Section 8 Discrimination Cases Against Housing Providers, Brokerages, and Property Managers Face New Motions to Dismiss After New York Decision

In a significant decision for housing providers across New York and beyond, the New York Appellate Division, Third Department, affirmed the dismissal of a source-of-income discrimination enforcement action on constitutional grounds.

The case, The People of the State of New York v. Commons West, LLC, holds that enforcing New York’s source-of-income protections under Executive Law § 296(5)(a)(1) facially violates the Fourth Amendment when it effectively compels landlords to participate in the federal Section 8 Housing Choice Voucher Program which requires governmental inspections and providing records to the government.

Although the decision will likely be appealed to the New York Court of Appeals (highest state court), it currently stands as binding appellate authority throughout the state, and persuasive authority in all other states.

For defendants facing source-of-income discrimination claims, the ruling immediately alters the litigation landscape.

Key Takeaway: In People of the State of New York v. Commons West, LLC, the Appellate Division held that enforcing source-of-income discrimination laws to compel participation in the Section 8 Housing Choice Voucher Program violates the Fourth Amendment because the program requires consent to government inspections and access to records. As a result, defendants in Section 8 discrimination cases may now assert constitutional defenses and pursue motions to dismiss in courts and administrative proceedings across New York.

The Constitutional Conflict Behind the Case

New York law prohibits discrimination based on lawful source of income, including participation in the Section 8 Housing Choice Voucher Program.

The Third Department concluded, however, that enforcing this requirement against landlords forces them to submit to government inspections and provide records as a condition of renting to voucher holders.

Under federal Section 8 regulations:

• Local public housing authorities must inspect rental units before occupancy.
• Units must meet federal housing quality standards.
• Inspections must occur at least every two years.
• Landlords must provide records relating to rents and comparable units.
• Landlords must sign a Housing Assistance Payment (HAP) contract granting “full and free access” to the premises and records.

These requirements arise from 42 U.S.C. § 1437f and related federal regulations, including 24 CFR 5.703 and 24 CFR 982.405.

The Appellate Division concluded that forcing landlords to participate in a program requiring inspections and document access constitutes an unconstitutional condition.

Put simply, the government cannot require property owners to waive Fourth Amendment protections against unreasonable searches as a condition of complying with state anti-discrimination law.

A Credible Threat of Enforcement Is Enough

The court did not require proof that inspections had already occurred, and in the case before the court, they admittedly did not occur.

Instead, it held that a credible threat of enforcement was sufficient to establish the constitutional violation, which credible threat exists merely from participation in the Section 8 Program.

As the court explained, participation in the program requires landlords “to consent to governmental searches of their rental properties and records.”

Because enforcement of the Human Rights Law would compel landlords to enter a program requiring those searches, the action was dismissed.

Why This Decision Matters for Housing Providers

For landlords, property managers, and real estate brokerage professionals, the decision creates a significant new defense in source-of-income discrimination cases.

Until reversed by the Court of Appeals, defendants should evaluate whether to pursue motions to dismiss in matters pending before:

• New York State courts
• Federal courts
• The New York State Division of Human Rights
• The New York City Commission on Human Rights
• Other administrative enforcement bodies

In each forum, the constitutional analysis in Commons West may undermine enforcement of claims tied to Section 8 participation.

An Industry Inflection Point for Real Estate Brokerage / Property Management Compliance

The decision in People v. Commons West, LLC marks a turning point in how source-of-income discrimination cases are litigated across the real estate industry.

For years, enforcement actions involving Section 8 participation have targeted not only housing providers, but also real estate brokerages and their agents as well as property managers. Brokerage firms are frequently named as respondents based on statements by agents, listing language, or allegations that voucher-backed applicants were discouraged during the rental process.

This appellate ruling introduces a new constitutional dimension to those cases, which has been argued before, but now has binding effect.

