Q&A on HPD's Alternative Enforcement Program

Mayor Bill de Blasio recently announced that 250 apartment buildings have been placed in the Department of Housing Preservation and Development’s (HPD’s) Alternative Enforcement Program (AEP). The AEP was established in 2007 with the New York City Safe Housing Law (Local Law No. 29 of 2007). This law called for an annual list of different multiple dwellings with high counts of the most serious building code violations based on a broad set of criteria, including paid or unpaid emergency repair charges. Additional financing from Mayor de Blasio and the New York City Council in 2014 allowed for an increase in the number of buildings in the annual round, from 200 to 250 buildings targeted a year. The funding allowed for increased AEP staff and an increase in emergency repairs that can be made by HPD.

This is the 11th year of the AEP program, and this year’s 250 buildings are home to 3,970 families and have a combined total of 26,301 housing code violations. Specifically, the 250 buildings in Round 11 have a total of 4,859 immediately hazardous (class C) violations, 21,442 hazardous (class B) violations, and 7,602 non-hazardous (class A) violations. Immediately hazardous violations include inadequate fire exits, evidence of rodents, lead-based paint, and lack of heat, hot water, electricity, or gas. Class B hazardous violations are repair conditions, such as leaks or holes in plaster or drywall. Non-hazardous, or class A, include more minor leaks and chipping or peeling paint when no children under the age of 6 live in the home.

Inclusion in this year’s list for AEP means that each building has enough health and safety code violations to allow for enhanced enforcement by HPD, including roof to cellar inspections, fees, and an AEP Order to Correct underlying conditions and bring the buildings up to code. Since AEP’s inception, 1,647 buildings with 22,033 apartments have been repaired, and more than $74 million in repair costs have been recovered by HPD. The following are some common questions owners have about the AEP.

Q Will owners be notified if their building is entered into the AEP?

A Yes, the last validly registered owner and managing agent of multiple dwellings that are identified for participation will be provided with notice of participation and information on how to be discharged within the first four months. And it’s important to note that “participation” is not optional.

Q What must owners do in order to have their building discharged from the AEP within the first four months?

A To be discharged from the program, an owner must act affirmatively to demonstrate that conditions at the property are improving. The owner must perform work to correct:

• All heat and hot water violations;
• All class C violations related to mold;
• A minimum of 80 percent of class B violations related to mold;
• A minimum of 80 percent of violations related to vermin; and
• A minimum of 80 percent of all other class B and C violations.

Additionally:

• If an AEP Order to Correct is issued and requires system replacements, such as a roof or heating plant replacement, the owner must perform the required system replacements;
• If there is an infestation, the owner must also submit a pest management plan to the NYC Department of Health and Mental Hygiene;
• The owner must pay all outstanding fees and charges, including liens, for inspections and work performed by HPD or enter into an agreement with the Department of Finance to pay such charges and liens; and
• The owner must submit a current and valid registration statement.

Q What criteria will HPD use to identify distressed buildings that will be selected for participation in AEP?

A The criteria for identifying the multiple dwellings that will participate in the AEP are set forth in the law and include the number of class B hazardous and class C immediately hazardous violations issued by HPD, as well as the amount of emergency repair charges incurred by HPD.

To be selected for this year’s list, buildings with 15 or more units must have a ratio of three or more open class B and class C violations per dwelling unit issued in the past five years, and paid or unpaid ERP charges equal to or more than $2,500 incurred in the past five years as of Jan. 30, 2017.

Buildings with between three and 14 units must have a ratio of five or more class B and class C violations per dwelling unit issued in the past five years and paid or unpaid ERP charges equal to or less than $5,000 incurred in the past five years as of Jan. 30, 2017.

The buildings selected must be ranked so that those with the highest paid or unpaid ERP charges in the past five years are selected first. No more than 25 buildings with fewer than six units can be selected.

If there aren’t enough buildings that meet the above criteria, HPD may select the remainder of the buildings from those that have six or more units that have a ratio of four or more open class B or class C violations per dwelling unit issued in the past five years. The buildings selected must be ranked so that those with the highest number of open hazardous and immediately hazardous violations issued in the past five years are selected first.

Q What is an AEP Order to Correct?

A The AEP Order to Correct is an Administrative Order that will list the underlying conditions that the owner must correct. The AEP Order to Correct will be mailed to the owner, posted at the building, and filed with the County Clerk’s Office.

