Understanding the Anti-Harassment Housing Laws in NYC
For the first time since the passage of the first anti-harassment housing law, a comprehensive review of those laws and their applicability, purpose, penalties, and dates of effectiveness have been explained and analyzed in detail. The authors have sought to educate practitioners and their clients on this vastly misunderstood body of law. One of the most far ranging and most amended areas of New York City landlord-tenant law is the regulation of what constitutes “harassment” in the residential context.
A look at the current ordinance shows that there is a wide variety of prohibited conduct and, by the numbering scheme, a complex history of amendment. When a tenant brings a harassment suit for which allegations span over a period of years, the court examines both when the alleged misconduct took place and whether that particular behavior was forbidden at the time alleged by the tenant.
The ordinance in question is located in the Definitions section of the Housing Maintenance Code (Administrative Code §27-2004), despite the fact, as will be made clear, that many of the behaviors discussed in the section have absolutely nothing to do with the physical maintenance of residential property.
Rather, the City Council wrote these matters into the Housing Maintenance Code in order to enforce its provisions in the Housing Court. The full text of the harassment definitional provisions (Administrative Code §27-2004(a)(48)) appears at [New York City Administrative Code § 27-2004: Definitions]. This text sets forth each provision in the Code and when it was enacted. Because the Housing Maintenance Code was enacted by the New York City Council rather than the New York State Legislature, it is an ordinance rather than a statute.
The Current Ordinance
With a quick glance at the full ordinance, it becomes apparent that many of its provisions wander far from the core purpose of defining harassment and enter, indeed, into substantive prohibitions on certain conduct and requirements for other conduct. For example, it counts filing repeated false certifications of corrections of building code violations as “harassment” against every tenant in the building, despite the fact that tenants in the building might be unaware of the misconduct.
Thus, the definition for harassment set forth by the ordinance in its most recent iterations has little connection to definitions of “harassment” in standard English dictionaries, all of which require that the victim be aware of the behaviors. Indeed, some of the prohibited behaviors in the ordinance are not directed at people at all. The people, if they are at all affected, may be mere collateral damage.
Some of the provisions of the ordinance only count particular conduct as “harassment” if the landlord has engaged in such behavior repeatedly. For example, deprivations of essential services count as “harassment” if they are so severe as to impair habitability or if they happen repeatedly throughout the building.
Evolution of the Ordinance
In the original 2008 version of the ordinance, there were seven categories of misbehavior (surviving in the present ordinance as subsections a through g) and all of them required an intent to get a tenant to vacate to constitute harassment.
Ten years later, the intent to occasion a vacatur or other waiver of tenant rights received a rebuttable presumption in its favor. At no time was the ordinance amended to indicate what such rebuttal would look like. However, in some of the categories of forbidden behavior, rebuttal is logically obvious, such as, for example, when a landlord is moving heaven and earth to get the boiler repaired but is nonetheless failing to accomplish it.
The ordinance, originally passed in 2008, has seen amendments in 2015, 2017, 2018, 2019, 2020, and 2023. Thus, any tenant’s attorney who seeks to prosecute an action based on a violation of conduct proscribed by this ordinance must ensure that the supposedly illegal conduct was already illegal at the time the conduct took place.
Levels of Evil
Furthermore, the current drafting of the ordinance is a combination of provisions that are malum in se and those that are merely malum prohibitum. The former category refers to actions that are genuinely evil, such as “removing the door at the entrance to an occupied” apartment (Subdivision f from the original 2008 version of the ordinance).
The latter category refers to actions that are illegal, but not generally regarded as immoral, such as making a buyout offer to a tenant without informing the tenant of the webpage the City maintains, setting forth tenants’ rights (Subdivision f-2, from the 2019 amendment). The kind of punishments dealt to landlords should ideally be linked to the severity of the immorality of the behavior.
Pure malum prohibitum violations of the ordinance should prompt lighter punishment than those that are malum in se. This is not to say that the malum prohibitum violations should go unpunished (and certainly not unenjoined), but that the severity of the punishment should correlate with the severity of the action and should account for intentions of universally recognized evil.
Yet, as there are so many provisions in the ordinance in its current form, it is difficult to distinguish prohibited evil conduct from prohibited conduct when regulating a contentious industry. Indeed, the surprisingly sparse case law on this ordinance generally does not report at all on these morally benign violations.
Provisions that do not necessarily involve moral failings include:
• Making a false statement on an application for a building permit (where the landlord does not realize the statement is false) (Subsection (a)(2));
• Repeated interruptions of essential services (where a landlord is trying to provide the service but cannot, such as when a needed part is not shipping) (Subsection b, b-1, and b-2);
• Removing a lawful occupant’s possessions (where the landlord did not know that the person in question was a lawful occupant or even an occupant at all) (Subsection e);
• Trying to buy out a tenant (Subsections f-1, f-2, but not f-3 which does seem limited to immoral behavior);
• Trying to communicate with a tenant outside of normal business hours (Section f-4); and
• Requesting ID, where the ID would show citizenship status (Section f-6).
