By Allison Curreri, Megan Turek, and Samantha Wright
Introduction: 2710 Bainbridge Avenue, Bronx, NY
For years, the tenants at 2710 Bainbridge Avenue lived in a building without a locked front door or heat for most of the wintertime. The fire escape window to one apartment was broken and never fixed, leaving a jagged hole that exposed the tenants to the elements and intruders. In the 56 apartment units, the mold grew on the walls, water leaked through the ceilings, and rats entered through gaping holes in the floor.
Tenants tried to complain to the City by calling 311 but were often unable to register complaints because they did not know the landlord.[i] Enriquetta Garcon, a tenant for seven years, said that the building was always changing hands and that she never knew who to ask for repairs.[ii] There was a phone number to call, but the line was often disconnected.[iii] Despite the difficulty registering complaints, 2710 Bainbridge Avenue racked up almost 1,000 violations of the Housing Maintenance Code (“Code”) by spring 2010.[iv]
The building came to the attention of the Northwest Bronx Community and Clergy Coalition, which enlisted the help of the attorneys at the Urban Justice Center to begin a “Section 7A” action in Housing Court.[v] Twenty-nine tenants asked the judge to require the city to invest money for repairs and appoint an administrator (instead of the landlord) to collect rent and manage the building until it was brought to a livable condition.[vi] The 7A petition estimated that required repairs would cost more than $800,000.[vii]
In addition to the 7A system, the building is also enrolled in the Alternative Enforcement Program (AEP), an aggressive program designed to rehabilitate the City’s most dilapidated buildings. In 2008 the City identified the building as “severely distressed” and placed it in AEP. However, almost two years later, tenants reported that they had not seen any repairs made.[viii] Although the tenants had not noticed repairs, the City said it spent $160,000 on the building in emergency repairs but the landlord blocked access for more extensive capital repairs.[ix] According to the Village Voice, the landlord, Shawn Curry “freely admitted to not letting the city in”, and said, “I put in a new roof that costs around $60,000. HPD’s price for the exact same job was $225,000. Why should I pay HPD $225,000 when I could hire a contractor and pay him $60,000 to do the same job?”[x] In April 2010, the City estimated the building still needed more than $500,000 in repairs.[xi]
Seven months after the 7A action began, it appears that Curry is making great strides towards bringing the building back to code. An October 2010 inspection reported 198 violations, down from almost 1,000 violations in April 2010.[xii] Tenants also report that conditions in 2710 Bainbridge are improving. “It seems that we are finally being heard, but we needed a courtroom and the help of the media to achieve that,” said Trina Guzman, a second-floor resident.[xiii] A new, locked door was installed almost immediately,[xiv] and the tenants’ lawyers negotiated a stipulation setting a timeline for the repair of all other violations.[xv] The 7A proceeding is still pending before Housing Court, so it remains to be seen whether control of the building will be transferred from Curry to an administrator.
2710 Bainbridge Avenue is an extreme example of a building with substandard living conditions. Most buildings in New York City have Housing Code violations, but few contain so many serious infractions. However, 2710 Bainbridge is illustrative of the type of building that is targeted by the New York City Code enforcement effort. Each year the City puts a large percent of its enforcement budget towards rehabilitating and litigating the buildings with the most Code violations, instead of more broadly enforcing all violations. For example, since 2007 the City has spent more than $23 million on the AEP, which targets less than a half a percent of all rental units in the City.[xvi] Using 2710 Bainbridge Avenue as an illustration, this paper studies the implications and effectiveness of this approach. Part I provides a background on Code enforcement; Part II considers the current challenges to effective and efficient enforcement of the Code; Part III assesses the role of the New York City Housing Court in enforcement; and Part IV sets forth proposals for reform.
The New York City Housing Maintenance Code
The Code is intended to establish minimum standards of health and safety. HPD is the City agency responsible for Code enforcement. Enforcement is increasingly important and burdensome in New York City because of the City’s characteristically high proportion of aging, rental properties. According to data from the 2008 Housing Vacancy Survey, 44.4% of the housing stock in New York City was built before 1930. On the whole, New York City’s housing stock is said to be the oldest in the nation.[xvii] As housing ages, increased attention is demanded to maintain it, making compliance with the Code more onerous and costly. However, diligent enforcement is extremely important, as it ensures preservation of the housing stock. In addition, New York City has a high ratio of renters to owners, with 66.2% of the population renting, placing the majority of the 3.3 million housing units under the Code.[xviii] This increases the importance of Code enforcement, considering the number of renters dependent on landlords for the quality of their living conditions.
