By Adam Leitman Bailey and Dov Treiman
June 12, 2018
On Aug. 9, 2017 and in the ensuing months, becoming effective at scattered times over the ensuing year, the City Council enacted numerous provisions falling into three areas: general landlord/tenant relations, harassment, and construction and sales of properties. This article focuses on the numerous enactments related to harassment, bedbugs, and smoking, the first two of which expand tenants’ rights and the final one intended to constrict them.
Local Laws 162, 163, and 164 all expand the definition of harassment as found in New York City Administrative Code §27-2004(48) and all took effect on December 28, 2017. Local Law 184 of 2017, effective February 5, 2018, Local Law 24 of 2018, effective April 30, 2018, and Local Law 48 of 2018, effective May 11, 2018 also expanded the definition.
Under the new laws, there is now a rebuttable presumption that the landlord’s acts were intended to get the tenant to move out or otherwise waive rights [Local Law 162 of 2017], except with relation to private dwellings. [Local Law 184 of 2017] of harassment now include lying to a tenant in some manner related to the occupancy of the unit [Local Law 24 of 2018], lying about rent regulation or construction [Local Law 24 of 2018], interrupting services once where there have been repeated interruptions elsewhere in the building [Local Law 164 of 2017], repeatedly failing to cure violations [Local Law 24 of 2018], repeatedly falsely certifying the correction of violations [Local Law 24 of 2018], repeatedly engaging in construction that requires a permit without actually having such a permit [Local Law 24 of 2018], bringing one frivolous action against a tenant where there have been repeated other frivolous actions against other tenants in the building [Local Law 164 of 2017], or trying to buy out a tenant under circumstances we will discuss immediately below [Local Law 163 of 2017].
Under the new laws, it is considered harassing a tenant when one repeatedly contacts or visits the tenant at any time other than when would expect the tenant to be away at work. The tenant is not to be contacted Saturdays, Sundays, holidays, or outside of business hours. Thus, the only tenants who can be contacted are those who either work unusual hours or are out of work. However, if the tenant initiates the contact in writing, the landlord may respond, but again not during usual working hours unless the tenant’s contact says so. Thus, if the tenant, not knowing the fine points of the law, writes, “Contact me about a buyout,” the landlord is at peril if responding with the word “when?” unless that response from the landlord is made during normal business hours [Local Law 163 of 2017]. Further, while case law for the service of process takes into account commuting time (See Bass v. Blumenthal, 27 HCR 681A, NYLJ Dec. 2, 1999, 35:5 (App.T. 9th & 10th Jud. Dists.)), this ordinance does not. Under these new additions, buyout negotiations become highly hazardous for landlords, but to the consternation of tenants as well who, now having to take the initiative, weaken their hands.
Also regarded as harassment is threatening any person based on categories newly including, “such person’s actual or perceived age, race, creed, color, national origin, gender, disability, marital status, partnership status, caregiver status, uniformed service,1 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]. This expanded definition of harassment includes “threatening” people “based on age, race, creed, etc.” But it does not say threatening with what. For example, if a landlord honestly believes that younger persons require greater vigilance on the landlord’s part in collecting rent due to youth-induced forgetfulness, are such collection efforts “harassment?” Since another subdivision already says that implied threats “of force” are harassment, this means that the protected class threats are threats of some other nature than force, without specifying what.
Also included as harassment is “requesting identifying documentation for any person lawfully entitled to occupancy of such dwelling unit that would disclose the citizenship status of such person, when such person has provided the owner with a current form of government-issued personal identification.” [Local Law 48 of 2018],
While under previous law, it had been the burden of the complainant to prove that the forbidden actions taken, were for the purpose of getting tenants to vacate their apartments or give up residential rights, now, the complainant need only prove the acts themselves, being entitled to a rebuttable presumption of the forbidden intent.
Two provisions of these enactments immediately stand out as providing distinct advantages to organizations that organize the entire tenancy of a particular building—advantages over firms that only do occasional tenant representation.
27-2004(48)(b-1)(ii) enables a tenant to claim harassment for a one-shot loss of essential service if the interruption has taken place in a building where there are other interruptions of essential services, regardless of whether those other interruptions affect the complaining tenant. Obviously, someone organizing the building, is more aware of the building’s overall history than are the individual tenants. Nothing in this provision requires that the interrupted service be building-wide in nature.
27-2004(48)(d-1) enables a tenant to claim harassment for one “baseless or frivolous” court proceeding, if there have been other “baseless or frivolous” proceedings in the building, specifically ones that have not affected the complaining tenant. Tenant-organizing firms are clearly better positioned to know of such lawsuits than individual tenants are. The law has no requirement for a previous adjudication that the previous lawsuit was “baseless or frivolous.” Since the complaining tenant is not a party to the prior action, there is no collateral estoppel effect and the complaining tenant can therefore choose to relitigate the propriety of somebody else’s lawsuit afresh, even if the previous case was settled in the landlord’s favor. Under the law of unintended consequences, Owners are, by this provision, strongly disincentivized to settle a run-of-the-mill nonpayment or holdover case on any terms that do not include a clear statement that the case had some merit to it.
