Legal Analysts

Showing posts with label Tenant. Show all posts
Showing posts with label Tenant. Show all posts

Friday, November 17, 2023

Terminating a Lease of a Decedent as an Executor / Administrator

If someone dies who is a tenant and if the estate wants to terminate the lease, all they have to do is notice the landlord by registered or certified mail, return receipt requested. 

That is the new law, Real Property Law 236-a. 

Don't worry landlords, this law doesn't relieve tenants for past due rent, damage, or expenses.

While this law doesn't apply to cooperative units, it sure seems to apply to commercial property, which is insane (all the more reason to have tenants lease as entities, not individuals). 

This law is effective February 15, 2024. 

Monday, January 10, 2022

Suffolk County Renters: BEWARE!

Suffolk County renters: BEWARE! Those looking to rent in Suffolk County, New York should proceed with caution when searching for a rental home. 

In an effort to protect Suffolk County tenant/residents from rental fraud, the County Legislature has amended Local Law No. 30-2021. Rental fraud is committed when a person or entity leases a residential or commercial property to another, when that person or entity does not have an ownership interest in the property or authorization from the owner to lease the property. Properties that are vacant or foreclosed upon are typically the kinds of properties that are used for rental fraud. 

The law now states that "persons seeking to rent or lease real property MAY [emphasis added] demonstrate ... ownership interest or authorization to rent, lease or sublet real property." Ownership interest for real property can be demonstrated to a potential tenant via a fully signed and valid deed or a fully signed lease agreement. Similarly, a person can demonstrate they have authorization from the property owner to rent or lease the property by providing a potential tenant with proof of agency. 

The problem with this new law is that the Legislature does not actually require those looking to lease out their real property to prove that they are indeed the owner of the property. If the Legislature actually wants to protect potential tenants from rental fraud, they need to revise this law immediately and require that persons seeking to rent out real property provide proof of ownership or agency authorization incident to such rental.

Those who commit rental fraud and are caught will face penalties subject to a fine of up to $1,000.00 and/or up to six months imprisonment. Do you think the punishment fits the crime? 

In the meantime, potential tenants can and should take additional steps to protect themselves where the Legislature has fallen short. As rental fraud has become a hot topic in Suffolk, potential tenants should do their research, as well as request proof of ownership from those who are leasing properties. If a lessor refuses or cannot provide proof of ownership or agency authorization, it may be best to continue the house hunt.

Wednesday, December 29, 2021

New Law: Co-ops under the Housing Stability and Tenant Protection Act of 2019

As of December 22, 2021, cooperatives have received 8 exemptions from the Housing Stability and Tenant Protection Act, which otherwise restricts landlords' rights as to their tenants.

When the Housing Stability and Tenant Protection Act came out, we repeatedly tried to explain to co-op boards, property managers (managing agents), real estate brokers, local NAR boards, and courts, amongst others, that this law applied to co-ops regardless that it clearly was not the intent of the legislature. To a non-lawyer intent of the legislature matters, to a lawyer the rules of statutory interpretation matter and you never get to the intent of the legislature if the statute is clear on its face, which the Housing Stability and Tenant Protection Act is. You see, co-ops are landlords and their shareholder-owner-occupiers are tenants. This is longstanding settled law, which  created a huge predicament for co-ops. 

Thankfully, roughly 2 years later, the law is finally fixed as follows:

  • GOL 7-108(1-a), the deposit or advance limit of one month’s rent will no longer apply to owner-occupied cooperative apartments;
  • RPL 226-c, the notice requirement for rent increases of 5% or more / non-renewal will no longer apply to owner-occupied cooperative apartments;
  • RPL 238-a(1)(a), the preclusion of charging fees to review applications will no longer apply to  compensate managing agents and/or transfer agents for the processing, review, or acceptance of such prospective tenant’s application to become a shareholder of such co-op; 
  • RPL 238-a(1)(b), the cap on fees for applications of $25 is inapplicable to applications from prospective shareholders to co-ops, but the limitation of only charging up to the actual cost remains;  
  • RPL 238-a(2), late fees are now permitted on owner-occupied cooperative, but only up to 8% of monthly maintenance fee and only where the proprietary lease or occupancy agreement is updated to reflect such percentage;
  • RPAPL 702(2), the limited definition of rent for purposes of a judgment in a summary proceeding is inapplicable to owner-occupied cooperatives to the extent that the proprietary lease or occupancy agreement is updated to reflect a different definition;  
  • RPL 235-e, the 5-day non-payment of rent notice does not need to be sent by certified mail to co-op owner-occupants to the extent that the proprietary lease or occupancy agreement is updated to reflect a different method of serving notice; and 
  • RPL 234, attorneys’ fees may be awarded to either party in the event of a default judgment concerning a co-op owner-occupant to the extent that the proprietary lease or occupancy agreement is updated to reflect the availability of such fees. 

