Tuesday, April 26, 2016

10 Secrets to a Perfect Summer Rental

Summer rentals got off to a great start this year, yet there are still people looking to secure that ideal getaway, and there are still East End homeowners who could quickly become landlords for the season. In each issue of Behind the Hedges, I offer insights and information about the legal side of Hamptons real estate. Here’s one that is particularly valuable and bears re-sharing this time of year, when we need to remember: with every great summer rental comes great responsibility. The secret to success for both landlords and tenants is to set clear expectations before the rental period gets underway. If either party has false expectations, the summer can end with anger, arguing and possibly court. Before renting, discuss these topics and then have an attorney draft a lease accordingly.

Read the full article by Andrew Lieb, Esq. in Behind The Hedges.

Mold Licensing Law for Assessment, Remediation, and Abatement

On January 1, 2016 the amended Article 32 of the Labor Law became effective thereby making it “unlawful for any person to engage, advertise or hold themselves out as a mold assessor, remediation contractor, or abatement worker unless they have a valid mold license, issued by the commissioner, for the type of work they will be performing. Individuals who do so may be subject to a civil penalty.”

Read the full article by Andrew Lieb, Esq. in the Suffolk Lawyer.

Wednesday, April 13, 2016

Lieb at Law is expanding and searching for a Real Estate Attorney to join the collaborative team!

Real Estate Attorney

Lieb at Law, P.C., is seeking the next Attorney to help raise the bar and lead our profession in a collaborative, inspiring and technologically advanced setting. The firm offers an environment that supports personal and professional growth without micromanagement or dogmatic resistance to fresh and innovative ideas. Driven attorneys who prove their competence are quickly rewarded with responsibility and opportunities beyond that offered for similarly experienced attorneys at major firms. Competence trumps experience and career growth is limited only by your own ability, ambition and desire to learn and evolve. Career advancement includes partner-track.

We are looking for a potential star that is intellectually driven, who does not cut corners, has a fresh approach, thinks outside-the-box and can provide tangible fact-driven support. Our firm motto is ‘no case; no statute; no talk’. This means that fluff will not get you very far at Lieb at Law, P.C. We challenge you to provide supporting anecdotal evidence of why you would thrive in a collaborative firm that consists of 6 Attorneys, 3 Law Clerks, 2 Business Managers and 1 Paralegal.

This role will start off working across all aspects of the firm’s real estate practice inclusive of foreclosure litigation, mortgage default workouts, real estate transactions, landlord / tenant transactions and evictions, land use and business transactions. Then, the candidate is charged with developing their personal niche as their carrier evolves.

This position is located in Center Moriches, which is in Suffolk County within the Riverhead / Westhampton Area. Clients span across Long Island, New York City and Westchester.

Compensation: Commensurate with experience, includes full benefits package.

About The Firm: Lieb at Law’s mission is to serve as an indispensable strategic advisor to our clients, helping to minimize risk while maximizing profitability, and aggressively litigate with leading solutions. The firm’s transactional team ensures that contractual language is driven by qualitative data from the litigation field. Lieb at Law’s work product is a derivative of embracing education and technology. Lieb at Law is fully committed to our technology-based collaborative approach and believes that this operational model drives our success.

Beyond utilizing legal research platforms to enable immediate access to the most recent case law and publications, the firm’s systems include cloud-based file and time management software with additional proprietary programs. As a result, Lieb Attorneys have instantaneous access to client records anywhere, even on their smartphones in court and at closings.

To Apply:
Email Cover Letter, Resume and Salary Requirements to careers@liebatlaw.com

- See more at: http://lawjobs.com/job/real-estate-attorney-center-moriches-new-york-164526#sthash.EkMA9Mye.dpuf

Monday, April 04, 2016

New HUD Guidance - The Intersection of Disparate Impact Discrimination and Criminal Background Checks

Last year, the Supreme Court ruled that disparate impact discrimination claims are cognizable under the Fair Housing Act. For a refresher, read my blog post about the decision here. In sum, landlords may be liable for discrimination if the effect of a facially neutral housing action has a disproportionate impact on a protected class.

