Harassment: Real Incentives, Phony Penalties

by Anne Jaffe

The anti-harassment provisions in the new rent law add very little to tenant-protection laws already on the books and are unlikely to be enforced. In light of the strong incentives to harass tenants that the law’s vacancy increases create, they are a joke.

The new law makes harassing rent-regulated tenants a felony--but only if the landlord causes the tenant (or a third person) physical injury, if it can be proved he injured her to cause her to vacate her home, and if it can be proved he intended to cause, or recklessly caused, the injury. Intentionally or recklessly injuring anyone else is already a misdemeanor. Now, if you can prove a landlord injured a tenant specifically to cause her to move, the landlord can be sentenced to up to four years in prison (or be given probation).

What are the chances that landlords will be prosecuted under this provision? When the idea was floated during negotiations over the new law, the district attorneys of Brooklyn, Manhattan, and the Queens opposed it as unworkable. Even if the cops arrest the landlord and the DA wants to prosecute, how will you prove intent unless the landlord says "I want you out of here" while he punches you? And what about physical injury that isn’t obviously intentional or reckless, like allowing the ceiling to go unrepaired until it falls down on the tenant’s head?

The second new harassment provision increases the amount which the DHCR can fine a landlord it finds guilty of harassment. Both the rent-control and rent-stabilization laws have long provided penalties for harassment after a landlord shows an intent to empty out a building. The tenants can, in theory, get him fined if he fails to keep the building secure, decreases services, or interferes with their peace and comfort. The fines are now $1,000 to $5,000 for each element of harassment.

The problem is that the DHCR prosecutes very few harassment complaints. Its Enforcement Unit immediately rejects most tenants’ complaints. If the complaint is accepted, then a conference is held to try to get the landlord to behave voluntarily. The agency only holds a hearing to decide if the landlord should be fined in a tiny number of cases. Even then, its pro-landlord policy results in few fines.

Suppose your complaint involves so many tenants and such clear-cut harassment that the DHCR fines the landlord. If he is trying to empty the building in order to demolish it, renovate it, or co-op it, and stands to make hundreds of thousands of dollars doing so, it will hardly inhibit harassment because now he can be fined $20,000 instead of $10,000.

Demolition Easier

The law also includes a special gift to developers: It will now be easier for landlords to get the last rent-controlled tenants out of buildings they want to demolish or remodel. The law used to require that the DHCR could not let rent-controlled tenants be evicted for these purposes unless the owner could prove he was going to build 20 percent more housing, and that he could not make a fair rate of return (8.5 percent) on the building (the Sound Housing Law, passed when tenants were on the offensive). Now, these requirements don’t apply if the building has only three or fewer occupied units and these constitute 10 percent or less of the total units in the building, or if it contains 10 or fewer units and only one is occupied. The landlord has to give the tenants the same relocation benefits as stabilized tenants, but he can probably get them out.

Only Michael Finnegan of the Daily News found it scandalous that this little paragraph was put in to allow Harry Macklowe to empty two Midtown buildings at once. Apparently, the landlord in the demolition case in which I have represented the tenants for 16 years didn’t pay the Republican legislators enough to make the numbers a little more favorable--my clients are safe for a while, until a few more die.

There is no way to know how many other tenants may be affected by this change, but now more than ever, tenants in this situation have to stick together to the end. Anyone wishing to hold out against eviction may be there when there are too few tenants left to be protected by the law.

Anne Jaffe is a tenant attorney in private practice with Lisa S. Ottley, a law graduate.