If participation in Section 8 requires landlords to consent to government inspections and disclosure of records, and courts determine that compelling such participation violates the Fourth Amendment, then the legal foundation of certain source-of-income enforcement actions may be vulnerable.

For brokerage firms operating across New York, this raises broader compliance and litigation considerations. Defense counsel should begin levaraging this constitutional argument in administrative proceedings and court cases involving voucher-related discrimination claims.

Regulators and plaintiff-side attorneys will almost certainly attempt to limit the reach of the decision until the issue is resolved by the New York Court of Appeals, at least to only Section 8 rather than applying it to all forms of source of income discrimination as the decision was written broadly.

In the interim, Commons West has the potential to reshape how Section 8 discrimination claims are defended throughout the real estate industry.

All housing providers, real estate brokers, and property managers facing source-of-income discrimination claims should immediately evaluate whether a motion to dismiss is warranted in light of People v. Commons West, LLC.

If your business has been named in a Section 8 discrimination complaint, the defense strategy may have changed overnight.

Lieb at Law, P.C. represents housing providers, property managers, and brokerage firms in discrimination defense and constitutional challenges in state courts, federal courts, and administrative proceedings throughout New York, New Jersey, and Connecticut.

Contact our litigation team to evaluate whether this new precedent creates a viable motion to dismiss in your case.

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Law on Access to Adjoining Property for Improvements or Repairs Updated in NYS

Starting on December 5, 2025, RPAPL 881 offers a new framework under S3799C for a property owner seeking a court ordered license in a special proceeding to access their neighbor's property in order to make improvements or repairs. As the bill jacket explains, sometimes "owners and their neighbors cannot work out a solution without going to court" and the prior law, from 1968, is now being updated to be more predictable. The framework makes it easier to name lessees into the proceeding as their rights will be adversely impacted and they are a necessary party to such lawsuits. It also clarifies that a licensee can be obtained for a preconstruction survey to document the existing condition of the property, to address vibration, cracks, optical monitoring devices, protective coverings for the property, scaffolding, bracing, building supports, flashing, and construction staging necessary to complete work, amongst others. The new law also requires the licensee to maintain commercial general liability insurance for damages to persons or property with the adjoining owner as an additional insured. Finally, to the good stuff, "[t]he licensee shall be required to reasonably compensate the adjoining owner for the loss of use and enjoyment of the adjoining premises including diminution in value." plus, "to reimburse the adjoining owner for reasonable fees incurred in connection with the review of relevant documents for the installation, maintenance, inspection, repair, replacement or removal of devices, structures, materials or equipment on the adjoining property."

If you’re facing a construction-access fight with a neighbor, or you need to secure compensation for loss of use, we handle RPAPL 881 litigation. Contact Lieb at Law to protect your rights and your property.

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How New York Assembly Bill A2739 Could Give Homeowners a Leg Up in Foreclosure Defense

As of December 8, 2025, Assembly Bill A2739 has cleared the Senate and Assembly and is now sitting on Governor Kathy Hochul’s desk. If she signs it, this little-known bill could give homeowners in default a real edge against foreclosure. The law would require mortgage lenders to accept and immediately apply payments made in reliance on a payoff statement – no more excuses, no more “we’ll hold it in suspense.” As long as you pay where and how your lender says to, your money counts toward your loan balance. That’s a big deal because right now, lenders can refuse partial payments or take them without actually reducing what you owe.

Here’s the exciting part: combine this law with the state’s mandatory settlement conferences, and homeowners suddenly have a legally backed, game-changing strategy to slow down foreclosure. You can make installment payments to chip away at your default and potentially save your home – all without needing a full payoff, a modification, or a short sale. It’s a way to fight back while saving time, money, and headaches.

If the bill becomes law, homeowners should be prepared for possible delays or added complexity when requesting payoff statements and making payments. If you’re facing foreclosure and want to make sure every payment counts, contact Lieb at Law, P.C. – because now, your money can finally work for you.

