From the September issue: There’s no shortage of bad actor landlord horror stories in New York City, from property owners busting down doors to sending in attack dogs. Last month, the City Council passed a slew of tenant-harassment protection bills, one of which puts the onus on landlords to prove any alleged actions — from shutting off utilities to calling a tenant late at the night — were not intended to harass and displace a tenant.
In the past, tenant activists have complained about the uphill battle they face in Housing Court, where they have had to prove the intent of landlords. But now, some critics say the new laws could encourage tenants to bring trumped-up harassment charges and seek personal monetary damages.
The law enforcing a “rebuttable presumption” of harassment would seem to turn the basic legal concept of innocent until proven guilty on its head, said real estate attorney Sherwin Belkin, who represents some of the city’s biggest rental owners. He argued that the criteria for harassment is too broad and encompasses issues landlords often can’t control, such as water leaks from adjacent buildings.
“I have a client who has been working to trace the source of a leak, not ignoring it, spending a fortune,” Belkin said. “A tenant could now say, that’s a failure to make a repair. That could be harassment.”
Many city tenants send harassment complaints to the state’s Homes and Community Renewal agency rather than taking them to local Housing Court. HCR rulings do not result in monetary damages for tenants; instead, they impose fines on landlords.
But under the new law, such complaints may now fare better in Housing Court, and that could lead to an increase in frivolous claims from tenants looking to make a quick buck, Belkin said.
Ezra Kautz, supervising attorney for the community-activist group Make the Road New York, said fears of tenants gaming the system are overblown. He noted that there are existing laws that penalize tenants for filing false harassment claims. A landlord could collect attorneys’ fees from a tenant in such a case, and for repeated offenses, a judge could impose court sanctions to prevent future claims from being filed.
“The tenant still has to prove first that the landlord took one of the listed actions such as removing the door, repeatedly cutting off hot water, commencing repeated frivolous cases and so forth,” Kautz said. “The only difference is that the tenant no longer has the additional burden of proving the landlord’s mental state in doing those things. Now, the landlord has to provide a convincing excuse for why he did the deed.”
Helen Rosenthal, a City Council member who represents the Upper West Side, supported the rebuttable presumption bill and described the challenges New Yorkers face in Housing Courts as “a Sisyphean battle.”
“Right now the Housing Court is weighted against the tenants,” she said. “Ninety percent don’t have lawyers. On top of that, it’s more often the case than not that the people who are dragged into Housing Court are people who don’t speak English very well, or who are older, or who don’t have time to invest into going to court over and over again.”
Rosenthal sponsored another bill in the package, which mandates that the Department of Buildings create an “Office of the Tenant Advocate” to focus on construction-based harassment complaints. She said that the new office would help the DOB focus on the unscrupulous landlords it has already served with building violations.
Some have questioned whether the tenant advocate office will be effective, given that the rest of the DOB’s current enforcement operation is widely considered underfunded. But Rosenthal said any necessary funding for the new office will be addressed later this year, if necessary.
The passage of the 18 tenant-harassment bills follows a string of indictments of high-profile landlords, including Steve Croman, who offered a plea deal in June and is expected to serve a year in prison. Though Croman earned a reputation as a slumlord, he was only charged with mortgage and tax-fraud offenses.
New York Attorney General Eric Schneiderman introduced a separate tenant-harassment bill in the state legislature this spring that would step up the fines imposed on bad actor landlords and broaden the definition of criminally prosecutable tenant harassment.
Lenders and investors are next on the city’s agenda. Last year, City Council members introduced a bill that would require the city’s Department of Housing Preservation and Development to maintain separate watch lists of predatory equity investors and predatory lenders, though the terms are still being negotiated. And last month, Public Advocate Letitia James added 10 lenders to her “Worst Landlords” list. “The agenda seems to be a constant mantra using the word ‘progressive’ — and ‘progressive’ seems to equate to demonizing landlords,” Belkin said.