We can't stress enough that half of these new updates require an updated proprietary lease / occupancy agreement to become effective. As to the other half, co-ops would also be wise to expressly provide for their rights under an updated proprietary lease / occupancy agreement. That all being said and even if a co-op does update its proprietary lease / occupancy agreement, it will remain a landlord and subject to landlord / tenant laws for every other law that restricts landlords' actions in NYS.

Wednesday, December 22, 2021

New Law: Real Estate License Law Violation Fine Doubled to Fund Fair Housing Enforcement

Starting on February 19, 2022, the maximum fine for real estate license law violations has been doubled from $1,000 to $2,000 by S945B. Brokers beware. 

Further, 50% of these fines, for violating Article 12-A and 19 NYCRR 175, will be used to establish an Anti-Discrimination in Housing Fund (ADHF). 

The ADHF shall be controlled by the NYS Attorney General and may be used for:

  • Fair housing testing;
  • Grants to duly applying county, city, town or village human rights commissions;
  • Grants to duly applying county, city, town or village agencies specializing in the prevention of unlawful discrimination in housing; &
  • Grants to duly applying not-for-profit agencies specializing in the prevention of unlawful discrimination in housing. 
It looks like there is about to be a lot more housing discrimination litigation going on starting in 2022. Are landlords, sellers, brokers, and property managers ready? 

Friday, December 17, 2021

Self-Represented Tenants Entering into Stipulations of Settlement Get More Protection

Additional protections in Housing Court are being enforced in order to aid self-represented parties. When opposing parties come to an agreement during a proceeding, they sign a Stipulation of Settlement ("Stipulation"), which is a binding agreement, so it is the judge's responsibility to ensure that the parties understand the Stipulation. 

Bill A3320A relates to stipulations in summary proceedings to recover possession of real property. Moving forward, a stipulation will not be approved by the court unless the court first verifies the following:

  • All parties have been accurately and appropriately named;
  • The authority of the signatory if a named party is not present;
  • The unrepresented party understands he may try the case if he does not agree with the stipulation;
  • An opposing party's attorney did not inappropriately give advice to the unrepresented party;
  • Whether or not the unrepresented party agrees or contests any allegations in the petition or predicate notices;
  • The unrepresented party understands the claims and defenses available to him and what his options may be in light of the claims and defenses, and, that the claims and defenses are adequately addressed in the stipulation;
  • The unrepresented party agrees to the terms in the stipulation;
  • The unrepresented party understands the consequences of either party's non-compliance with the stipulation; and
  • An appropriate rent breakdown is included, if applicable. 

An allocution is the process in which the judge determines if the parties understand the terms of the Stipulation. The amended Bill offers judges a checklist, if you will, that will allow them to efficiently ensure unrepresented parties understand the agreement that they have entered into.

Landlord's attorneys should become well versed in the allocution so that they can ensure that the Court will approve their client's settlements and resolve disputes.  

Landlord Training Classes to be Included in Neighborhood Preservation and Community Renewal Activities

In an effort to improve neighborhood preservation and community renewal, New York will expand their current definition of preservation and renewal to include the administration of landlord training classes. The amended bill covers all municipalities and aims to provide assistance primarily to underserved neighborhoods. Landlords are not required to participate in these classes so they will not be penalized if they choose not to do so. 

The amended bill, A05393, which is awaiting Gov. Hochul's signature, will administer landlord training classes in the definitions of neighborhood preservation activities and community renewal activities. These classes will cover information ranging from building codes to evictions. Preservation and community renewal activities include, but are not limited to, repairs, renovations, and restorations. Ultimately, the goal of the Bill is to preserve underserved neighborhoods and to protect tenants from being unnecessarily bothered and illegally evicted by landlords. 

