NY Courts Should Protect Housing Rights Of All Tenants

By Giannina Crosby, Sateesh Nori and Julia McNally
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Law360 (June 2, 2021, 6:04 PM EDT) --
Giannina Crosby
Sateesh Nori
Julia McNally
In 2019, New York passed the Housing Stability and Tenant Protection Act, with the express purpose of expanding protections for tenants statewide and eliminating prior provisions that had led to extreme landlord abuses.

One element of the law has flown somewhat under the radar: the new provisions against unlawful evictions contained in Real Property Actions and Proceedings Law Sections 711 and 768.

These provisions have the potential to expand protections not only for tenants, but for other types of occupants living in rented housing in New York City; however, courts have split on how to interpret the new provisions. During the pandemic, these provisions have the potential to serve a public health goal of preventing evictions and displacement of a wider category of occupants and tenants.

Tenants' rights and housing regulation have long been an extremely controversial issue for New York City. One serious concern has always been landlord self-help, or when landlords evict tenants without any due process or in contravention of the eviction laws in the city.

For tenants, such illegal practices have enormously detrimental effects. Sudden homelessness usually pushes individuals and families into neighborhoods with fewer resources and often exacerbates racial housing disparities.[1]

Illegal evictions often cost tenants significant amounts in lost belongings and lost security deposit funds. Evictions also increase the risk of job loss and school instability for tenants with children. Finally, eviction generally is associated with increases in stress, depression and physical health risks.[2] During the COVID-19 pandemic, evictions have been shown to increase the risk of transmission of the disease.[3]

The courts should adopt a construction of the HSTPA provisions relating to illegal lockouts that expands the rights of occupants without a traditional landlord-tenant relationship and provides for much-needed protection from landlord abuse.

Not only does this approach promote justice, but it also adheres closest to the law as written. The rights of occupants who are not in a traditional landlord-tenant relationship is especially relevant in New York City housing activism today, as the current housing shortage has left many marginalized renters in situations that don't reflect the traditional idea of a landlord-tenant relationship.

The legal framework governing illegal lockouts in New York City before the HSTPA was based on RPAPL Sections 711 and 713, and New York City's Illegal Eviction Law.

RPAPL Section 711, concerning grounds where a landlord-tenant relationship exists, defines a tenant as "an occupant of one or more rooms in a rooming house ... who has been in possession for thirty consecutive days or longer."[4]

RPAPL Section 713, concerning grounds where no landlord-tenant relationship exists, provides that:

A special proceeding may be maintained [where] ... the person in possession has entered the property or remains in possession by force or unlawful means ... and the petitioner was peaceably in actual possession at the time of the forcible or unlawful entry.[5]

Together, these two provisions form the basis for someone who has been in possession for at least 30 days to be restored to an apartment from which they were illegally evicted. However, in 2018, the New York Appellate Term limited the extent to which nontenant occupants can utilize these provisions to be restored to the housing from which they were illegally evicted.[6]

Despite the expansive definition of "tenant" provided in RPAPL Section 711, the court determined that an occupant must prove actual or constructive possession in order to maintain a summary proceeding under RPAPL Sections 711 and 713.[7]

The court also interpreted the Illegal Eviction Law in New York City to provide only for civil and criminal penalties against landlords engaging in self-help evictions, not to provide an avenue for additional categories of occupants to be restored to their home.

Courts have also refused to restore lawful occupants to possession in cases of illegal lockouts even where they can make a colorable claim to possession if the court feels such restoration would be futile because of the certainty of future eviction.[8] The eviction must be certain, however; a recent court chose not to apply the futility doctrine where the eviction moratoria would prevent the landlord from carrying out the eviction for several months.

In addition, the court noted the policy concerns involved in allowing landlords to disregard the restrictions placed on evictions due to the current health consequences connected to eviction.[9] The state Legislature and Gov. Andrew Cuomo extended New York's eviction moratorium through Aug. 31, meaning restoration to possession for renters remains protected for a significant time.[10]

The 2019 HSTPA was the product of years of work by legislators and activists to correct the imbalance of power between landlords and tenants after decades of policy that favored landlord needs over tenant needs.[11]

The HSTPA made several changes to the RPAPL, and these changes impact illegal evictions in New York City.

First, the HSTPA added a sentence to Section 711 stating that "No tenant or lawful occupant of a dwelling or housing accommodation shall be removed from possession except in a special proceeding."[12]

The HSTPA also added a new provision, Section 768, which provides that:

It shall be unlawful for any person to evict or attempt to evict an occupant of a dwelling unit who has lawfully occupied the dwelling unit for thirty consecutive days or longer or who has entered into a lease with respect to such dwelling except to the extent permitted by law pursuant to a warrant of eviction or other order of a court of competent jurisdiction.[13]

The text of Section 768 mirrors the text of the New York City Illegal Eviction Law almost exactly.[14] The HSTPA made no changes whatsoever to the text of Section 713(10).[15]

The courts so far have split on whether the new provisions of the HSTPA expand the definition of occupant under RPAPL Section 768. In Salazar v. Core Services Group Inc., the Bronx County Civil Court applied the plain reading of the statute to find that the petitioner was an occupant within the definition of Section 711 and therefore entitled to a summary proceeding before eviction.

Moreover, in Watson v. NYCHA-Brevoort Houses,[16] the Kings County Civil Court interpreted Section 768 to find that an occupant who couldn't prove possession nonetheless now had standing to bring an illegal lockout proceeding.

The legislative history suggests that the HSTPA was intended to cover all possible manifestations of occupancy. The sponsor of the bill, Assemblyman Steven Cymbrowitz, states several times in debate that "all tenants deserve protections."[17]

If they rely on legislative history in their decisions interpreting the HSTPA, the courts should recognize that the law is concerned with all those whose housing is at risk due to the market forces and landlord abuses.

