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Wednesday, April 14, 2021

Landlord Liability for Tenant-on-Tenant Discrimination: Split in the Federal Circuits | New York Law Journal

Proposed Regulation as to Notice of Tenants’ Rights to Reasonable Modifications and Accommodations for Persons with Disabilities

We just got some guidance from the State as to a law that became effective March 2, 2021 about noticing tenants of their rights to reasonable modifications / accommodations under the Human Rights Law.  To learn about the law, read our blog from that date here. After the law was passed, it was than repealed and replaced. To learn about the repeal and replace, read our blog here


The repealed and replaced version of the law stated that "The Division of Human Rights shall promulgate regulations." 


Today, we learned about those proposed regulations, which will be set forth at 9 NYCRR 466.15 when effective. 

Some interesting highlights are:

  • The notice shall be in 14 point font;
  • The notice can be emailed; 
  • The notice can (AND SHOULD) be included in a lease; &
  • The notice "must be included with any posting, listing, advertisement, brochure, prospectus, rental application, proposed lease or other similar communication about an available housing accommodation."


The proposed regulation reads as follows:


466.15 Provision of notice by housing providers of tenants’ rights to reasonable modifications and accommodations for persons with disabilities. 

(a) Statutory Authority. Pursuant to N.Y. Executive Law section 295.5, it is a power and a duty of the Division to adopt, promulgate, amend and rescind suitable rules and regulations to carry out the provisions of the N.Y. Executive Law, article 15 (Human Rights Law) and pursuant to New York Executive Law section 170-d, the New York State Division of Human Rights “shall promulgate regulations requiring every housing provider …to provide notice to all tenants and prospective tenants … of their rights to request reasonable modifications and accommodations” as such rights are provided for in Human Rights Law sections 296.2-a(d) and section 296.18.

(b) Effective date. Executive Law section 170-d was effective March 2, 2021, pursuant to the Laws of 2021, chapter 82, section 4, by reference to the Laws of 2020, chapter 311. 

(c) Definitions. 

(1) “Housing provider” shall mean: 

(i) “the owner, lessee, sub-lessee, assignee, or managing agent of, or other person having the right to sell, rent or lease a housing accommodation, constructed or to be constructed, or any agent or employee thereof” as set forth in New York Executive Law, article 15 (hereinafter “Human Rights Law”) section 296.5; or 

(ii) “the owner, lessee, sub-lessee, assignee, or managing agent of publicly-assisted housing accommodations or other person having the right of ownership or possession of or the right to rent or lease such accommodations” as set forth in Human Rights Law section 296.2-a. 

(2) “Housing accommodation” includes “any building, structure, or portion thereof which is used or occupied or is intended, arranged or designed to be used or occupied, as the home, residence or sleeping place of one or more human beings” as set forth in Human Rights Law section 292.10. 

(3) “Publicly-assisted housing accommodations” shall include: 

(i) “public housing” as set forth in Human Rights Law section 292.10(a); 

(ii) “housing operated by housing companies under the supervision of the commissioner of housing” as set forth in Human Rights Law section 292.10(b); or 

(iii) other publicly-assisted housing as described in Human Rights Law section 292.10(c), (d) and (e). 

(4) “Property Manager” as referenced in the sample notice is an individual housing provider, or such person as the housing provider designates for the purpose of receiving requests for reasonable accommodation. 

(5) “Reasonable modifications or accommodations” shall refer to those actions required by Human Rights Law section 296.2-a(d) and Human Rights Law section 296.18, which makes it an unlawful discriminatory practice for a housing provider or publicly-assisted housing provider: 

(i) To refuse to permit, at the expense of the person with a disability, reasonable modifications of existing premises occupied or to be occupied by the said person, if the modifications may be necessary to afford the said person full enjoyment of the premises, in conformity with the provisions of the New York state uniform fire prevention and building code, except that, in the case of a rental, the landlord may, where it is reasonable to do so, condition permission for a modification on the renter’s agreeing to restore the interior of the premises to the condition that existed before the modification, reasonable wear and tear excepted.