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Foreclosure Abuse Prevention Act (FAPA) Is Now Retroactive. Here’s What That Means for NY Foreclosures.

The Foreclosure Abuse Prevention Act (FAPA), which was enacted in December 2022, stops mortgage lenders from abusing the 6-year statute of limitations in foreclosure actions. FAPA achieves this by confirming that once a lender accelerates a mortgage, demanding the entire loan balance, the acceleration is not automatically revoked (de-accelerated) if the lender voluntarily discontinues the action, thereby preventing the lender from attempting to start a new foreclosure case years later.

However, what happens when this acceleration / de-acceleration stuff happened before 2023? 

 

The NYS Court of Appeals (the state's highest court), just ruled that FAPA has "retroactive effect" in Van Dyke v U.S. Bank, Natl. Assn. to the extent that it is invoked in a case where "a final judgment of foreclosure and sale has not been enforced." 

So, even for older cases, FAPA needs to be evaluated. 

If you have such a loan, you should consider bringing a quiet title action to remove the mortgage from your homeownership. If you’re facing a foreclosure or challenging an old acceleration, get legal help now from Lieb at Law, P.C. Our litigation team can review your timeline and use FAPA to protect your home. 

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NYS' Highest Court Addresses a Good Guy Guaranty Conditioned on Tenant's Surrender

Does a surrender require acceptance for it be effective in landlord / tenant law? Well, that really depends on the lease as we recently learned from NYS' highest court, the Court of Appeals. Before the Court was a good guy guaranty being litigated. "[A] 'good guy' guaranty is a limited guaranty in which the guarantor’s obligation extends only up to the point that the tenant surrenders the premises to the landlord, leaving the tenant solely responsible for rent due from that point forward" according to the Court in 1995 CAM LLC v. West Side Advisors, LLC, et al. This is a huge reminder because in commercial real estate litigation, tenants are often dumbfounded to learn that the good guy guaranty does not excuse the tenant from liability, just the guarantor. Regardless, the case before the highest court was far more nuanced and involved another real issue that frequently arises in commercial real estate litigation - the interplay of a tenant vacating a tenancy and a landlord accepting a surrender. Stated otherwise, the Court needed to determine whether the guarantor's "liability ends with [tenant's] surrender of possession, or with [landlord's] acceptance of surrender." In deciding this issue, and while being mindful that the contractual language at issue could change the result, the Court found that the landlord's acceptance of surrender was irrelevant to the issue because acceptance would result in the landlord never accepting and the lease running its course and therefore, the good guy language of the lease would be superfluous. Therefore, the Court reminded us that "[i]mportantly, an interpretation that renders language in the guaranty superfluous is “a view unsupportable under standard principles of contract interpretation” (Lawyers’ Fund for Client Protection of State of N.Y. v Bank Leumi Tr. Co. of New York, 94 NY2d 398, 404 [2000]).

Litigation over a lease or guaranty?
Lieb at Law’s litigation team represents landlords in high-stakes real estate disputes across New York, New Jersey and Connecticut. Contact us to build your case.

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90 Day Notice Required As Condition Precedent to Condo / Homeowners' Association Enforcement of Lien Action

Homeowners' association and condominium boards must now provide, at least, a 90 day notice prior to commencing an action to enforce a lien for unpaid common charges, assessments, fines or fees pursuant to s7413. This notice must be provided to both the property address and any other address of record in at least fourteen point type and it must include the specific amount due. 

If you're a board member or managing agent, make sure your lien enforcement process complies with the new 90-day notice rule.
📞 Contact Lieb at Law, P.C. to review your HOA or condo’s collection procedures and avoid costly legal missteps. 

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FARE Act - Landlord's Brokerage Commission from the Landlord only, NOT the Tenant

NYC rentals changed on June 11, 2025 forever. 