Several of the provisions in the ordinance serve as extensions of other laws that regulate conduct having little or nothing to do with tenancy. Thus, the ordinance in its 2023 iteration (Subsection f-5), is one of the broadest prohibitions on discrimination found anywhere in legal literature. While it, of course, includes the classics of race, color, and creed, it goes on to prohibit vastly more forms of discrimination, including height and weight of the tenant. While neither of these categories is a recognized “disability” on its own, one could interpret this ordinance to require the installation of lower doorknobs for people who suffer from dwarfism. Indeed, the impact this section of the ordinance may have on kitchen cabinetry is completely open to speculation.
The full list of prohibited characteristics of persons threatened in the 2023 version is: “actual or perceived age, race, creed, color, national origin, gender, disability, marital status, partnership status, caregiver status, uniformed service, height, weight, sexual orientation, immigration or citizenship status, status as a victim of domestic violence or as a victim of sex offenses or stalking, lawful source of income or because children are, may be, or would be residing in such dwelling unit.”
Oddly in this list is “uniformed service,” which we can readily assume refers to the federal or state military and probably the police force of New York City or some other municipality. Still, there are a great number of jobs that require uniforms, including but not limited to governmental employees. The full extent of the enactment is difficult to ascertain.
The Buyout Provisions
Provisions regulating buyouts first appeared in the 2015 amendments, prior to the 2019 amendments to the Rent Regulatory laws, which disincentivized landlords to buy out tenants. These laws removed profitability from acquiring a new tenant, easing existing tenants’ concerns that the landlord will buy out their apartments.
What had been a highly profitable business for both landlords and tenants (and their respective attorneys) until 2019, vanished, leaving the elaborate requirements surrounding buyouts in the Harassment ordinance little more than an historic artifact.
However, any attorney who has landlords for clients must ascertain if the landlord does still do buyouts and if so, must point the clients to the full ritual requirements of the harassment law regarding them.
The COVID Provisions
In 2020, the City Council added provisions related to COVID-19. These provisions prohibited threats based on “such person’s actual or perceived status as an essential employee, status as a person impacted by COVID-19, or receipt of a rent concession or forbearance for any rent owed during the COVID-19 period.” (Subdivision f-7). In interpreting this paragraph, it is important to recognize that the phrase “such person’s actual or perceived status” encompasses both a person having the described quality, as well as a person lacking the described quality.
Thus, this paragraph prohibits threatening both persons who were essential employees and those who were not if such status was the basis of the threat. This provision is not quite as antique as it might appear since the Harassment ordinance does not include a statute of limitations. Under CPLR 213(1) this means that the limitations period for the damages provision of the ordinance may not be due to expire until some point in 2026 or even 2027 (and even later if an infant is involved).
Additionally, the ordinance speaks of rent concessions and forbearance “during” the COVID period and does not speak of rent concessions or forbearances caused by COVID. The wording only addresses the calendar, not what caused the landlord to forego some of the rent. Thus, there may still be some considerable litigation on this provision. (The authors’ office continues on a daily basis to handle litigation arising out of Covid time period rent concessions)
The Weird Contact Provisions
While we authors are not generally loath to criticize a legislative enactment, even if we were, we would still criticize the 2020 amendment that restricts the hours that a landlord may contact a tenant to normal business hours. Bearing in mind that this is an ordinance dealing entirely with residential tenancies, it only allows a landlord to contact a tenant during those times that the tenant is least likely to be home to receive the contact. While it is true in New York City that not all people have the 9 to 5 job that so many of us do, the time from 9 to 5 captures the hours an overwhelming majority is required to be at work.
The ordinance does not specify what the nature of the contact is. Any contact outside of normal business hours is prohibited. Thus, as a practical matter, the landlord is relegated to speaking only to those who work off hours and those who are unemployed and contacting tenants in writing rather than by phone or door knock.
Under the original 2008 enactment of the ordinance, seeking a judgment in Housing Court that enjoined violations of the Housing Maintenance Code was the only enforcement mechanism. It was not until the 2017 amendment that damages, punitive damages, and attorney fees could be awarded, thus allowing for the possibility of venues in addition to the Housing Court. Yet, the Housing Court has the authority to make those monetary awards as well. Presumably, an award of punitive damages is tied to the level of immorality of the landlord’s conduct.
The definitional section of the anti-harassment ordinance is a wild hodgepodge of prohibited conducts. Some prohibited conducts involve moral turpitude, some of them do not; some of them involve having a direct adverse effect on tenants, some of them do not. However, all of these provisions were enacted over a period of some 15 years. Thus, when deciding whether to bring suit, one’s first level of research should ascertain whether conduct was illegal at the time it was performed.
The second level of research should examine whether damages were authorized at that time. The final level of research should determine whether the conduct is illegal at the time of bringing the suit. The ordinance’s complexity leaves many questions unanswered. Prominent among those questions are those for which a landlord’s conduct is prohibited both in the presence and in the absence of the qualifying condition.
Adam Leitman Bailey is the founding partner and Dov Treiman is the landlord-tenant managing partner of Adam Leitman Bailey, P.C.