(ii) To refuse to make reasonable accommodations in rules, policies, practices, or services, when such accommodations may be necessary to afford a person with a disability equal opportunity to use and enjoy a dwelling, including the use of an animal as a reasonable accommodation to alleviate symptoms or effects of a disability, and including reasonable modification to common use portions of the dwelling, or

(iii) In connection with the design and construction of covered multi-family dwellings for first occupancy after March thirteenth, nineteen hundred ninety-one, a failure to design and construct dwellings in accordance with the accessibility requirements of the New York state uniform fire prevention and building code, to provide that:

(a) The public use and common use portions of the dwellings are readily accessible to and usable by disabled persons with disabilities;

(b) All the doors are designed in accordance with the New York state uniform fire prevention and building code to allow passage into and within all premises and are sufficiently wide to allow passage by persons in wheelchairs; and

(c) All premises within covered multi-family dwelling units contain an accessible route into and through the dwelling; light switches, electrical outlets, thermostats, and other environmental controls are in accessible locations; there are reinforcements in the bathroom walls to allow later installation of grab bars; and there are usable kitchens and bathrooms such that an individual in a wheelchair can maneuver about the space, in conformity with the New York state uniform fire prevention and building code.

(d) Actions required by Executive Law section 170-d. 

(1) Housing providers must provide notice, as provided for in this regulation, to all tenants and prospective tenants: 

(i) within 30 days after the effective date of their tenancy; 

(ii) for current tenants, within thirty days after the effective date of Executive Law section 170-d;

(iii) for prospective tenants, see below (d)(5) regarding how to provide notice for available housing accommodations.

(2) The notice is to advise individuals of their right to request reasonable modifications and accommodations for disability pursuant to Human Rights Law section 296.2-a(d) (publicly-assisted housing) or Human Rights Law section 296.18 (private housing).

(3) Such notice shall be in writing, shall be in 14 point or other easily legible font.

(4) New and current tenants. Such notice must be provided individually to all new and current tenants, and shall be provided in the following manner: 

(i) by electronic transmission (e.g. email) if electronic transmission is available and can be directed to the individual to be notified, or

(ii) by providing a paper notice to the individual, if electronic transmission is not available, and

(iii) may be accomplished by including the notice in or with other written communications, such as a lease or other written materials routinely provided to tenants.

(iv) “Posting” of the notice, either on paper on a bulletin board, or on an electronic bulletin board or notice area, or by providing a link to such posting, shall not be sufficient notice.

(5) Notice with regard to available housing accommodations.

(i) Such notice must be included with any posting, listing, advertisement, brochure, prospectus, rental application, proposed lease or other similar communication about an available housing accommodation.

(ii) Where such communication is by electronic means other than email, the notice may be included by providing a link to a page containing the notice language. The link must be clearly identified as linking to the “Notice disclosing tenants’ rights to reasonable accommodations for persons with disabilities.” The notice must be available for printing and downloading.

(iii) Where such communication is in paper form, the notice must be included within such communication, or by providing the notice in an accompanying document.

(iv) Where such communication is sent by email, such email shall include the notice, either in the body of the email or in an attachment.

(e) Content of the required notice. The following shall be deemed sufficient notice when provided to the individual to be notified.

NOTICE DISCLOSING TENANTS’ RIGHTS TO REASONABLE ACCOMMODATIONS FOR PERSONS WITH DISABILITIES

Reasonable Accommodations

The New York State Human Rights Law requires housing providers to make reasonable accommodations or modifications to a building or living space to meet the needs of people with disabilities. 

For example, if you have a physical, mental, or medical impairment, you can ask your housing provider to make the common areas of your building accessible, or to change certain policies to meet your needs.

To request a reasonable accommodation, you should contact your property manager by calling ——— or ———, or by e-mailing ———. You will need to show your housing provider that you have a disability or health problem that interferes with your use of housing, and that your request for accommodation may be necessary to provide you equal access and opportunity to use and enjoy your housing or the amenities and services normally offered by your housing provider. If you believe that you have been denied a reasonable accommodation for your disability, or that you were denied housing or retaliated against because you requested a reasonable accommodation, you can file a complaint with the New York State Division of Human Rights as described at the end of this notice. 