Landlords are having new laws thrown at them on a regular basis in light of the COVID pandemic. And if you're not tuned in, updates on regulations and new laws can be easily missed or misunderstood. These classes will afford landlords the opportunity to know what's going on in their industry. This Bill could also help landlords reduce legal fees by getting it right the first time around. 

Details have not yet been released regarding where the classes will take place, in what form - virtual or in-person, how often, and how New York will monitor whether or not a landlord has actually completed the training classes. If all goes according to plan, this Bill will be helpful to both landlords and tenants alike. The classes in theory sound like they will be an extremely useful tool for landlords. But, if a landlord is not required to attend the classes, will they actually go to them? 

Monday, December 13, 2021

The Beginning of the End for Paper Copy Lease Agreements

It is the beginning of the end of paper copy lease agreements in NYS, at least for rent stabilized tenants. 

Moving forward, rent stabilized tenants are going to be processing their leases electronically because Bill A02679 passed the legislature and is pending Gov. Hochul's signature. This Bill requires that the Division of Housing and Community Renewal ("DHCR") develops regulations allowing electronic leases and signatures to be used for both leases and lease renewals of rent stabilized tenants. 

However, the Bill makes clear that electronic leases are not yet required. As such, those who may not be well-versed in technology, such as the Baby Boomer generation, need not worry about how this could affect their lease execution process as tenants will be able to choose whether or not they want to execute their lease via electronic means or via a traditional paper copy. A tenant will be presented with a form, developed by DHCR, in the top 6 languages that will confirm that the tenant has the choice whether to consent to the use of electronic records and signatures. Therefore, landlords will not be permitted to require their tenants to execute their lease by electronic means.

It is expected that electronic leases are going to become the norm sooner rather than later. They cut down on costs of office supplies, such as printer ink and paper, while provide for improved organization and retrieval. They save time by avoiding face-to-face meetings and can maximize safety in this COVID world. 

Do you think most rent stabilized tenants will choose to have their leases executed electronically? Or, will paper copies stand the test of time in a constantly evolving technology driven world? Seems unlikely. It's my guess that as the Boomer generation dissipates, paper copy leases will as well. 

Thursday, September 02, 2021

NYS Eviction Ban Has Been Extended to January 15, 2022 – What Should Landlords Do Now?

The NYS Legislature passed Senate Bill 50001 and 50002, extending the state’s eviction / foreclosure moratoria to January 15, 2022, and both bills were signed by Governor Kathy Hochul on September 2, 2021.

What’s in the Law?
Briefly, the laws:
  • Extend residential and commercial eviction and foreclosure moratoria to January 15, 2022;
  • Expand eviction protections for tenants under the COVID-19 Emergency Rental Assistance Program (CERAP);
  • Create a due process mechanism for a landlord to challenge a tenant’s Hardship Declaration;
  • Direct judges to require residential tenants to apply for CERAP if their hardship claim is determined to be valid;
  • Extend the period covered by the Tenant Safe Harbor Act to January 15, 2022; and
  • Increase funding for CERAP, Hardship Fund, and legal services for tenants facing evictions.

Moving Forward:
Landlords should demand hearings and challenge their tenants’ hardship claims, which is the trigger for the moratoria to apply. Unlike the prior version of the law, which was overturned by the U.S. Supreme Court in Chrysafis v. Marks, a tenant can no longer decide for himself / herself whether the law is applicable. Specifically, landlords may now file a motion with an attestation of the landlords’ good faith belief that the tenant has not experienced a hardship. Then, the court will schedule a hearing to determine whether the tenant’s hardship claim is valid. If it’s deemed invalid by the court, then the eviction proceeding can proceed. If it’s deemed valid by the court, then the eviction is stayed until January 15, 2022, but the court will order the tenant to apply for CERAP so that the landlord is paid rent.

What is CERAP?
Tenants may apply for CERAP voluntary, or under court order. Under CERAP, Landlords receive up to 12 months of rental arrears and up to 3 months of future rent.

Eligible tenants are:
  1. Tenants or occupants obligated to pay rent in their primary NYS residence;
  2. Individuals who have qualified for unemployment or experienced a reduction in household income, incurred significant costs, or experienced other financial hardship due – directly or indirectly – to the COVID-19 outbreak;
  3. Tenants who demonstrate a risk of experiencing homelessness or housing instability; AND
  4. Tenants who have a household income at or below 80% of the area median income, adjusted for household size.

