Starting in 2021, every New York state housing discrimination plaintiff should bring an administrative complaint at the Division of Human Rights before even considering filing a lawsuit in state Supreme Court or federal District Court. 

Everyone is in the Hamptons this summer. Tenants fled here in March. They are staying even after they were supposed to go back to the city at the end of their lease terms. Unfortunately, tenants have unilaterally elected to illegally holdover in their former rentals because it's not just more beautiful here, it's safer. This has caused major problems for buyers, sellers, and legitimate tenants alike.

Andrew Lieb shares some highlights of the extraordinary changes in the law that control the sales, rentals and litigation landscape of real estate. This is a must read for real estate professionals, homeowners, landlords and tenants.

Read the full article published in Behind The Hedges here. 

New York State homeowners and real estate professionals should be aware that starting April 1, 2019, smoke detectors must either be hardwired or be sealed and have a 10-year irreplaceable battery life.

New York General Business Law Section 399-ccc prohibits the sale, distribution or importation of any “solely battery operated smoke detecting alarm device powered by a replaceable, removable battery not capable of powering such device for a minimum of ten years.” In addition to the requirement that the solely battery operated smoke detector have a minimum battery life of ten (10) years, its product packaging must also state the manufacturer’s name or registered trademark and model number of the device.

The above requirements do not apply to battery operated smoke detectors already “ordered by, or are in the inventory of, owners, managing agents, contractors, wholesalers or retailers” on or before April 1, 2019. However, if these non-compliant smoke detectors are replaced after April 1, 2019, such replacement must comply with Section 399-ccc’s requirements.

NYS Department of State adopted a rule amending 19 NYCRR 1219 and adding 19 NYCRR 1229 to require newly constructed buildings and buildings undergoing a substantial renovation to include diaper changing stations if buildings have publicly accessible toilets.

Effective January 1, 2019, such buildings must meet requirements which include having at least one diaper changing station accessible to any gender available on each floor level with a public restroom. The new rules also address requirements as to accessibility, construction, installation, maintenance and signage of the diaper changing tables.

Failure to comply may result in criminal sanctions pursuant to Executive Law §382(2).

For more details, read the full text of the 19 NYCRR 1219 and 19 NYCRR 1229.

On January 15, 2019, the Appellate Division, First Department, reversed the Supreme Court in New York State Land Title Associations, Inc. v. The New York State Department of Financial Services (page 69).

To remind the reader, the New York County Supreme Court had previously annulled the Insurance Regulation which regulated title closer fees, ancillary charges, premiums and most importantly, soliciting business.

Now, the annulment is reversed (as if it never happened), except with respect to section 228.5(a)(1)-(3) [ancillary search fees] and (d)(1)-(2) [closer fees].

So, no more sports tickets, golf outings, holiday parties, open houses, and wining and dining to solicit title insurance business.

Now, to the entertaining part. What about all of the ancillary fees that were being charged by title insurance companies, above the regulatory caps, in between the annulment date and the reversal date? If a decision is reversed was it ever annulled? If it was never annulled were the caps on ancillary fees always applicable and were consumers overcharged. These are tough questions that Department of Financial Services should answer soon. Stay tuned and perhaps we will be hearing from the Court of Appeals to put finality to the legality of Insurance Regulation 208.

This is not a politically charged article, but a functional article predicting the future. As a result of the November 6, 2018 elections, New York State no longer has a deadlocked Senate and many bills will now pass.

In 2018, the Democrats gained control of 40 seats and the Republicans gained control of 23 seats in the Senate giving them a majority from the prior 32 / 31 Republican control. Also, the Assembly remains democratic, as it has historically been since 1975. After the elections, the Assembly was 104 / 43 Democratic control.

With both New York State Senate and Assembly being dominated by Democrats, it is expected that more bills will be passed. The New York State Legislature is now less likely to be at an impasse on voting on the passage of bills. As such, stay tuned for updates on proposed bills and their passage, especially those related to real estate and employment law.

Every employer in New York State is required to provide employees with sexual harassment prevention training pursuant to Section 201-g of the Labor Law.

The Burden - All employees MUST complete the training before January 1, 2019. This training must be:

• Interactive with participation 
• Accommodate questions 
• Answer questions
• Enable employee feedback on the training and materials

Great news, Lieb School, already has a course that is approved for continuing education credits in the real estate brokerage industry -  Sexual Harassment & Brokerage. 

• As to escrow, we now know that we must deposit all escrow money within 3 business days and hold it in a secure place like a safe until such time as its deposited in the bank.

• As to compensation, we have learned that if we are paid by more than one source, we no longer have to receive consent from all parties, just our client.