Historically, landlords hired brokers to list their rentals with the plan to make the tenant pay the landlord's broker (a/k/a, listing agent), as an additional fee set forth in the lease. This created a problem where tenants then had to do math and add that cost to the cost of their rental to know how expensive leasing the property was going to be. Now, NYC has determined that math is not for tenants, but only for landlords moving forward. As such, landlords now need to build that cost into their lease charges (i.e., gross up) and pay their broker's commission directly without tenant involvement. 

That's all fine and good; albeit slightly pointless, but the rub is in the statutory language, which is going to result in lawsuits. 

Specifically, the FARE Act doesn't just prevent this practice in the future, but it prohibits a broker from collecting a fee that was previously earned and legally, vested, in the broker, but not yet paid. This means that a broker, who did the work, now can't be paid by a facial reading of the statute. Good thing that the Contracts Clause of the US Constitution renders this provision unenforceable because otherwise the government will have brokers be forced to have worked for free without landlords and tenants ever having to pay for those services.

Here's another rub in the statute; A landlord who has a listing agreement with a broker that says that the tenant pays because, now, the tenant legally can't pay. So, will that landlord let the broker out of the contract or will that landlord insist that the broker needs to work for free because the contract signed with the broker says the broker will work for free for the landlord. This seems like it is going to result in a lot of litigation to rescind these listing agreements under the Frustration of Purpose Doctrine. 

The final issue is the requirement that the landlord or their agent must now provide an itemized written disclosure of any fees that the tenant must pay to the landlord, or to any other person at the direction of the landlord, in connection with such rental. However, what about when the fees are at the direction of the co-op or condo, but such direction is set forth in the House Rules / Bylaws that are incorporated into the landlord's lease? Whose direction is that at?  

If you are a residential landlord or broker, you must be sure to read the FARE Act, at section 20-699 of the NYC Admin. Code or subchapter 15 of Section 1 of Chapter 4 of title 20, and what NYC is putting out there about the law so that you can know what you have to do before you face a private lawsuit, fines, and/or restitution of any fees previously collected.

Addressing Legal Needs for Real Estate Brokerages

Lieb at Law represents many of the nation's largest real estate brokerage companies in addition to small and medium-sized offices and individual licensees. The firm's services range from advising cutting edge PropTech startups on corporate structuring and securities laws from seed round to operational compliance and more. We also offer traditional brokerage firms full litigation services.

Lieb at Law's real estate brokerage litigation services includes representation in courts, arbitrations, and mediation where we conduct hearings, trials, and appeals in addition to negotiating favorable settlements,on such topics as:

• Anti Competitive Practices
• Breach of Fiduciary Duty
• Commission Disputes / Affidavits of Entitlement
• Fair Housing & Discrimination
• False Advertising
• Fraud / Fraudulent Inducement
• License Law Violations and Administrative Complaints before the Government
• NAR / REBNY Ethics & MLS / RLS Complaints
• Subpoenaed Non-Party Witness Representation

In addition to their litigation expertise, Lieb at Law assists in mitigating litigation risk by developing customized policies, forms, and procedures for each company, aimed at enhancing overall compliance and reducing legal challenges. They draft independent contractor agreements, in compliance with such laws as the Freelance Isn't Free Act, and employment agreements, so as to avoid misclassification issues. Furthermore, their extensive training programs for licensees, including digital on-demand sessions, play a crucial role in equipping real estate broker's to defend against lawsuits effectively.

Lieb at Law's trainings and policies are meticulously crafted to mitigate litigation risks. Led by Attorney Andrew Lieb, their compliance courses provide invaluable insights and practical guidance, helping licensees, managers, and other employees and independent contractors, stay up-to-date with regulatory requirements and industry best practices.

Explore Lieb at Law's comprehensive range of TRAININGS & CERTIFICATIONS, covering essential topics such as Fair Housing & Discrimination, Rental Training, Subsidies Training, Housing Security and Tenant Protection Act of 2019, Agency Disclosure, Sexual Harassment Prevention Training, New Agent Training / Orientation Training, Commercial Compliance, Property Manager Compliance, License Law Annual Updates, and License Obligations.