If a tenant is approved for rental assistance under CERAP, the money goes directly to the landlord. However, landlords who accept CERAP payments, must:
  • Not use any prior arrears as a basis for a nonpayment eviction proceeding;
  • Waive late fees;
  • Not increase monthly rent due 1 year from the date the first CERAP payment is received; and
  • Not evict based on an expired lease for a period of 12 months after the first CERAP payment is received, UNLESS the property is in a building with 4 or fewer units, and in which case, the landlord may decline to extend the lease only if the landlord or his immediate family intends to immediately occupy the unit for personal use as a primary residence.

Nonetheless, landlords who accept CERAP may still commence evictions against tenants who:
  • Intentionally cause significant damage to the property;
  • Persistently and unreasonably engage in behavior that substantially infringes on the use and enjoyment of other tenants or occupants; or
  • Causes a substantial safety hazard to others.

What should landlords do now?
Start an eviction proceeding and challenge the hardship, which will either result in CERAP money or permission to continue the eviction process. Alternatively, if a landlord does not have a good faith basis to challenge the hardship or does not want to be restricted by the program’s requirements, then, a landlord should bring a breach of contract lawsuit in NYS Supreme Court against their non-paying tenants, as explained by the federal courts in Elmsford Apartment Associates LLC v. Cuomo.

Friday, August 27, 2021

Evictions Evictions - Get Your Evictions - US Supreme Court Opens the Floodgates

On August 27, 2021, the US Supreme Court opened the floodgates for evictions throughout the United States in the case of Alabama Association of Realtors v. DHHS

Landlords, have you called your attorney yet to start the eviction process? 

Investors, are you ready for the housing market to swing because of a flood of inventory? 

Tenants, have you started to make moving arrangements and tried to settle your arrears for less money? 

Wow, can you feel that tsunami coming? 

Make no mistake, this is the first domino to fall in our housing market's shift into a buyer's market on fundamentals. Are you ready? 

For the legal context of what transpired, the CDC had issued a moratorium on evictions in counties with substantial or high levels of COVID-19, which we explained here. That moratorium was thrown-out by the District Court for the District of Columbia, but that Court knew that the issue would get to the Supreme Court so they stayed (a/k/a, paused) the effectiveness of their Order overturning the moratorium until the Supreme Court could weigh-in, which we explained here. Now, the Supreme Court has weighed-in and the eviction moratorium is ineffective, unlawful, and unenforceable. 

To be clear, the Supreme Court did not weigh-in on the policy of an eviction moratorium. They didn't rule as to whether it is a good idea, good policy, or needed for our country. Instead, the Supreme Court ruled "that the statute on which the CDC relies does not grant it the authority it claims." In plain language, the eviction moratorium was thrown-out because the CDC's basis for imposing the moratorium does not afford it that power.

You see, Executive Branch agencies, like the CDC, can't do whatever they want. They need power before they act, which comes from Congress. Without that power, they can't do anything. They can't issue regulations, rules, or directives. This power, called an enabling statute, was missing from the eviction moratorium, according to the Supreme Court, which explained that the power relied upon by the CDC was meant "to implement measures like fumigation and pest extermination," not eviction moratoriums. According to the Supreme Court, "our system does not permit agencies to act unlawfully even in pursuit of desirable ends." 

Knowing that, you should be wondering if Congress will act and impose its own eviction moratorium? 

For landlords, investors, and tenants that is a really important question given that the Supreme Court acknowledged, in its decision, that "[a]t least 80% of the country, including between 6 and 17 million tenants at risk of eviction, [fell] within the moratorium." 

However, we doubt that Congress will issue another moratorium because it can't get anything done with its division in the Senate. Further, the Supreme Court reminded Congress, in its decision, that a federal "moratorium intrudes into an area that is the particular domain of state law: the landlord-tenant relationship." 

As a result, evictions are about to flood the court systems. Are you ready for the eviction tsunami? 

Thursday, August 05, 2021

CDC's Latest Eviction Moratorium - Applies to Counties with Red / Orange COVID on Map

On August 3, 2021, CDC issued its latest eviction moratorium to address the rise of the Delta variant. 