Specifically, if you have a physical, mental, or medical impairment, you can request:*

Permission to change the interior of your housing unit to make it accessible (however, you are required to pay for these modifications, and in the case of a rental your housing provider may require that you restore the unit to its original condition when you move out); 

Changes to your housing provider’s rules, policies, practices, or services;

Changes to common areas of the building so you have an equal opportunity to use the building. The New York State Human Rights Law requires housing providers to pay for reasonable modifications to common use areas.

Examples of reasonable modifications and accommodations that may be requested under the New York State Human Rights Law include:

If you have a mobility impairment, your housing provider may be required to provide you with a ramp or other reasonable means to permit you to enter and exit the building.

If your doctor provides documentation that having an animal will assist with your disability, you should be permitted to have the animal in your home despite a “no pet” rule.

If you need grab bars in your bathroom, you can request permission to install them at your own expense. If your housing was built for first occupancy after March 13, 1991 and the walls need to be reinforced for grab bars, your housing provider must pay for that to be done.

If you have an impairment that requires a parking space close to your unit, you can request your housing provider to provide you with that parking space, or place you at the top of a waiting list if no adjacent spot is available.

If you have a visual impairment and require printed notices in an alternative format such as large print font, or need notices to be made available to you electronically, you can request that accommodation from your landlord.

Required Accessibility Standards

All buildings constructed for use after March 13, 1991, are required to meet the following standards:

Public and common areas must be readily accessible to and usable by persons with disabilities;

All doors must be sufficiently wide to allow passage by persons in wheelchairs; and

All multi-family buildings must contain accessible passageways, fixtures, outlets, thermostats, bathrooms, and kitchens.

If you believe that your building does not meet the required accessibility standards, you can file a complaint with the New York State Division of Human Rights.

How to File a Complaint

A complaint must be filed with the Division within one year of the alleged discriminatory act. You can find more information on your rights, and on the procedures for filing a complaint, by going to www.dhr.ny.gov, or by calling 1-888-392-3644 with questions about your rights. You can obtain a complaint form on the website, or one can be e-mailed or mailed to you. You can also call or e-mail a Division regional office. The regional offices are listed on the website.

* This Notice provides information about your rights under the New York State Human Rights Law, which applies to persons residing anywhere in New York State. Local laws may provide protections in addition to those described in this Notice, but local laws cannot decrease your protections.


You have until June 13, 2021 to comment on these proposed regulations by emailing: caroline.downey@dhr.ny.gov


Here are our comments for your inspiration:
  • The * is good, but should be additionally included at subsections (c)(5)(i) & (e) at the line “[p]ermission to change the interior of your housing unit to make it accessible (however, you are required to pay for these modifications, and in the case of a rental your housing provider may require that you restore the unit to its original condition when you move out);” 
  • (d)(5)(i) is cost prohibitive to accomplish with respect to postings, listings, and advertisements; a hyperlink address should be all that is necessary (even in printed form, not just by way of (3)(5)(ii)'s permission for electronic communications), or nothing at all for printed postings, listings, and advertisements;
  • (e) 
    • Provide for similar notices so that the notice language can be changed to identify additional rights in locales that so provide (i.e., include a line like in DHR's original notice that provided "[a]ny other notice used by a housing provider must comply with the requirements of the law.");
    • The line “[y]ou will need to show your housing provider that you have a disability or health problem,” should be expanded to explain what a housing provider can and cannot ask for as proof; 
    • The line “[i]f your doctor provides documentation that having an animal…,” should be changed to healthcare provider as a broader array of professional can provide the documentation beyond doctors. 
    • The section on “how to file a complaint,” should include the statute of limitations for a court case and that a tenant can hire a private attorney with attorneys’ fees being payable by the landlord to enforce their rights. 
Do you agree with our comments? What are your comments? 




Wednesday, March 31, 2021

Court Finds that Landlord's Agent CAN be Sued for Charging Brokerage Fee to Tenant under HSTPA

Can a landlord's agent charge a tenant its commission?

That issue is going to be decided by the New York County Supreme Court in the case of McLendon v. Kelley after the court refused to dismiss the case, but the case should already be dismissed under the Court's own reasoning.