Effective Dec. 1, 2017, the penalties for a judicial finding of harassment are increased for repeated commencement of baseless or frivolous lawsuits against one particular tenant from one to two thousand dollars minimum for initial violations and four thousand dollars for repeatedly doing so with a ceiling of 10,000 dollars. Such relief would not preclude an award of sanctions under the existing New York Court Rule §130-1, and even disciplinary action under Rule 3.1 of the Rules of Professional Conduct.
Effective as of Nov. 6, 2017, is Local Law 69, amending NYC Administrative Code §27-2018.1 and adding §27-2018.2, dealing with bedbugs. This law applies to buildings that are three or more units, thus adding significantly to the regulatory burden of outer boroughs.
The law requires owners to provide tenants with their leases and lease renewals reports of histories of bedbugs in the building, along with posting such reports “prominently” in the building, adding to the already large assortment of lobby postings. Additionally, the law calls for electronically filing with the city an annual report with the same, thus requiring owners of buildings large and small to own and use computers.
The law does not directly set forth penalties for noncompliance. It does require that the electronic filing shall be publicly available and presumably anyone doing electronic research will find all previous reports. Therefore, anyone purchasing a multiple dwelling should, during the due diligence period, be researching these postings.
One peculiar provision of the new law is Administrative Code §27-2018.2(d), providing “Owners of multiple dwellings shall attempt to obtain the bedbug infestation history for the previous year for each dwelling unit from the tenant or owner, including whether eradication measures were employed during the previous year for a bedbug infestation.”
We believe that this provision shall be interpreted to read, “Owners of multiple dwellings shall reasonably attempt to obtain the bedbug infestation histories.” Since during the course of a year since the last report, the building may be sold, “shall reasonably attempt” places a burden of obtaining that history on the purchaser, as a condition to closing. However, since the enactment requires that HPD post the electronic reports, it may be that doing the electronic research is enough to “reasonably attempt.”
The law specifies that the history shall, at a minimum, include the building’s address, the number of units, the number of units with bed bug infestations during the previous year, the number of units in which eradication measures were employed, and the number of units with continued infestations after eradication measures were employed.
The new smoking enactment may be regarded either as expanding the rights of nonsmokers or constricting the rights of smokers.
Effective Aug. 28, 2018 is Local Law 147, dealing with smoking policies, amending NYC Administrative Code §17-502 and §17-508, and adding §17-506.1. The law has one of the broadest possible definitions of an “owner” and of a building to which the law applies—finding applications to all classes of ownership, including privately owned buildings as well as cooperatives and condominiums. Without dictating the policy, it requires all affected buildings—all Class A multiple dwellings—to adopt smoking policies. While requiring that it be incorporated in leases, it exempts from incorporation any rent regulated or publicly rented units, their tenants, and their successors. The policy affects both leases and subleases and therefore applies to both owners of a large building and to individual occupants who rent out their apartments.
In spite of the fact that a board of directors of a cooperative or a board of managers of a condominium is free to govern buildings with general wide latitude, this law requires them to vote for a smoking policy, without specifying what the smoking policy is and does not specify whether occupants of a building that has adopted such a policy shall have third-party beneficiary status to compel the building’s ownership to enforce the policy it adopts.
Under the law, it is perfectly legal for a building to adopt a policy that smoking is completely allowed except where prohibited by law.
While the law requires that the landlord specify exact locations where smoking is prohibited and permitted in and around the building, for the very reason that the law does not specify third party enforcement, the safest policy, from a legal if not marketing point of view, is one that simply allows smoking.
To the extent that the law requires enforcement of the policy, it merely requires that “the owner…shall incorporate the building’s smoking policy into any agreement to rent or lease a dwelling unit…” or “shall incorporate the building’s smoking policy into any agreement to rent or purchase the dwelling unit.” However, it also sets penalties of $100 for each instance of failing to adopt or disclose the smoking policy and specifies that those shall be the only penalties for violation.
The law does not specify whether it is sufficient that the lease now state, “it is the policy of this building that there shall be no smoking in the apartments” or that a lease must rather state, “there shall be no smoking in the apartment.”
Under one possible reading of this new ordinance, it is enough for a lease to state what the building’s policy is without requiring that the occupant actually obey the policy. However, another possible reading of the law is that the lease must both state what the building’s policy is and that it will be enforced, presumably with threat of eviction.
Unlike the bedbug history, this law does not require posting of the policy in a prominent place in the building, but allows posting as an alternative to distributing copies of it to all the occupants and maintaining records of such distribution. With stiff fines for failure to abide by these provisions, owners should be careful not to post a summary of the smoking policy, but the actual verbatim policy itself. For this reason, the policy should be written with as few words as possible and posted in as large print as possible.
Late 2017 and early 2018 proved to be one of the most prolific periods in New York City history for promulgating local laws regarding landlord-tenant relations. From at least some point of view, all of these laws were intended to expand tenant protections. However, the actual effect of such laws may well force landlords to be more strident in their actual enforcement of their rights when their rights are clear. Thus, the net benefit to tenants by these enactments is not assured.
Adam Leitman Bailey is the founding partner of Adam Leitman Bailey, P.C. Dov A. Treiman is a partner at firm.
1. While we assume that this means police, firefighters, and military, it could mean restaurant servers and doorpersons.