At Lieb at Law, they understand the importance of proactive legal measures and ongoing education in safeguarding the interests of real estate brokerage companies. Trust Lieb at Law to be your strategic partner in navigating legal challenges and ensuring compliance in today's changing real estate brokerage industry.

Contact Lieb at Law today.  

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To learn more about real estate trainings contact Lieb

Navigating Real Estate Discrimination - Your FAQs Answered

Real estate discrimination must be fought any time you’re buying, selling, or renting any type of housing or commercial property. Real estate discrimination involves unfair treatment because of your source of income, disability, race, religion, sex, gender, and many other protected classes. Because discrimination in the housing market can be attributed to so many factors, it’s crucial for buyers, sellers, and renters to be familiar with their rights. Learn more about real estate discrimination through our answers to your most frequently asked questions below.

If you are a real estate broker or salesperson charged with discrimination, contact Lieb at Law to learn how we can defend you with our team of real estate discrimination lawyers.

Is real estate discrimination illegal?

Yes. Discrimination in real estate is illegal throughout the United States. In some states, like New York, there are even greater protections, rights, and damages available to victims of housing discrimination. You are entitled to compensation whether you were discriminated against by a seller, landlord, tenant co-op, condo, HOA, lender, real estate broker, salesperson, or property manager.

Does real estate discrimination only apply to housing?

No. Real estate discrimination laws apply to both housing and places of public accommodation. Examples include shopping centers, professional offices, retail stores, recreational facilities, service centers, and educational institutions.

Can I sue for housing discrimination?

Yes. Not only is it possible to sue for real estate discrimination, but Lieb at Law, P.C. has helped countless individuals recover compensatory damages and punitive damages for the emotional distress inflicted by this unlawful act. If you or a loved one were discriminated against because of your protected status or class, it is critical to work with an experienced attorney who will fight to ensure that you receive the compensation you deserve.

What qualifies as discrimination?

Discrimination is classified as unfair treatment to an individual because of their protected status or class. These statuses/classes vary throughout the United States, but may include race, ethnic background, visible traits (hair texture, hairstyle, donning of religious garments or items), color, national origin, citizenship status, alienage status, immigration status, lawful source of income (subsidy recipient status), occupation, religion, creed, marital status, partnership status, sex, gender, sexual orientation, gender identity or expression (transgender status), domestic violence victim status, stalking victim status, sex offense victim status, familial status, pregnancy, presence of children, handicap (disability), age, military status, uniformed service, veteran status, first responder status, arrest record, and sealed conviction record.

Can a real estate / housing provider change the terms of a lease or contract based on my protected class?

No. The law prevents real estate / housing providers from changing the terms, conditions, privileges, and/or availability of property based on your protected class status. It requires real estate brokers / salespersons to give you written disclosures that advise you of your rights. It prevents you from being treated differently from others where only the terms of your offer matter, not who you are.

Are handicapped individuals entitled to housing accommodations?

Yes. If you are handicapped or disabled, you are entitled to receive reasonable accommodations and reasonable modifications to allow you to equally use and enjoy the property. Your actual diagnosis does not need to be revealed and can remain confidential if you seek an accommodation or modification. In addition, the cost of the accommodation cannot be charged to you. In places like New York City, the cost of modifications cannot be charged to you either.

What are common examples of disability cases concerning housing discrimination?

The most common handicap and disability cases that we see involve service animals or emotional support animals in no pet properties. Other types of cases include parking issues, egress ramps for mobility impairments, and additional failure-to-accommodate cases. When it comes to accommodating the rights of handicapped and disabled individuals, providing access is essential.

Can I be discriminated against based on my source of income?