The law that the tenant is relying on in this case to block the fee charge is called The Housing Stability and Tenant Protection Act (HSTPA) and specifically, Real Property Law 238-a(1)(a), which states as follows:

Except in instances where statutes or regulations provide for a payment, fee or charge, no landlord, lessor, sub-lessor or grantor may demand any payment, fee, or charge for the processing, review or acceptance of an application, or demand any other payment, fee or charge before or at the beginning of the tenancy, except background checks and credit checks as provided by paragraph (b) of this subdivision, provided that this subdivision shall not apply to entrance fees charged by continuing care retirement communities licensed pursuant to article forty-six or forty-six-A of the public health law, assisted living providers licensed pursuant to article forty-six-B of the public health law, adult care facilities licensed pursuant to article seven of the social services law, senior residential communities that have submitted an offering plan to the attorney general, or not-for-profit independent retirement communities that offer personal emergency response, housekeeping, transportation and meals to their residents.

In refusing to dismiss the case on this law, the Court focused on the Department of State's Guidance on the topic wherein the Department had opined "that a broker for the landlord could not collect a broker fee from a perspective tenant pursuant to the above provision." However, the Court's reasoning is in error and the broker should bring a motion to reargue / renew this application for dismissal.

Operatively, the Department of State's Guidance was withdrawn on February 10, 2020 and therefore it holds no weight in this case. To substantiate this withdrawal of Guidance, see the notation at question 5. on page 4 of this hyperlink.

More importantly, in Real Estate Bd. of New York v. New York State Department of State, the Judge issued a full injunction preventing the statute from being utilized against brokers until the Court issues a decision on REBNY's Order to Show Cause, which has not yet occurred. 

This case should therefore be dismissed.

 



NY Association of Realty Managers: Seminar on Reasonable Accommodation Notice in Rental Housing

NYARM - SEMINAR: MARCH 31, 2021

TIME: 5:30PM – 7:00PM / REGISTRATION SIGNIN @5:00PM

COST: FREE

TOPIC: REASONABLE ACCOMMODATION NOTICE IN RENTAL HOUSING

NEW YORK STATE EXECUTIVE LAW 296.2-b AND 296.18-a

MODERATOR:

  • MARGIE RUSSELL, EXECUTIVE DIRECTOR, NEW YORK ASSOCIATION OF REALTY MANAGERS
  • RONALD A. SHER, ESQ. - SEMINAR MODERATOR

I. TOPIC INTRODUCTION

  • "The ABC's of Reasonable Accommodations"
  • "A Fair Housing Primer: Accessibility & Accommodation"
  • "Reasonable Accommodation Notice - New York State Executive Law"
  • "Corporate Governance: Reasonable Accommodation Policy"
  • "Implementation of Protocols & Establishment of Procedures"
  • "Service Pets - Emotional Support Animals"
  • "The Pitfalls and Problems - Dos & Don'ts - Warnings"
  • "Avoiding Calamity, Catastrophe & Casualty - Averting Disaster"
  • "Legal Issues & Claims: Directors & Officers Coverage"
  • "Concerns & Consequences of Claims"

II. PRESENTATION - MODERATOR & PANELISTS:
III. QUESTIONS AND ANSWERS - OPEN DISCUSSION

IV. MATERIALS: (download here)
  • NYSAG - Service Animals in Public Accommodations Brochure
  • FAQ: NYC Commission of Human Rights - Emotional Support Animals
  • FAQ: USDOJ - Services Animals
  • Presentation: Accessibility Discrimination for Realty Managers – Andrew M. Lieb, Esq.
  • Presentation: Reasonable Accommodations – Carl L. Finger, Esq.
  • Presentation: Service Pets & Emotional Support Animals – Darren M. Vernon, Esq.
REGISTRATION:
  • Email Margie Russell, NYARM's Executive Director the following information: Name, Company, Position, Email
  • Zoom Waiting Room opens at 5pm on 3/31

  • Call 929 205 6099
    Login: ZOOM LINK
    Meeting ID: 995 4731 7998
    Passcode: 189986




Thursday, March 25, 2021

New Law Requiring Two Witnesses for Power of Attorney Forms

Starting on June 13, 2021, filing out a power of attorney is going to be a little more annoying.
Previously, the form just had to be signed, initialed, and dated by a principal with capacity, but now you are going to need 2 disinterested witnesses as well.
The new law, Senate Bill S888, is curiously only applicable to financial and estate planning, but why?
Its stated purpose is to provide extra protection against fraud and abuse, but how does adding 2 witnesses accomplish that?
Couldn’t you find witnesses to abuse the form too if that was your goal?
Isn’t this just another piece of lip service legislation?
Penalties are the answer, not witnesses, just saying…