Q What will happen if the owner doesn’t comply with the AEP Order to Correct and doesn’t correct the underlying conditions?

A HPD may hire a contractor to make the repairs and will bill the owner. Failure to pay the bill may result in a lien being placed against the property.

Q When correcting mold and vermin violations, does the law require that owners use specific work practices?

A Yes, mold and vermin violations in AEP buildings must be corrected using specific work practices detailed in the law.

When correcting mold violations owners must investigate and correct identified moisture problems; provide occupants with a copy of the Department of Health and Mental Hygiene’s brochure about mold; clean mold growth using soap or detergent and water and not bleach or biocide solutions; remove or securely cover with plastic sheeting any difficult to clean surfaces or items in the immediate work area; perform mold removal work in a manner that minimizes the dispersion of dust and debris; discard used materials using sealed heavy-duty plastic bags and clean visible dust from the mold removal work using wet cleaning methods or HEPA vacuuming; and document all corrective actions taken to correct the mold violations.

For correcting vermin violations, owners must provide occupants with a copy of the Department of Health and Mental Hygiene’s brochure on controlling pests safely; request the occupants support the pest management treatment by preparing the kitchen, bathroom, and other rooms and be available to listen to advice on how to maintain pest-free conditions; utilize pesticide applications or devices as permitted by state and federal law; caulk and seal small holes less than four inches in diameter as well as cracks and crevices in or between walls, cabinets, floors, and other locations where vermin may gain access; HEPA vacuum in kitchens and bathrooms, including in cracks, crevices, and appliances; and document all corrective actions taken to correct the vermin violations.

Q Will tenants be notified if their building is identified for participation in the AEP?

A Yes, HPD will post a notice to all tenants notifying them of HPD’s identification of the property for participation in the AEP. Tenants will also be notified if and when HPD will perform repair work and if and when the building is discharged.

Q What fees may HPD impose on multiple dwellings participating in the AEP?

A Multiple dwellings that are selected to participate in the AEP and are not discharged within the first four months of the initial notice may be subject to the following fees:

• $500 per dwelling unit every six months, beginning on the date of the building-wide inspection, with a maximum total fee of $1,000 per dwelling unit during participation in the AEP.
• $200 for any complaint inspection performed in the subject property that results in the issuance of a class B or C violation.
• $100 for each re-inspection pursuant to a certification of correction of violation(s) submitted to HPD where HPD finds one or more violations haven’t been corrected.

Failure to pay these fees may result in a lien or liens to be filed against the subject property pursuant to Housing Maintenance Code Section 27-2153(q).

Q Will tenants be relocated while HPD is performing repairs?

A No, HPD doesn’t intend to relocate tenants while performing any necessary repair work.

Q What happens if HPD has to do either emergency repair or building system replacements?

A Because New York City is subject to laws concerning procurement, contracting, wages, and other matters, any repair work done will probably be significantly more expensive than the price an owner could obtain if the owner contracted for the work. Expenses incurred by the city will be billed to the owner, and if the owner fails to pay, the city will file a tax lien against the property.

Q How can owners avoid having their property selected for participation in AEP?

A You can avoid AEP participation by properly maintaining your building, submitting a current and valid property registration to HPD, and correcting and certifying all HPD violations. In order to have overdue corrected violations removed from HPD records, you must request with your Borough Service Center that HPD perform a Dismissal Request Inspection.

The form to request a dismissal request inspection can be found at http://www1.nyc.gov/assets/hpd/downloads/pdf/compliance/dismissal-request-form.pdf. And the Borough Service Centers’ contact information is as follows:

• Manhattan: 94 Old Broadway, 7th Fl., New York, NY 10027; (212) 863-5030
• Bronx: 1932 Arthur Ave., 3rd Fl., Bronx, NY 10457; (212) 863-7050
• Brooklyn: 701 Euclid Ave., Brooklyn, NY 11208 or 210 Joralemon St., Rm. # 809, Brooklyn, NY 11201; (212) 863-6620 or (212) 863-8060
• Queens: 120-55 Queens Blvd., 1st Fl., Kew Gardens, NY 11424; (212) 863-5990
• Staten Island: Borough Hall, 10 Richmond Terrace, 2nd Fl., St. George, NY 10301; (212) 863-8100