Appellate Division Finds New York State’s Law Prohibiting Housing Discrimination Based on Lawful Source of Income Unconstitutional, to the Extent it Requires Rental of Housing Accommodations to Recipients of Section 8 Housing Vouchers
By Brandon M. Zlotnick
The Appellate Division, Third Department has found that a New York state statute prohibiting housing discrimination on the basis of a would-be tenant’s lawful source of income is unconstitutional to the extent that it requires landlords to accept tenants whose source of income includes Section 8 vouchers. It found as such because both federal statutes and regulations, and the housing assistance payment (“HAP”) contract into which a landlord with a tenant receiving Section 8 benefits is required to enter, require the landlord to make its property and records available for searches without a judicial warrant, violating the Fourth Amendment to the United States Constitution.
As observed by the Third Department in People v. Commons West, LLC, Section 8 housing vouchers, named as such because they are provided pursuant to Section 8 of the United States Housing Act of 1937, represent the largely rental assistance program in the nation. New York’s Executive Law § 296, otherwise known as the New York State Human Rights Law (“NYSHRL”), prohibits discrimination in, among other areas, housing accommodations, based on, among other characteristics, a would-be tenant’s lawful source of income. Based on this prohibition, the New York state attorney general’s office commenced a proceeding in Supreme Court, Tompkins County, against multiple landlords who allegedly had refused to rent to individuals receiving Section 8 vouchers.
Supreme Court, on motion by the landlord respondents, dismissed the petition on the ground that the source-of-income discrimination law was unconstitutional, because it required landlords to take part in the Section 8 program, and landlords participating in that program, in turn, were required to consent to searches of their properties and records without search warrants, thus infringing upon those landlords’ Fourth Amendment rights.
In Commons West, the Third Department affirmed Supreme Court’s order. The Third Department found that under federal statutes and regulations, the local public housing agency (“PHA”) administering the Section 8 program must perform inspections of the apartment rented by the Section 8 recipient, the equipment that services the apartment, and the common areas of the building, without a warrant, and under federal regulation the landlord must permit the PHA to assess whether the rent charged is reasonable by making available to the PHA its records concerning the apartment in question as well as the amounts of rents it charges for other units, both in the relevant building and in other buildings, also without a warrant. Moreover, the landlord must sign a standard housing assistance payment (“HAP”) contract wherein the landlord consents to provide access, without a warrant, to the apartment, the premises, and relevant records and accounts.
The Third Department held that these requirements, that landlords with Section 8 recipients as tenants consent to warrantless searches, violated the Fourth Amendment. Among other arguments raised by the attorney general, the Court rejected contentions that the inspection
scheme provided a constitutionally adequate substitute for a warrant, because the relevant statutes and regulations did not carefully limit the discretion of the inspecting officers in time, place, and scope.
By extension, Commons West also precludes the application of the NYSHRL’s lawful-source-of-income provision to any other federal, state, or local housing voucher program which requires a warrantless search of the property to be rented to a voucher holder and/or of the landlord’s records.