Whether you receive subsidies, like Section 8 (Housing Choice Vouchers), or are unemployed and receive child support, disability, spousal support, or have a trust fund, your source of income cannot impact your housing choices. The law protects you from offensive signage, improper applications, and/or wrongful questionnaires if they inquire about your employment status, request your W-2, or solicit a letter of employment. Where you get your rent money is your business and yours alone.

Can I be retaliated against if I proceed with a discrimination lawsuit?

Don't be afraid to speak-up. If you are advancing a fair housing and/or anti-discrimination right, you are protected from retaliation. Even if it is ultimately found that you were not discriminated against, you can be compensated for facing unlawful coercion, intimidation, threats, or other types of interference with your anti-discrimination rights. It also applies if you are an ally who is aiding and/or encouraging someone else to exercise their rights to be free from discrimination.

What happens if I win my housing discrimination case?

As the victim, you can recover compensatory damages, punitive damages, and your attorneys’ fees. The perpetrator can lose their license (if applicable), be required to take trainings, be made to pay fines, and be ordered to stop their offensive behavior. Working with a top discrimination attorney affords you the best possible chance at a successful outcome to your case. If you or a loved one has been treated unfairly and is in need of legal assistance, contact Lieb at Law today.

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New Law for Foreclosures / Evictions with Deed Theft

On November 14, 2023, Governor Hochul enacted A06656, amending Section 756-a of New York State's Real Property Actions and Proceedings Law. This amendment is designed to safeguard real property owners from the threat of not resolving claims of potential deed theft fast enough while an eviction or foreclosure is pending. 

This amendment permits a stay of any proceeding to recover possession of or resoling title disputes concerning residential properties when there are underlying issues of deed theft or title disputes. This provision applies specifically when there is a pending good faith investigation into the theft or fraud in the title to, or the financing of, the premises that is the subject of any proceeding for eviction or foreclosure.

This measure will serve as a safeguard, mitigating the risk of homeowners who may, unknowingly, lose their residences.

If an individual is convicted of a criminal offense related to deed theft or fraudulent transactions involving real property, this conviction gives rise to a rebuttable presumption of fraud in the deed transfer, so filing charges needs to be part of a strategic litigation strategy moving forward. In fact, if you file, the District Attorney or Attorney General is then entitled to seek the nullification of the deed transfer. The implicated individual must establish by a preponderance of the evidence that the deed was not procured through fraudulent means.

This amendment goes into effect December 14, 2023. 

New Law: Foreclosure Standing Never Waived - Renew Your Case Today

On December 23, 2019, S5160 was enacted and "the defense, in a mortgage foreclosure action, of the plaintiff's lack of standing is not waived because of the defendant's failure to raise such defense in his or her responsive pleading."

A standing defense is utilized to argue that the plaintiff is not the right party to sue in that it's not the owner of the mortgage or debt and has not been appointed the power by such owner to pursue the lawsuit. This is one of the most significant changes to the foreclosure litigation practice since the Great Recession and will impact litigation for years to come.

Real Property Actions and Proceedings Law section 1302-a is an early Christmas present to defendants in ongoing litigation as it took effect immediately and appears to apply up until sale even if a Judgment of Foreclosure has already been ordered. Specifically, the new section states that "[a] defendant may not raise an objection or defense of lack of standing following a foreclosure sale." As such, it appears the defense of standing can be raised at any time before the sale.

If you are defending a case that is post-Judgment of Foreclosure and Sale and pre-auction sale, you may want to consider bringing an Order to Show Cause with a Motion to Renew pursuant to Civil Practice Law & Rules Rule 2221-e immediately.

Co-op Purchaser Application Fees Eliminated by Tenant Protection Act?

Co-ops sales may be subject to the Housing Stability and Tenant Protection Act. Forget what "our attorneys" have said - here is the go to analysis for prospective litigation on the issue. 

Read the full article by Andrew Lieb published in The Suffolk Lawyer here.