Finally, the court in Smith v. Park Central 1 LLC took an alternate approach to interpreting the new provision under Section 768. Although the court noted that there was existing case law restricting an occupant's standing to bring a case under Section 713(10) and that the New York City Illegal Eviction Law has been held not to provide restoration, the court found that Section 768 had codified the prohibition against self-help.[18]

The court found that the petitioner had been a licensee of the deceased former tenant, and had been in physical possession of the apartment prior to his lockout. This interpretation by the court follows a similar approach as Salazar, by focusing on the text of the provision itself and not finding ambiguity that would suggest a need to go beyond the four corners of the text.[19]

Courts should adopt this approach to interpreting the newly added sentence in Section 711 and the new provision in Section 768, as the text itself is not ambiguous nor does it allow for any exception in the case of a lawful occupant without a possessory interest.

 As the pandemic has wrought havoc on landlord-tenant relationships and tenants are facing continuously accumulating rents despite the eviction moratorium, the specter of illegal eviction is only growing.

The legal landscape that has prevented landlords from evicting tenants has shifted over the year and half of the pandemic since March 2020, but the basic restriction on most evictions has remained steady.[20]

Landlords have increasingly turned to self-help and tenants face a rise in harassment and intimidation tactics as landlords attempt to evict tenants illegally who have faced financial difficulties due to COVID-19.

News articles have reported that tenants are experiencing having their utilities shut off, their belongings thrown out on the street, harassing messages and eviction notices posted despite the moratorium.[21]

As the pandemic continues, the likelihood of an eviction crisis only grows — data shows rent owed of over $2 billion and growing in New York,[22] although the most recent eviction moratorium extension also introduced a program to distribute more than $2.4 billion in rental assistance before the end of the summer.[23]

It's critically important at a time when New York City still has very high rates of COVID-19[24] and is planning to open businesses and resume regular life[25] that all types of occupants in the city have access to safe and stable housing.

Closing the loopholes that allow landlords to evict the most marginalized occupants is not only the correct interpretation of the law as passed but is also in the best interests of public health now more so than ever.

The appellate courts should immediately take up these cases to resolve the split among the lower courts and should adopt an interpretation of the law that fits closest to the text actually enacted.

Giannina M. Crosby is a student at NYU Law, and is the Legal Aid Society extern at the law school's Housing Rights Clinic.

Sateesh Nori is an adjunct professor at NYU Law School.

Julia McNally is an adjunct professor at NYU Law School. 

"Perspectives" is a regular feature written by guest authors on access to justice issues. To pitch article ideas, email expertanalysis@law360.com.
The opinions expressed are those of the author(s) and do not necessarily reflect the views of the organization, its clients or Portfolio Media Inc., or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.

[1] Maya Brennan, A Framework for Effective and Strategic Eviction Prevention, 41 Mitchell Hamline L.J. Pub. Pol'y & Prac. 37 (2020).

[2] Id.

[3] Center for Disease Control and Prevention, Dep't of Health and Human Services, Temporary Halt in Residential Evictions to Prevent the Further Spread of COVID-19 (last updated Apr. 13, 2021).

[4] N.Y. Real Prop. Acts. Law § 711 (McKinney 2019).

[5] N.Y. Real Prop. Acts. Law § 713 (McKinney 2010).

[6] Andrews v. Acacia Network, 70 N.Y.S.3d 744, 745 (N.Y. App. Term. 2018).

[7] Chappuis v. CUCS - The Kelly , 110 N.Y.S.3d 193 (N.Y. App. Term. 2018); see also Andrews, 70 N.Y.S.3d at 745.

[8] Soukouna v. 365 Canal Corp. , 853 N.Y.S.2d 39 (2008).

[9] Tangiyev v. Telt , 71 Misc. 3d 1213(A) (N.Y. Civ. Ct. 2021).

[10] Matthew Haag, New York Extends Its Eviction Moratorium Through August,N.Y. Times, (May 4, 2021), https://www.nytimes.com/2021/05/04/nyregion/new-york-city-eviction-moratorium.html.

[11] A-08281, Rules Report No. 275, 71-78.

[12] N.Y. Real Prop. Acts. Law § 711 (McKinney 2019).

[13] N.Y. Real Prop. Acts. Law § 768 (McKinney 2019).

[14] New York City Housing Court, Illegal Eviction Law, (last updated Jan. 22, 2020), https://www.nycourts.gov/COURTS/nyc/housing/unlawfuleviction.shtml.

[15] N.Y. Real Prop. Acts. Law § 713 (McKinney 2010).

[16] Watson v. NYCHA-Brevoort Houses , 138 N.Y.S.3d 830, 832 (N.Y. Civ. Ct. 2020).

[17] A-08281, Rules Report No. 275, 25-28.

[18] Smith v. Park Cent. 1 LLC , 2020 NYLJ LEXIS 1024 at *7 (N.Y. Civ. Ct. 2020).

[19] See id.; see also Salazar, 126 N.Y.S.3d at 613.

[20] See Allison Dikanovic, Peter Senzamici, & Christine Chung, Tapped-Out Tenants Take Charge as Landlords Pursue End Runs Around Eviction Moratorium, The City, (Nov. 12, 2020), https://www.thecity.nyc/housing/2020/11/12/21561805/nyc-tenants-take-charge-eviction-moratorium.

[21] See id.

[22] See id.

[23] See Haag, supra note 20.

[24] See Tracking Coronavirus in New York: Latest Map and Case Count,N.Y. Times, (last visited May 12, 2021), https://www.nytimes.com/interactive/2021/us/new-york-covid-cases.html.

[25] See What You Need to Know, New York State, (updated May 12, 2021),https://coronavirus.health.ny.gov/home.

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