Here is what landlords and tenants need to know about the moratorium:

    1. It only applies to residential housing;
    2. The moratorium only applies where tenant(s) provide a declaration to their landlord(s);
    3. The Declaration is available here;
    4. The Declaration requires a sworn statement that the tenant(s):
        1. Have used best efforts to obtain all available governmental assistance; 
        2. Earned <=$99,000 in Calendar Year 2020 ($198,000 if filing jointly) with other financial options to qualify;
        3. Can't pay full rent because of stated work issues;
        4. Making best efforts to pay as much as possible of rent; 
        5. Would likely be homeless as a result of eviction; &
        6. Resides in substantial / high COVID county.
    5. Evictions are permitted for the following reasons:
        1. Engaging in criminal activity while on the premises;
        2. Threatening the health or safety of other residents;
        3. Damaging or posing an immediate & significant risk of damage to property;
        4. Violating any applicable building code, health ordinance, or similar regulation relating to health & safety; or
        5. Violating any other contractual obligation (other than rent payment). 
    6. Criminal penalties for violating this moratorium include a fine of <=$100,000 or one year in jail or both (<=$200,000 for organizations that violate the order). 

The counties subject to this Order can be found here - remember, the county must be an orange (substantial) or red (high) county for the moratorium to be applicable.

Thursday, July 22, 2021

The Neverending Assault on Landlord's $ Continues with New Bill on Governor's Desk

Landlords are about to be capped on key reproduction fees in NYS. 

You may be saying whoopdeedoo, but it's not that simple. 

The cap is 110% of the actual cost of reproduction. However, the cap doesn't apply for the 4th time the tenant needs the keys in a calendar year. 

The real question is what happened the second and third time the tenant needed a new key. Why are they constantly losing their keys? Do you lose your house keys FOUR times in a year? 

Here is a question - does this new key reproduction cap also cap the shipping and handling of the new keys? Think about it. Now a landlord needs to stop their day, drive to a local hardware shop, wait about 20 minutes for the line and the key to be made, drive back to their office, and deliver the key for virtually fifty cents. This is nuts. 

Maybe the legislature should realize that landlords never wanted to make money on key reproduction in the first place. Instead, they charged a lot to motivate their tenants to STOP LOSING KEYS. 

Read the new law, section 235-i of the Real Property Law, here

Governor Cuomo should not to sign this stupid law. 

If he does, lawyers need to draft leases with shipping and handling fees for keys, but it's unclear if such fees will be upheld in court when the litigation ensues on the topic. 

Do you think landlords should be able to charge fees for shipping and handling of key reproduction?

Tuesday, May 04, 2021

Legislation Extending Eviction & Foreclosure Moratoriums to August 31, 2021 Signed by Governor

On May 4, 2021, the New York State Senate and Assembly passed legislation (A.7175) that extends the eviction and foreclosure moratoriums on both residential and commercial properties from May 1, 2021 to August 31, 2021. The legislation is now on the Governor’s desk for signature. UPDATE: The Governor signed the legislation on May 5, 2021.

If signed, eviction and foreclosure proceedings shall be stayed until August 31, 2021 for tenants and foreclosure defendants who submit a hardship declaration pursuant to the COVID-19 Emergency Eviction and Foreclosure Prevention Act and the COVID-19 Emergency Protect Our Small Businesses Act.

Also passed is legislation which expands the COVID-19 Emergency Protect Our Small Businesses Act to small businesses with up to 100 employees, or up to 500 employees if the business was shut down by Executive Order or Health Department directives for at least 2 weeks between May 15, 2020 and May 1, 2021 (A.7127).

As a result, landlords should resort to bringing breach of contract lawsuits against non-paying tenants as explained by the federal courts in Elmsford Apartment Associates LLC v. Cuomo. Do you think suing for a money judgment could result in a settlement where your non-paying tenant surrenders & leaves your property? Should the legislature block this too?

Wednesday, April 14, 2021

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.


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, 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:

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 03, 2021

A Commercial Landlord is Liable for its Tenant's Trademark Infringement - Be Warned

If you know that your tenant is engaging in illegal activity at your property, you better do something about it. That's the message from the Federal Appellate Courts in Omega SA v. 375 Canal, LLC

In the case, a jury awarded $1.1 MM against a landlord for contributory trademark infringement for its willful blindness in identifying potential trademark infringing vendors at its premises where a counterfeit Omega watch was sold. According to the Court, liability follows if the landlord "or its agents had reason to suspect that trademark infringing merchandise was being offered or sold but deliberately failed to investigate or looked the other way to avoid seeing such activity." 

