Wednesday, November 11, 2020

Building Code Violation Law Passed in NYS

Starting on December 11, 2020 there will be time limits to remedy any determinations of building code violations in NYS per new law


The Real property Actions and Proceedings Law (RPAPL) 777(a) has been amended to ensure that no code violations or dangerous conditions remain outstanding for "more than sixty days from the date of the order of the court" if the owner (or mortgagee or liener) enters into a consent order to remedy the issue upon the petition being granted against such owner. 


We expect that this sixty day period will be applied by the various town / city / village attorneys in plea agreements as well. 


Now, there is a rush to fix unless good cause for delay can be shown.




NYS Passes Law to Increase Free Speech & Public Participation

Effective November 10, 2020, NYS strengthened its laws against lawsuits that are brought and intended to chill free speech, called Strategic Lawsuits Against Public Participation ("SLAPP suits"). 


NYS' prior anti-SLAPP / free speech law had been limited to protecting speech concerning "controversies over a public application or permit, usually in a real estate development situation." 


Now, the anti-SLAPP law deals with "anything other than a 'purely private matter.'" Additionally, the law now requires courts to provide costs and attorney's fees if a lawsuit against public petition and participation was initiated in bad faith to chill speech. 


The new laws are Civil Rights Law 70-a, which deals with the costs and attorney's fees, and Civil Rights Law 76-a, which expands the types of speech that is protected by the anti-SLAPP law. Specifically, Civil Rights Law 76-a now permits a suit concerning "[a]ny communication in a place open to the public or a public forum in connection with an issue of public interest; or ii. [a]ny other lawful conduct in furtherance of the exercise of the constitutional right of free speech in connection with an issue of public interest, or in furtherance of the exercise of the constitutional right of petition."


To read the full bill, click here








Tuesday, November 10, 2020

New Real Estate Brokerage Advertising Regulations

Are you ever confused about who the broker is when you search for property online? Thankfully, the NYS advertising regulations were just amended to adequately disclose to the consumer who the exclusive agent is. The specific updates are included in Andrew Lieb's latest article published in The Suffolk Lawyer, law journal. CLICK HERE FOR THE FULL ARTICLE. 





Fair Housing Guidance Procedure Unveiled in New Interim Final Rule

Get your anti-discrimination guidance starting on December 10, 2020 on HUD's new searchable website, which will also give guidance on lending, foreclosures, and much more. 


Currently, guidance is available here.  


Starting on December 10, 2020, HUD will make available "a single, searchable, indexed website," and make guidance subject to a 30 day public comment period with a procedure for the public to petition to modify or withdraw guidance per its Interim Final Rule available at 85 FR 71537.


HUD guidance documents "are statements of general applicability and future effect that set forth policy on statutory, regulatory, or technical issues or interpret statute or regulation." In plain English, guidance advises industry as to HUD's interpretation of laws as applicable to described activity. As such, industry is better able to function, in a regulated environment, when industry can request direction on gray areas of law prior to making investment or taking action in that area. 


As background, "[o]n October 9, 2019 (84 FR 55235), the President issued E.O. 13891, “Promoting the Rule of Law Through Improved Agency Guidance Documents," which "requires that each Federal agency take certain actions to ensure the transparent availability and use of guidance documents." This Interim Final Rule is made in satisfaction of the E.O.




Monday, November 02, 2020

New Discrimination Standard Under the Fair Housing Act is Effective

Effective October 26, 2020, HUD implemented a new disparate impact fair housing standard.

 

Disparate impact discrimination occurs when housing practices have an unjustified discriminatory effect even though they were not motivated by a discriminatory intent. 


The new standard exists at 24 CFR 100.500 and it makes a claim of disparate impact discrimination far harder to bring and even harder to prove as compared to the prior HUD standard.


Previously, the regulation did not contain an express pleading standard and instead, only required the plaintiff to prove "that a challenged practice caused or predictably will cause a discriminatory effect." 


Now a plaintiff must "sufficiently plead facts to support each of the following elements: (1) That the challenged policy or practice is arbitrary, artificial, and unnecessary to achieve a valid interest or legitimate objective such as a practical business, profit, policy consideration, or requirement of law; (2) That the challenged policy or practice has a disproportionately adverse effect on members of a protected class; (3) That there is a robust causal link between the challenged policy or practice and the adverse effect on members of a protected class, meaning that the specific policy or practice is the direct cause of the discriminatory effect; (4) That the alleged disparity caused by the policy or practice is significant; and (5) That there is a direct relation between the injury asserted and the injurious conduct alleged."


With respect to the 3rd element, that is a very heavy burden for a plaintiff to satisfy at the pleading stage of litigation because the requisite evidence is often unavailable until the parties have engaged in the discovery process. 


Moreover, while the prior regulation provided that a defendant would then have to rebut the claim by "proving that the challenged practice is necessary to achieve one or more substantial, legitimate, nondiscriminatory interests[,]" a defendant now can just rebut the first element "by producing evidence showing that the challenged policy or practice advances a valid interest (or interests) and is therefore not arbitrary, artificial, and unnecessary." Changing the term from a "substantial" interest to "a valid interest" results in the defendant's burden seemingly being far lower.

 

Moreover, under the new standard, once the defendant rebuts the first element, "the plaintiff must prove by the preponderance of the evidence either that the interest (or interests) advanced by the defendant are not valid or that a less discriminatory policy or practice exists that would serve the defendant’s identified interest (or interests) in an equally effective manner without imposing materially greater costs on, or creating other material burdens for, the defendant." Previously, this was the defendant's burden. 


Regardless, there are now also 3 express defenses available, including that "(i) The policy or practice is intended to predict an occurrence of an outcome, the prediction represents a valid interest, and the outcome predicted by the policy or practice does not or would not have a disparate impact on protected classes compared to similarly situated individuals not part of the protected class, with respect to the allegations under paragraph (b). This is not an adequate defense, however, if the plaintiff demonstrates that an alternative, less discriminatory policy or practice would result in the same outcome of the policy or practice, without imposing materially greater costs on, or creating other material burdens for the defendant. (ii) The plaintiff has failed to establish that a policy or practice has a discriminatory effect under paragraph (c) of this section. (iii) The defendant’s policy or practice is reasonably necessary to comply with a third party requirement, such as a: (A) Federal, state, or local law; (B) Binding or controlling court, arbitral, administrative order or opinion; or (C) Binding or controlling regulatory, administrative, or government guidance or requirement."


Housing participants should be particularly interested in the third available defense in the form of a controlling administrative opinion or binding regulatory guidance. It is strenuously suggested that every housing industry participant seeks such opinion or guidance as a necessary incident of any business plan covering a new product or service. To fail to do so is just reckless in a world where such a defense exists. 


That being said, it is noted that this regulation only pertains to a federal housing discrimination claim and states and locales may offer increased protections to their citizens. So, these other laws must also be analyzed for housing participants to the extent that they afford disparate impact claims (e.g., NYC Admin. Code).