By Adam Leitman Bailey and Dov Treiman
Certificate of No Harassment
The obtainment of a certificate of no harassment is the gateway into turning a highly regulated, alteration-prohibited building into a free-market class A multiple dwelling. It should be noted that even after a certificate is granted, any current tenants retain their rent-regulated status, but vacant apartments are no longer rent regulated and can be rented as free-market apartments once construction into Class A apartments has been completed.
An owner’s ability to convert or demolish an SRO is also contingent upon the owner receiving a CONH from the New York City Department of Housing Preservation and Development (HPD) under Admin. Code §27-2093, unless HPD grants the owner a waiver, or exemption.8 Harassment is defined as the act to evict, or attempt to evict any permanent tenant by engaging in conduct that interferes with the tenant’s enjoyment of the premises, or engaging in, or threatening to engage in any other conduct that would induce the tenants to vacate the premises.9
In order to obtain a CONH, the owner of the SRO building must apply to HPD. Upon receiving the application, the commissioner publishes notice for seven days to notify the occupants, if any, and the owner that an investigation will commence. This gives the occupants 30 days to give comments to HPD regarding their living conditions, specifically whether the occupant feels that a form of harassment has taken place. Importantly, the investigation looks to the three years prior to the application to determine whether harassment has occurred, and all occupants, current and former, are able to come forth to allege harassment.
Harassment hearings take place before the Office of Administrative Trials and Hearings (OATH) without the formal rules of evidence.10 Unless the owner has obtained affidavits from all present and findable recent tenants that no harassment has taken place, the bulk of these hearings deny issuing the CONH.11
Upon the conclusion of the comment period and investigation, the commissioner may grant the CONH, request a hearing to determine if harassment has occurred, or deny the CONH outright, without a hearing. Moreover, the commissioner has the right to rescind or suspend any CONH if there is a reasonable belief that harassment has occurred after the granting of the CONH, but prior to “substantial work beginning.”
Denial of the CONH results in the owner being prohibited from acting to convert, or demolish the building for 36 months, at which point the owner would be able to submit another application.12 Absent the above described affidavits, CONHs on such reapplications are exceedingly rare. Martha Washington Tenants Ass’n v.
Roberts,13 holds that a hearing on an application for a CONH is not mandatory so long as HPD conducts an investigation of the tenant’s charge of harassment. In judicial review of an adverse finding, the owner would have to demonstrate to the court that the agency was arbitrary and capricious or was unsupported by substantial evidence—14an exceedingly difficult standard to satisfy.
The city states that it takes three to six months to get a CONH, but only if the application is complete. However, the city is extremely exacting as to what constitutes a complete application. Thus, if the owner cannot provide the city with the name and social security number of three years of building managers or affidavits of no harassment from the tenants for that same period, it can delay the application. If the building is of an age that it does not have a certificate of occupancy (CO), then the application will add the time it takes for the owner to get a “letter of no objection” (LNO) from the Buildings Department.
The LNO is essentially not a “letter” at all, but a document that stands in stead of a certificate. It tells HPD the legal configuration and use of the property which HPD compares to the actual use, which the application must set forth. While the city claims an LNO takes only a few days to issue, experience shows that it can take up to more than a month.
If an owner shows a good faith intention to demolish a hotel in order to build a new commercial building on the site, after offering a relocation plan, the CONH is properly issued.15 The mere fact that there are nonhazardous violations in a building seeking a CONH will grant the owner the CONH, so long as the owner can show ongoing maintenance of essential services.16