To prevail, a plaintiff does NOT need to prove that the landlord "continued to lease space to a specific, identified vendor that it knew or should have known was selling counterfeit [] goods." Instead, the plaintiff only needs to prove that a landlord had "reason to suspect" it's tenant counterfeiting goods "but deliberately failed to investigate or looked the other way to avoid seeing such activity." That is not to say that a landlord has an affirmative duty to police trademarks on its premises, just that it can't ignore them either. 

Landlords - 

Do you have video surveillance at your property? 

Do you have security guards? 

Do you accept complaints about your tenants from their customers?

What do you do to protect yourself from criminal tenants leasing space from you? 

Monday, February 15, 2021

Assaulting and Injuring a Landlord Is Not Enough for Eviction

In the Matter of Bryant v. Garcia, the First Department found that the termination of a tenant’s tenancy was too much of a penalty for hitting the landlord’s employee.

In this case, the tenant was a 64-year-old woman who has been a New York City Housing Authority (NYCHA) tenant for more than 40 years and who “suffered a momentary loss of control when she struck respondent’s employee, whom she believed to be in a relationship with her former partner” per the First Department. Due to the incident, the NYCHA terminated her lease and the tenant is now seeking to vacate that determination.

The Court granted her request and found that because the tenant has lived there for more than 40 years without incident and that the NYCHA has not showed any other proof that the tenant presents a safety concern, a lesser penalty than terminating her lease is warranted. Now, it’s up to the lower court to determine what the lesser penalty should be.

What do you think the penalty should be? Should assaulting and injuring a landlord be enough to evict?

Wednesday, October 21, 2020

Commercial Eviction and Foreclosure Moratoriums Extended through January 1, 2021

Through Executive Order 202.70, Governor Cuomo extended the moratoriums for the initiation of a proceeding or enforcement of an eviction of any commercial tenant for nonpayment of rent or a foreclosure of any commercial mortgage for nonpayment of such mortgage to January 1, 2021. This means that no eviction or foreclosure proceeding may be commenced against commercial tenants for nonpayment of rent or mortgage until such date. However, commercial tenants may still be evicted through holdover eviction proceedings or sued under breach of contract theories for missed rent.

There are no moratoriums in place for residential properties by Executive Order but residential evictions based on non-payment are governed by the Tenant Safe Harbor Act. Courts may be prohibited issuing a warrant of eviction or judgment of possession against a residential tenant experiencing COVID-19-related financial hardship, if the tenant raises it as an affirmative defense and the Court determines that the tenant is suffering such hardship. Listen to our podcast HERE for what this means to residential landlords.

Tuesday, July 07, 2020

Eviction and Foreclosure Stay Continued for Commercial Properties Not Residential

On July 6, 2020, Governor Cuomo signed Executive Order 202.48 which affects the validity of many existing executive orders but most notable of which, is that it extends the stay on evictions and foreclosures proceedings to August 5, 2020 for commercial properties, but not for residential properties.

Essentially, Executive Order 202.48 extends the validity of Executive Order 202 up to 202.14, as continued and contained in Executive Order 202.27, 202.28, and 202.38 for another thirty (30) days through August 5, 2020 with some exceptions.

Real estate professionals should be aware that it does not extend the eviction and foreclosure moratorium in place as ordered in Executive Order 202.28 for all residential tenants and mortgagors. However, for commercial properties, an eviction and foreclosure stay is still in place until August 5, 2020.

As such, landlords and lenders should take note of the following:
  • Residential evictions may now be commenced but courts are prohibited from awarding warrants of eviction and judgments of possession for tenants experiencing financial hardship for non-payment of rent that accrues or becomes due during the COVID-19 period pursuant to the Tenant Safe Harbor Act. Money judgments may be awarded. For more information, read our blog HERE;
  • Residential foreclosure proceedings based on nonpayment due to COVID-19 are prohibited until August 20, 2020 pursuant to Executive Order 202.28;
  • Commercial foreclosure proceedings based on nonpayment due to COVID-19 are prohibited until August 5, 2020 pursuant to Executive Order 202.48;
  • Commercial evictions based on nonpayment are prohibited until August 5, 2020 pursuant to Executive Order 202.48; and
  • Commercial holdover proceedings may be commenced beginning June 21, 2020 pursuant to Executive Order 202.8.