UPDATE on New Tenant Disclosure Form on Reasonable Modification and Accommodation

As an update on our BLOG on the new law requiring a disclosure form on reasonable modifications and accommodations, Governor Cuomo just signed Senate Bill S867 which removes the requirement that all landlords conspicuously post the disclosure form in all vacant listings. According to the New York State Senate website, “this measure was seen as an excessive mandate on landlords and difficult to enforce uniformly.”

Also, the new law is now under Section 170-d of the Executive Law. It was previously passed under Section 296 of the New York State Human Rights Law. This change means the failure to serve the disclosure form is no longer a listed discriminatory practice under the New York State Human Rights Law. Thus, it is unclear whether any penalty or enforcement is available on the new law or if it is just another lip service law.

As to the disclosure form itself, you can now access the New York State Division of Human Rights’ published disclosure form HERE.



Thursday, March 18, 2021

Fair Housing Education Now Mandatory for Appraisers

On March 17, 2021, NYS adopted a new regulation to be effective January 1, 2022, that mandates fair housing education as a condition of license renewal for appraisers.

The following subjects and number of hours are required under this new regulation:

(A) 7 Hour Introduction to Fair Housing and Fair Lending Instruction

        (1) Fair housing, fair lending requirements, and the history of lending, 2 hours

        (2) Development of appraisal (standard 1 USPAP), 1.5 hours

        (3) Reporting of appraisal reports (standard 2 USPAP), 1.5 hours

        (4) Case Studies, 2 hours

(B) 4 Hour Update to Fair Housing and Fair Lending Instruction

        (1) Fair housing, fair lending requirements, and the history of lending, 1 hour

        (2) Development of appraisal (standard 1 USPAP), 1 hour

        (3) Reporting of appraisal reports (standard 2 USPAP), 1hour

        (4) Case Studies, 1 hour

While it may be important to have additional fair housing education, how much education on fair housing is considered enough?

Should a 7-hour course on the introduction and a 4-hour update necessary to renew a license or certification, or should it be more or less?

Do you agree with NYS or how would you do it differently if you were in charge?




Wednesday, March 17, 2021

NY Employees are Entitled to Paid Leave to Receive COVID-19 Vaccine

To further encourage mass vaccination, the Governor signed Senate Bill S2588A into law, which requires employers to provide employees with a "sufficient period of time", but not more than four (4) hours, of paid leave to receive each COVID-19 vaccine injection. The law is effective immediately and expires on December 31, 2022.


Employers must pay employees at their regular rate of pay for all hours of vaccination leave and may not require employees to first use other entitled leave (e.g. NYS Paid Sick Leave, NYC Paid Sick and Safe Leave, Employer sick leave policy). 


The law is noticeably silent on what if any verification an employer can request from an employee to prove they received the vaccine during the leave and how much notice an employee needs to provide prior to using such leave. The Department of Labor has yet to issue guidance on these issues.


How much notice before taking leave do you think should be required?

Should employees be required to submit verification to employers that they actually used the leave to get vaccinated?



Thursday, March 11, 2021

Real Estate Brokerage - 3/11/2021 NYS Board of Real Estate meeting summary

On March 11, 2021, the NYS Board of Real Estate continued its mission of optimizing the regulation of real estate brokers in our state by holding its meeting. 


To remind real estate brokers and salespersons, the public is welcome at these meetings where the public can bring comments from the floor. Its encouraged that Lieb School students attend these meetings to have your voices heard.


"[T]he Board has general authority to promulgate rules and regulations affecting real estate brokers and salespersons in order to administer and effectuate the purposes of Article 12-A of the Real Property Law."


A complete video of the meeting is available on youtube.


