On March 13, 2008, Mayor Michael R. Bloomberg signed Local Law No. 7 of 2008, amending the Administrative Code of the City of New York, expanding the jurisdiction of the Housing Court to include allegation of tenant harassment.
What is “tenant harassment?” Tenant harassment is defined under the law as “any act or omission by or on behalf of an owner that…causes or is intended to cause any person lawfully entitled to occupancy of a dwelling unit to vacate such dwelling unit or to surrender or waive any rights in relation to such occupancy”. Additionally, the activity complained of must include one or more factors delineated in the law:
A. using force against, or making express or implied threats that force will be used against, any person lawfully entitled to occupancy of such dwelling unit;
B. repeated interruptions or discontinuance of essential services, or an interruption or discontinuance of an essential service for an extended duration or of such significance as to substantially impair the habitability of such dwelling unit;
C. failing to comply with the provisions of subdivision c of section 27-2140 of this chapter; (a vacate order issued by the Department of Building)
D. commencing repeated baseless or frivolous court proceedings against any person lawfully entitled to occupancy of such dwelling unit;
E. removing the possessions of any person lawfully entitled to occupancy of such dwelling unit;
F. removing the door at the entrance to an occupied dwelling unit; removing, plugging or otherwise rendering the lock on such entrance door inoperable; or changing the lock on such entrance door without supplying a key to the New lock to the persons lawfully entitled to occupancy of such dwelling unit; or
G. other repeated acts or omissions of such significance as to substantially interfere with or disturb the comfort, repose, peace or quiet of any person lawfully entitled to occupancy of such dwelling unit and that cause or are intended to cause any person lawfully entitled to occupancy of a dwelling unit to vacate such dwelling unit or to surrender or waive any rights in relation to such occupancy.
The legislation allows a tenant to contact the Department of Housing Preservation and Development (HPD), and seek the imposition of a violation for the harassment. If the Department falls to issue the violation within thirty days of the tenant’s request, the tenant may seek redress in the Housing Court. The Housing Court can then issue an order for the Owner and the Department to show cause in the Housing Court. The Court then has the jurisdiction to determine whether the violation exists, and to direct the owner to correct the violation is not corrected; the court can then impose civil penalties.
If the act at issue, which is alleged to constitute harassment, is based upon the physical condition of the dwelling unit, the allegation must be based on at least one violation of record issued by a city agency. For example, tenant may believe the landlord’s failure to repair his stove constitutes harassment, but the court will not issue a harassment violation unless a violation was previously placed by HPD for the faulty stove.
The tenant may also assert a claim for harassment as a counterclaim or defense to an owner-initiated summary proceeding. However, if the allegation is based upon the physical condition of the unit and there is no violation of record, the counterclaim or defense shall be dismissed.
Harassment under Local Law Number 7 is classified as a class “c” immediately hazardous violation. Generally, a class “c” violation is considered a “continuing” violation whereby the penalties accrue daily until the violation is certified to be corrected. However, unlike most class “c” violations, it shall not be deemed a continuing violation beyond the time that the conduct complained of occurred. For example, if a tenant claims the landlord threatened her life on May 3, 2008, the penalty imposed is not a daily penalty, but shall be limited to the date of occurrence. The civil penalty shall be not less than one thousand dollars, and no more than one thousand dollars per dwelling unit alleged to be the subject of a violation.
There is an affirmative defense available to the owner. The owner must show that (a) the condition or service interruption was not intended to cause the lawful occupant to vacate the unit or waive or surrender any occupancy right, and (b) the owner acted in good faith in a reasonable manner to promptly correct the condition. The owner may also seek an order of the court barring the tenant from initiating any further harassment claims without judicial leave, if (a) within a ten year period the tenant imitates two judicial proceedings claiming harassment against such owner and the claims are dismissed on the merits, and (b) the tenant commences a third action and it is determined to be frivolous.
The law empowers the court to award legal fees to the owner if the claim of harassment is found to be frivolous.
HPD is authorized to commence its own suits seeking an injunction for the acts complained of, and an order to correct the violations. Local Law Number 7 further permits a tenant or tenants association to apply for an injunction restraining the owner from engaging in harassment. The tenant-initiated injunction requires that a violation be placed together with the application or a violation already be placed before the injunction will be issued.
Comment: It should be interesting to see how a court, which is already stretched to capacity with regard to, costs and the sheer number of cases, is able to apply the law. The law puts the onus on the owner to prove that acts complained of are not committed with the intent to cause the tenant to vacate or waive his or her rights. The potential for abuse by tenants is great, since the threshold showing is so low, that any failure to repair in a time frame satisfactory to the tenant may result in additional civil penalties for harassment.”
Author Resource:-
Calabro & Associates, P.C. is a small boutique, yet a full service real estate law firm. Although we do transactional real estate, the majority of our practice is dedicated to the landlord-tenant area and real estate litigation.
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