Landlords and lenders are advised to contact counsel to ensure that all laws, executive orders, and court directives in place due to the coronavirus pandemic are followed. As noted in our recent blog HERE, eviction and foreclosure proceedings now require that the petitioner/plaintiff file additional forms with the commencement documents pursuant to recent directives from Administrative Judge Lawrence K. Marks dated June 18, 2020 and June 23, 2020.

Thursday, May 21, 2020

Commercial Personal Guaranties Deemed Unenforceable in NYC Council’s COVID-19 Relief Bill – Litigation to Follow if Enacted

On May 13, 2020, the NYC Council approved Int. No. 1932-A, which makes substantial changes to personal guaranties in commercial leases. The bill is on the Mayor’s desk to be enacted.

The bill’s purpose is to provide relief to NYC commercial tenants impacted by COVID-19. It temporarily prohibits the enforcement of personal liability provisions in commercial leases or rental agreements. It would amend the Administrative Code of the City of New York by adding Section 22-1005 and adding Paragraph 14 to Subdivision a of section 22-902 of the NYC Administrative Code.

If enacted, the bill would render guarantee provisions unenforceable against natural persons who are not a tenant in commercial leases or other rental real property. The law would only impact liability for the payment of rent and other charges caused by an occurrence of default, and subject to the following conditions:
1. The tenant must satisfy at least one of the following:
a)     The tenant was required to cease serving patrons food or beverage for on-premises consumption or to cease operation under EO 202.3;
b)     The tenant was a non-essential retail establishment subject to in-person limitations under guidance issued by the NYS Department of Economic Development pursuant to EO 202.6; or
c)     The tenant was required to close to members of the public under EO 202.7; and

2. The default or other event which caused the natural person to become personally liable for such obligation occurred between March 7, 2020 and September 30, 2020, inclusive.

Under the bill, an attempt to enforce a personal liability provision that the landlord knows or reasonably should know is unenforceable, pursuant to the above, shall be deemed commercial tenant harassment, which could result in compensatory and punitive damages and attorneys’ fees and court costs. See N.Y.C. Admin. Code § 22-903.

Sounds too good to be true for many tenants and often when it’s too good to be true, it’s untrue. Expect this law to be challenged on constitutional grounds should it be enacted. Specifically, the bill seems to impair the Contracts Clause of the United States Constitution because it retroactively affects personal guaranties entered into prior to the bill’s passing. For such a claim to succeed, the initial inquiry under the impairment of contracts clause contains three components:
  1. Whether there is a contractual relationship;
  2. Whether a change in law impairs that contractual relationship; and
  3. Whether the impairment is substantial. U.S.C.A. Const. Art. 1, § 10, cl. 1; American Economy Ins. Co. v. State, 30 N.Y.3d 136 (2017).
While tenants will surely argue that the bill doesn’t substantially impair the parties’ contractual relationship, as the bill only covers rent and payments for the period of March 7, 2020 to September 30, 2020, landlords will counter that the personal guarantee was a material term of the lease and a substantial reason that the landlord agreed to enter into the contract.

For analogy, the Court of Appeals has previously struck down similar government interference in contacts. In Patterson v. Carey, the Court of Appeals struck down a law which curtailed toll authority bondholders’ ability to increase their tolls for Jones Beach State Parkway on constitutional grounds. 41 N.Y.2d 714 (1977). 

If the NYC bill passes, it would likely undergo similar challenges and review as the law in Patterson and be deemed unconstitutional. The bill’s impairment to contractual rights agreed upon by landlords and guarantors would be substantial, especially considering that the bill does not merely delay a landlord’s right to enforce the guarantee during the period stated in the bill, it extinguishes it altogether.

Mayor DeBlasio has until June 12, 2020 to either sign, veto, or do nothing. If the Mayor signs the bill or does nothing, the bill will automatically become law. If the Mayor vetoes the bill, it is sent back to the Council. The Council can then override the Mayor’s veto with a 2/3 vote.

In the meantime, both landlords and tenants should contact their attorneys to ensure that their interests are protected and to prepare for expected lawsuits to follow. For ideas on how to creatively resolve lease issues due to coronavirus and for tips on important lease provisions when renegotiating, listen to our podcasts HERE and HERE.