• As to advertising, we understand that business cards must include our license type.

• As to qualifying education, we know that we now need to learn 1 hour on the new topic of License Safety, but the topic of Property Insurance has been reduced to only 1 hour from 2. 

• Finally, with respect to continuing education, we no longer have to take a minimum of 3 hours in a course module, but can take only 1 hour when such a course is available (Lieb School is launching a 1 hour Agency Disclosure course very soon) and each hour is now only 50 minutes long (for bathroom breaks, etc.) whereas it used to be a 60 minute requirement. 

On 8/26/15 the NYS Board of Real Estate continued its mission of optimizing the regulation of real estate brokers in our state by holding its meeting in NYC, Buffalo and Albany. 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:

1. Enforcement:
• 5 new investigators are on the enforcement staff;
• Approximately 70% of DOS enforcement is related to real estate brokerage;
• The majority of enforcement has recently addressed client funds (a/k/a, escrow) - it was suggested that a brokerage creates a job of escrow accounts supervisor to minimize organizational confusion and it was suggested that such individual needn't be licensed in brokerage;
• Secondarily enforcement has mostly addressed brokers failing to immediately terminate their salespersons upon request by the salesperson;
• Enforcement contacts respondents often through the email address provided to DOS, so brokers need to check their email (not just physical mail);
2. Curriculum:
• Changes to the broker's curriculum are in the works:
• Curriculum will maintain 45 hour requirement; 
• Curriculum is expanding the topic of broker's operations to 16 hours, which includes license law and agency; 
3. The Real Estate License Law updates from 5/2015 address changes to part 19 NYCRR sections:
• 175.12 - key change of duplicate original to only require a copy (strangely the title stayed at "Delivering duplicate original of instrument")
• 175.20
• 175.24(a)
• 177.2
• 179.1
• 179.2(b)
• 179.3(a) 

The U.S. supreme court ruled that victims of discrimination under the Fair Housing Act can sue based upon a legal theory called disparate impact discrimination, which addresses conduct that appears neutral on its face, but which nonetheless has a discriminatory effect. 

Read the full article in New York Real Estate Journal, written by Andrew Lieb, Esq., and Dennis Valet, Esq. here. 

Today, in the case Texas Department of Housing and Community Affairs v. The Inclusive Communities Project, Inc., the United States Supreme Court held 5-4 (Kennedy, Ginsburg, Breyer, Sotomayor & Kagan for the majority) that disparate-impact is a cognizable cause of action under the the Fair Housing Act (FHA). In short, a plaintiff can now point to statistical evidence of discrimination in lieu of the more difficult standard of proving that the defendant had actual discriminatory intent.

In the legal world, whether under the FHA, Title VII of the Civil Rights Act of 1964, or the Age Discrimination in Employment Act of 1967,  there are two types of discrimination: disparate-treatment, and disparate-impact. Disparate-treatment typically is discriminatory on its face. For instance, when a landlord refuses to rent to women. The landlord has discriminated against a protected class and is liable under the FHA. Disparate-impact is neutral on its face, but results in statistical discrimination of a protected class. For instance, when a landlord refuses to rent to people with long hair. The landlord's policy does not on its face discriminate against a protected class, but the effect is disproportionate discrimination against women. Under the theory of disparate-impact discrimination, the landlord is discriminating against a protected class, even though that may not be his intention, and is liable under the FHA.

In the Texas Department of Housing and Communities Affairs case, the plaintiff alleged that the criteria set by the Texas Department of Housing and Communities Affairs for the distribution of tax credits intended to assist development of low income housing resulted in discrimination on the basis of race. The criteria, which was racially neutral on its face because it considered  economic factors almost exclusively, had the statistical result of higher approval rates for communities with higher proportions of African-Americans. The plaintiff alleged that the criteria resulted in the Texas Department of Housing and Communities Affairs discriminating against Caucasians under the theory of disparate-impact.

The Supreme Court, recognizing the broad expansion of liability under the disparate-impact theory, carefully established the burden a plaintiff must meet to make a prima facie showing of discrimination. That is, statistical discrimination of a protect class alone will not result in liability. First, the plaintiff must show that the action or policy results in statistical discrimination against a protected class. Second, the plaintiff must show that there is a specific policy held or perpetrated by the defendant that is causing the disparate-impact discrimination. Third, the plaintiff must show that there is an alternative practice or policy that has less disparate impact while still serving the defendant's legitimate needs.