In summary, the following was discussed:

  • 5 hearings that have been held by the DOS and 10 others that scheduled as a result of the Newsday Long Island Divided expose;
  • Brokerages compliance with the Executive Orders about essential workers and safety in light of COVID;
  • Communication with Complainants and Respondents about outcomes of Administrative cases; 
  • Current real estate licensee numbers for February 2020 and February 2021 were provided in a report;
  • 27 Schools have submitted course applications for the 2.5 hours of business ethics topic (Lieb School is one of these schools);
  • 23 Schools have submitted course applications for the 1 hour of recent legal matters topic (Lieb School is one of these schools);
  • 2020 Exam Results:
    • Salesperson = 17,643 applicants with a pass rate of 59%
    • Broker = 1,464 applicants with a pass rate of 65%
  • Executive Order Updates:
    • Extension of the Licenses continued through March 28, 2021
    • Electronic Notarization of Documents continued through March 28, 2021
The next meeting will be Thursday, July 22, 2021 at 1PM. 




New Law Extends Commercial Eviction Moratorium to May 1, 2021 for Small Businesses

On March 10, 2021, Governor Cuomo signed the COVID-19 Emergency Protect our Small Businesses Act of 2021 (“Act”). In summary, the Act provides some commercial tenants with an opportunity to submit a Hardship Declaration, which upon submission to the Court or landlord, stays most evictions and ejectment actions until May 1, 2021. The second part of the Act which provides for commercial mortgage foreclosure relief is discussed in a separate blog HERE.

Applicability
  • The Act applies to summary proceedings or any other judicial or administrative proceeding to recover possession of a commercial unit, including evictions and ejectment actions.
  • The Act only applies to a commercial tenant who:
    • is a resident of New York State;
    • is independently owned and operated;
    • is not dominant in its field; and
    • employs fifty or fewer persons.

Hardship Declaration
  • The Act requires the Court or the landlord (depending on the status of the eviction proceeding) to provide the tenant with the Hardship Declaration in English and in the language of the lease / tenancy agreement.
  • The tenant should complete the Hardship Declaration if the tenant is suffering a financial hardship and is unable to pay rent or other financial obligations or obtain alternative suitable commercial property because of:
    • significant loss of revenue;
    • significant increase in necessary expenses related to providing protective equipment to prevent transmission of COVID-19; or
    • moving expenses and difficulty securing alternative commercial property.

New Commercial Proceedings
  • If there is no pending proceeding and a tenant provides a Hardship Declaration to the landlord, the landlord is prohibited from commencing any proceeding until May 1, 2021.
  • If the tenant does not provide a Hardship Declaration, the landlord is required to file and serve the following to commence an action:
    • affidavit of service of the Hardship Declaration in English and the language of the commercial lease / tenancy agreement;
    • affidavit of service of predicate notices required by law and the lease;
    • affidavit of the landlord / landlord’s agent attesting to the following:
      • Landlord / his agent did not receive a Hardship Declaration from the Tenant; or
      • The tenant returned the Hardship Declaration but the tenant is “persistently and unreasonably engaging in behavior that substantially infringes on the use and enjoyment of other tenants or occupants or causes a substantial safety hazard to others, with a specific description of the behavior alleged.”
  • If the Court determines that the landlord failed to provide the Hardship Declaration to the tenant, the Court shall stay the proceedings for at least 10 business days to allow the tenant to complete the Hardship Declaration.

Pending Commercial Proceedings
  • Refers to proceedings commenced on or before March 7, 2020 and commenced within 30 days of March 10, 2021.
  • Stayed for at least 60 days, or to such later date the Court deems necessary to provide tenants time to complete and submit the hardship declaration.
  • Court shall issue stay and mail copy of the Hardship Declaration to the tenant.
  • If the tenant provides a completed Hardship Declaration to the Court or landlord, the matter is stayed until May 1, 2021.

Post-Warrant of Eviction
  • In any proceeding in which an eviction warrant has already been issued, execution is stayed until the court holds a status conference with the parties.
  • If the tenant provides a Hardship Declaration, the execution of the warrant is stayed until May 1, 2021.
  • For the sheriff to execute the warrant of eviction, it must now state:
    • The tenant has not submitted a Hardship Declaration and the tenant was properly served with a copy of the Hardship Declaration, listing dates of service by the petitioner and the court; or
    • The tenant is ineligible for a stay under this act because the court determined that the tenant is persistently and unreasonably engaging in behavior that infringes on the use and enjoyment of other tenants/occupants or causes a safety hazard to others with a specific description of the behavior.