Today, the office of general counsel to the U.S. Department of Housing and Urban Development issued a memorandum offering guidance regarding the potential discriminatory effects of taking an adverse housing action against a tenant based upon their criminal history. A link to the memorandum can be found here. The logline for this memorandum is that HUD believes taking an adverse housing action based upon criminal history may constitute discrimination on the basis of race or national origin because of its disparate impact on those protected classes.

The memorandum examines the three-step burden-shifting test a court would analyze in a claim brought by a tenant who alleges they were discriminated based upon their criminal history. The stated purpose of the memorandum is facially neutral, addressing “how the discriminatory effects and disparate treatment methods of proof apply in Fair Housing Act cases in which a housing provider justifies an adverse housing action… based on an individual’s criminal history.” The practical effect of the memorandum, however, is that HUD has armed plaintiff’s attorneys with a new theory of liability that all landlord’s should understand.

The three-step burden-shifting test requires that a plaintiff first prove that the complained of practice has a discriminatory effect. If the plaintiff is successful, the defendant must then prove that the challenged practice has a legally sufficient justification. Finally, if the defendant proves a legally sufficient justification, a plaintiff must then prove that there is a less discriminatory alternative available. The HUD memorandum examines each question and attempts to offer guidance in turn.

Discriminatory Effect

HUD submits that national statistics stand for the conclusion that “[n]ationally, racial and ethnic minorities face disproportionately high rates of arrest and incarceration. Without drawing its own conclusion, HUD posits that these statistics, along with other evidence, could provide sufficient proof for the legal position that taking an adverse housing action, such as refusing to enter or renew a lease based upon criminal history, has a disparate impact on African Americans or Hispanics.

Legally Sufficient Justification

If a plaintiff is successful in proving that an adverse housing action on the basis of criminal history has a discriminatory effect on racial or ethnic minorities, a defendant would then be compelled to provide a legally sufficient justification for the action. In analyzing this factor, HUD acknowledges that “resident safety and protecting property are often considered to be among the fundamental responsibilities of a housing provider”. However, HUD does push back by requiring that a defendant submit evidence supporting the conclusion that a policy of discriminating on the basis of criminal history furthers the stated purpose of protecting residents and property. That is, a landlord cannot blindly rely upon this justification in every situation. HUD suggests that landlords consider each potential tenant on a case by case basis instead of having a blanket policy of refusing to lease to anyone with a criminal history

For example, HUD submits that the existence of a prior arrest, which does not carry a subsequent conviction, “has very little, if any, probative value in showing that he has engaged in any misconduct. An arrest shows nothing more than that someone probably suspected the person apprehended of an offense.” HUD concludes that “because arrest records do not constitute proof of past unlawful conduct… the fact of an arrest is not a reliable basis upon which to assess the potential risk to resident safety or property posed by a particular individual.”

Moving further, HUD submits that even a criminal conviction does not automatically create a legally sufficient justification. “A housing provider that imposes a blanket prohibition on any person with any conviction record – no matter when the conviction occurred, what the underlying conduct entailed, or what the convicted person has done since then – will be unable to meet this burden [of proving a legally sufficient justification].” HUD suggests that a “housing provider must show that its policy accurately distinguishes between criminal conduct that indicates a demonstrable risk to resident safety and/or property and criminal conduct that does not.”

Less Discriminatory Alternative

If a landlord proves a legally sufficient justification for the challenged policy or act, the plaintiff may still prevail by proving that a less discriminatory alternative exists. Here, HUD offers no substantiated guidance but submits that the analysis must be performed on a case by case basis. The only suggestion proffered by HUD is that a landlord may consider delaying a criminal history investigation until after a tenant has already qualified financially.


In the end, HUD has taken an aggressive position that all landlords must remain cognizant of when making housing decisions. When forming a policy of utilizing criminal background checks, a landlord should ensure that their policy is “tailored to serve the housing provider’s substantial, legitimate, nondiscriminatory interest and take[s] into consideration such factors as the type of the crime and the length of the time since conviction.” A landlord who has no evidence that its policy or action is grounded in nondiscriminatory justification will be vulnerable to complaints. 

At the very least, HUD has made it clear that blanket prohibitions on any person with a criminal history will face legal challenges based upon the Supreme Court’s upholding of the disparate impact theory of discrimination.