of any building located in special zoning districts identified under the NYC Zoning Resolution. In general, the CONH application program requires HPD to conduct an investigation into whether harassment has occurred during a prescribed time period, and is triggered when an owner makes a permit application to DOB for a material alteration of a building.

Type of Work That Triggers CONH Requirement. A CONH generally is required for an SRO multiple dwelling where the work:

• Increases or decreases the number of dwelling units;
• Increases or decreases the number of kitchens or bathrooms;
• Alters the layout, configuration, or location or any portion of a dwelling unit;
• Alters the layout, configuration, or location or any portion of a kitchen or bathroom;
• Demolishes any dwelling unit and/or any portion of the building serving dwelling units; or
• Changes the use or occupancy of any dwelling unit and/or any portion of the building serving dwelling units.

A CONH also generally is required in a special anti-harassment zoning district where any material alteration (as defined by Zoning Resolution sections 93-90(a)(13), 93-90(b)(1), or 96-01) is contemplated.

Submission of CONH Application to HPD. A CONH application must be submitted in original and one copy on an HPD form (found with instructions at www1.nyc.gov/assets/hpd/downloads/pdf/certification-of-no-harassment-and-exemption) and filed, with the applicable filing fee, with HPD’s Housing Litigation Division, Certificate of No Harassment Unit, 100 Gold Street, Room 6P6, New York, NY 10038. Processing of a CONH application by HPD typically takes six to 12 months before the certificate or denial is issued. No docket number is assigned to the application. The application form also provides for an exemption request, if applicable. Questions about CONH applications may be addressed to HPD at (212) 863-8266.

A slightly different HPD form, and longer look-back periods, apply to CONH applications concerning buildings in the following special districts:

• The Special Clinton District;
• The Special Hudson Yards District;
• Preservation Areas P-2 of the Special Garment Center District;
• The Greenpoint-Williamsburg anti-harassment area; and
• The Special West Chelsea District.

If a submitted CONH Application is approved by HPD, the CONH is good for 36 months from the date of issuance unless revoked by a subsequent finding of harassment. If an application is denied for an SRO building, the owner is barred from applying for another CONH for 36 months from the date of denial. If denied for a building in a Special District, the owner may agree with HPD to a cure, consisting of construction of Lower Income Housing on the Zoning Lot in perpetuity equal to either 28 percent of the existing residential floor areas, or 20 percent of the floor area of the new building.

HPD’s New CONH Pilot Program Expands Coverage and Requirements. HPD has established a three-year pilot program that will significantly expand NYC’s CONH requirements. The Pilot Program, enacted under Local Law 1 of 2018, adds Admin. Code Section 27-2093.1 to NYC law and takes effect on Sept. 27, 2018. The Pilot Program will adopt the Housing Maintenance Code’s definition of “harassment,” set forth above.

The CONH Pilot Program amends requirements by:

• Expanding CONH’s protections to more buildings where tenants are at risk of harassment;
• Extending the pre-filing period from three years to five years;
• Extending the waiting period from three years to five years;
• Allowing landlords who have been denied a CONH to cure their record of harassment by providing affordable housing units.

> Covered buildings extended under Pilot Program. Before Sept. 27, 2018, CONH applied only to SROs and to any buildings located in special zoning districts. The Pilot Program law calls for HPD to compile and publish a pilot program list. The Pilot Program will extend CONH’s protections to:

• Buildings where the DHCR or any court with jurisdiction made a final determination that harassment was committed within five years before Sept. 27, 2018, or anytime on or after Sept. 27, 2018;
• Buildings that have received a full vacate order by HPD or DOB [Admin. Code 27-2139];
• Buildings that have actively participated in the Alternative Enforcement Program for more than four months since Feb. 1, 2016 [Admin. Code 27-2153]; and
• Significantly distressed buildings located in Bronx Community Districts 4, 5, and 7; Brooklyn Community Districts 3, 4, 5, and 16; and Manhattan Community Districts 9, 11, 12, and 14.

> Cure Permitted Under Pilot Program. The Pilot Program allows owners who have been denied a CONH by HPD to forgo the five-year waiting period by entering into a Cure Agreement and Restrictive Declaration with HPD. Under the terms of the cure agreement, an owner must agree to provide affordable housing in perpetuity on the Zoning Lot covering either 25 percent of the floor area of the same building in which harassment has occurred or 20 percent of the floor area of a new building in the same community district as the building in which harassment occurred.

> Pilot Program Exceptions. The Pilot Program lists several exceptions [at Admin. Code Section 285-505.3] to work requiring a CONH application. These include:

• Work solely for the purpose of either making the public areas of a building accessible to persons with disabilities without altering the configuration of dwelling/rooming units or making the interior or entrance to a dwelling/rooming unit accessible to persons with disabilities;
• Repairs, demolition, or any other work performed by a city agency or its contractor;
• Work performed on a building currently subject to a 7-A administrator; or
• Other categories of work excluded by HPD.

 Harassment Against Commercial Tenants Also Prohibited

New York City has enacted a separate law to prohibit harassment of non-residential tenants. Effective Sept. 26, 2016, the NYC Non-Residential Tenant Harassment Law [Admin. Code Sections 22-901 through 904] permits small business owners and other commercial tenants to make harassment claims, first, against landlords by demonstrating that the landlord or someone acting on behalf of the landlord has committed an act or omission “intended to cause a commercial tenant to vacate covered property or to surrender or waive any rights under a lease or other rental agreement or under applicable law in relation to such covered property.”

The law defines covered property as “any building or portion of a building (i) that is lawfully used for buying, selling or otherwise providing goods or services, or for other lawful business, commercial, professional services or manufacturing activities, and (ii) for which a certificate of occupancy authorizing residential use of such building or such portion of a building has not been issued.”

A commercial tenant claiming harassment by the landlord also must demonstrate that the landlord’s conduct consisted of at least one of 10 wrongful acts described in the law, such as improper use of force, repeated or extended interruptions of essential services, commencing frivolous court proceedings, and preventing the commercial tenant from entering the property. The law specifically excludes and does not affect a commercial landlord’s ability to lawfully terminate a tenancy, refuse to renew or extend a lease or other rental agreement, or re-enter and repossess a covered property.

A successful claim established by a commercial tenant against a landlord will result in a mandatory civil penalty of between $1,000 and $10,000. A court can also issue a restraining order forbidding a landlord from engaging in harassment and directing the landlord to ensure that no further violation occurs. The court can also direct injunctive relief, payment of compensation to the tenant, punitive damages, and reasonable attorney’s fees. As written, it is unclear whether the 2016 law covers licensees as well as commercial tenants. The law also does not address whether a commercial tenant can waive its rights or limit available remedies under the law in a lease agreement.

About the Author

Eileen O’Toole, Esq. is a partner with the New York City law firm of Borah, Goldstein, Altschuler, Nahins & Goidel, P.C., whose law practice concentrates on landlord-tenant matters. A frequent writer and lecturer on rent regulation and other real estate topics, she is also the editor of New York Landlord v. Tenant, the Insider’s monthly legal decision service, as well as the annual NYC Apartment Management Checklist, a one-stop resource for complying with the many laws and regulations affecting New York City apartment buildings. She is also the author of the forthcoming 2018 New York Rent Regulation Checklist, to be published this September by Vendome Real Estate Media.