The consequences of this ruling will be far reaching as plaintiffs attempt to link facially neutral policies to disparate-impact discrimination against protected classes. In New York, for instance, disparate-impact greatly expands the potential liability for discrimination against the numerous protected classes in our State. While the FHA has seven (7) protected classes (Race, Color, National Origin, Religion, Sex, Familial Status, and Handicap), New York State has eleven (11) protected classes (Race, Creed, Color, National Origin, Sexual Orientation, Military Status, Sex, Age, Disability, Marital Status, and Familial Status) and New York City has fourteen (14) protected classes (Race, Creed, Color, National Origin, Gender, Age, Disability, Sexual Orientation, Marital Status, Partnership Status, Alienage Status, Citizenship Status, Lawful Source of Income, and Children are, may be, or would be residing with such person). While New York City and New York State already recognized disparate-impact as a cognizable cause of action in certain circumstances prior to this most recent Supreme Court ruling, the recognition of disparate-impact under the FHA will likely cause expansion of disparate-impact theories in jurisdictions and statutes which do not specifically recognize disparate-impact as a cognizable cause of action.

The law of the land is clear - disparate-impact is just as damaging as disparate-treatment and violators cannot hide behind facially neutral policies.

Attention Nassau County Bar Association Real Property Law Committee Members - Andrew Lieb, Esq. will be speaking on ""Top Ten Changes in Real Estate Law of 2014" at the Real Property Law Committee meeting on Tuesday, May 26, 2015 at 5:30p.m. in the Founders Room at the Home of the Association.

CLE credit is available.

Check out Andrew Lieb's latest article published in The Suffolk Lawyer.

Andrew Lieb's latest article has been published in The Suffolk Lawyer.

In January 2015, a new Human Rights law went into effect in Suffolk County, to wit: Local Law No. 25- 2014. While the Suffolk County Human Rights Law (hereinafter “SCHRL”) is similar to the Federal Fair Housing Act and the New York State’s Human Rights Law, the SCHRL now adds the protected class of “lawful source of income” to prohibited housing discrimination throughout the county; a protected class that does not exist in either the federal or state law.

To read the full article, click here.

Now that 2015 is here, NYers should know the top changes from the past year in real estate laws that affect property owners and tenants in our community. This is not a list about the best events from 2014, but, instead, a list that highlights the new legal landscape that you face in 2015.

Read the full article in The Huffington Post.

The Department of Environmental Conservation (DEC) will issue a legally binding findings statement to prohibit High-Volume Hydraulic Fracturing (HVHF) in the State of New York.

New York's move should motivate the Erin Brokoviches of this world to start their lawsuits against companies involved in fracking based on the plethora of adverse health data exposed.

This DEC's statement comes on the heels of the Acting Department of Health Commissioner recommending that fracking should not move forward in the State.

According to the Commissioner "I have considered all of the data and find significant questions and risks to public health which as of yet are unanswered,". The review by the Department of Health, entitled "A Public Health Review of High Volume Hydraulic Fracturing for Shale Gas Development", is the basis for the DEC's decision to ban fracking.

The review states, in pertinent part, that "there are significant uncertainties about the kinds of adverse health outcomes that may be associated with HVHF, the likelihood of the occurrence of adverse health outcomes, and the effectiveness of some of the mitigation measures in reducing or preventing environmental impacts which could adversely affect public health."

The review summarizes "some of the environmental impacts and health outcomes potentially associated with HVHF activities:
• Air impacts that could affect respiratory health due to increased levels of particulate matter, diesel exhaust, or volatile organic chemicals.
• Climate change impacts due to methane and other volatile organic chemical releases to the atmosphere.
• Drinking water impacts from underground migration of methane and/or fracking chemicals associated with faulty well construction.
• Surface spills potentially resulting in soil and water contamination.
• Surface-water contamination resulting from inadequate wastewater treatment.
• Earthquakes induced during fracturing.
• Community impacts associated with boom-town economic effects such as increased vehicle traffic, road damage, noise, odor complaints, increased demand for housing and medical care, and stress."

Today is a bad day to own a fracking company. Yet, so many lives will be bettered as a result of this new rule.

Residential leases are now required to contain a notice to tenant(s) concerning the existence of sprinkler systems.

“Sprinkler system” shall mean a system of piping and appurtenances designed and installed in accordance with generally accepted standards so that heat from a fire will automatically cause water to be discharged over the fire area to extinguish it or prevent its further spread.
See Executive Law 155-a.

Read the new law at Real Property Law 231-a.

The law specifically requires:

• Notice in bold face type;
• Notice that a maintained and operative sprinkler system in the leased premises is in - EXISTENCE OR NON-EXISTENCE; &
• The last date of maintenance and inspection of any EXISTING sprinkler system.