Wednesday, March 18, 2020

Coronavirus Frustrates the Purpose of a Sit Down Restaurant's Lease, No?

Can a tenant terminate a lease because their purpose was frustrated?

We are getting contacted by restaurateurs who want to get out of their lease because they have to close their sit down / dine in operation and only offer delivery / take out, but can they?

The appellate courts have held that "[i]n order to invoke this defense, 'the frustrated purpose must be so completely the basis of the contract that, as both parties understood, without it, the transaction would have made little sense.'"

On that holding, the doctrine of frustration of purpose seems like it may get a restauranteur out of their lease.

In that holding, an office was able to terminate their lease because the CO didn't permit office use. Through analogizing to where an office tenant utilized frustration of purpose to get out of a lease because of an "inability to lawfully use the premises" based upon the CO, it's possible that a restaurateur can utilize the doctrine of frustration of purpose to terminate the lease where the purpose of the lease was to offer sit-down dining and now the same is not allowed as a matter of law.

However, appellate courts have also held that "a frustration of purpose defense 'is not available when the event preventing performance was foreseeable.'"

Expect a lot of restaurants to make this argument going forward and the issue of foreseeability will be everything if it gets to a trial. 

Thursday, March 12, 2020

Coronavirus & Commercial Leasing: What happens when your tenant doesn't pay rent?

Landlords - Here is your future:
  • There is a Coronavirus quarantine (voluntary or mandatory), which closes your property;
  • Tenant is forced to close;
  • Being closed, tenant makes no revenue or limited revenue from working from home;
  • Without revenue, tenant defaults on rent;
  • Without rent, landlord is now at risk of foreclosure and bankruptcy; and
  • Consequently, landlord will need to enforce its lease to stave off foreclosure and bankruptcy.

Can landlord successfully enforce its commercial lease?

If landlord seeks to enforce the lease, tenant will likely counterclaim for a rent abatement (reduction or elimination of rent) because of its inability to utilize the property. 

Who is going to win? 

The result likely depends on whether the lease has a clause called a "Force Majeure" or "Non-Performance" or something like that. 

This clause may read something like this: 
The Parties shall not be liable for any failure, delay or interruption in performing such Party's respective obligations hereunder due to causes or conditions beyond the control of such Party. Further, such Party shall not be liable unless the failure, delay or interruption shall result from the failure on the part of such Party to use reasonable care to prevent or reasonable efforts to cure such failure, delay or interruption.
"Causes or conditions beyond the control of such Party", shall mean and include acts of God ... war ... acts of third parties for which such Party is not responsible ... or any other condition or circumstances, whether similar to or different from the foregoing (it being agreed that the foregoing enumeration shall not limit or be characteristic of such conditions or circumstances) which is beyond the control of such Party or which could not be prevented or remedied by reasonable effort and at reasonable expense.
If the clause exists, the landlord has a shot at victory, but without the clause, the tenant will likely prevail, at least in part.

If the clause exists, the landlord's victory is dependent on the specific language of the clause. That is because of the rule that "[o]rdinarily, only if the force majeure clause specifically includes the event that actually prevents a party's performance will that party be excused." As a result, the language of the clause is everything.

Assuming the sample clause exists in the lease, here are the impending battlegrounds for ensuing litigation on enforcing the lease:

  • Is Coronavirus an act of god? 
  • If yes, is a quarantine resulting from Coronavirus also an act of god?
  • If no, is a quarantine resulting from Coronavirus an act of third-parties? 
  • If yes, did landlord undertake efforts to prevent the quarantine at the property? 
  • If yes, were those efforts reasonable? 
  • If no, did landlord undertake efforts to remedy the Coronavirus spread at the property?
  • If yes, were those efforts reasonable?  

We know that these lawsuits are coming and they are going to come fast. These lawsuits came after 9/11 - see One World Trade Center LLC v. Cantor Fitzgerald Securities. Only this time they are going to be everywhere because unlike 9/11, Coronavirus is everywhere.

Landlords - now is the time to ascertain your rights, determine your enforcement plan and create a contingency strategy. If you cannot enforce your lease, it's time to contact your lender and seek a forbearance (temporary reprieve from mortgage payments to avoid foreclosure). Doing nothing will create a strong likelihood of foreclosure and bankruptcy. It's time to act.