The City’s enforcement system is based on tenant complaints received by HPD through the 311 system. After a complaint is made, an HPD inspector evaluates the building and issues a Notice of Violation (“NOV”) if Code violations are found. The NOV informs the owner of the violation and requires a repair within a certain timeframe. However, the NOV is not an enforceable judgment, and no fine is attached. The owner must return a form to certify that the repair has been made. There are penalties for noncompliance, but they are not automatically assessed. Instead, HPD must initiate litigation in Housing Court to collect them.
There is a great difficulty in evaluating Code enforcement due to a lack of accurate data. HPD stated that in 2010, 616,408 Code complaints were made.[xix] However, these figures may include multiple complaints regarding a single housing unit. Furthermore, it is difficult to measure Code enforcement “success.” Indicators such as the number of reported complaints and issued violations are not entirely reflective of housing quality.[xx]
Theoretical perspectives and priorities of Code enforcement
In order to evaluate the effectiveness of New York City Code enforcement, there must be an understanding of what goals the enforcement effort is meant to achieve. In thinking about the priorities of a housing Code enforcement system, questions abound. Should the program aim to correct substandard conditions in only the worst buildings? Should enforcement prioritize correcting emergency violations over everything else? Should the City try to achieve a minimum level of housing quality in the majority of buildings? Should the City target specific problems, such as lead paint or illegal occupancy?
Academics in the 1960s and 1970s highlighted the need to balance vigorous Code enforcement with ensuring adequate housing supply.[xxi] There was a fear that if compliance were too costly, landlords would either abandon or “milk” the property and allow it to deteriorate. There was also a fear that vigorous enforcement would increase rents, thereby reducing the affordable housing supply. These debates currently continue. However, there is a lack of conclusive studies analyzing these concerns.[xxii] Furthermore, one could argue that the reverse is true: perhaps rigorous Code enforcement increases the supply of safe and decent housing.[xxiii]
Initially, the New York City Code enforcement system was designed to flexibly accommodate all of the above priorities. The Code was to be broadly enforced by HPD inspections and narrowly enforced by the Neighborhood Preservation Program, a community-based program designed proactively address problems and avoid litigation in Housing Court by helping owners obtain social services or loans for repairs. Furthermore, the City reserved the latitude to come up with creative solutions to particular problems, such as the AEP, created in 2007 as a way to rehabilitate extremely distressed properties. However flexible the system was intended to be, the City’s Code enforcement efforts have come up short. The following section evaluates the functionality of the current system.
II. EVALUATION OF THE CURRENT SYSTEM
The Code is intended to “enforce minimum standards of health and safety, fire protection, light and ventilation, cleanliness, repair and maintenance, and occupancy in dwellings… to protect the people of the city against the consequences of urban blight.”[xxiv] Therefore, it is crucial to identify the biggest problems with residential housing quality that threaten residents’ health and safety. Problems that pose high risk to health and/or safety, particularly ones that impact a large number of residents, should be of greatest concern to HPD in enforcing the Code, and HPD should devote a large portion of the enforcement system’s resources to these problems. High-risk housing quality problems that endanger few and lower-risk problems that endanger many should also be allotted substantial, if fewer, resources. Of course, whatever resources are expended should effectively and efficiently promote residential housing quality.
Examining the Code helps to reveal the housing quality level that the City and State legislative bodies deem to be “minimum housing standards.”[xxv] Experts question whether compliance with the Code is a good measure of building quality. One argues that it is not, citing the high quality of the current New York City housing stock as reflected by the Housing Vacancy Survey.[xxvi] Another feels that the Code is antiquated, having been written for “a different time,” indicating that it some of its requirements may no longer be necessary to insure minimum housing standards.[xxvii] It is clear, as discussed below, that the City does not actively enforce certain provisions of the Code, which may reflect an implicit decision that such provisions need not be met to ensure minimum housing standards. It also may reflect the necessity of prioritizing enforcement given limited resources.
Indicators of the Code’s Effectiveness and Efficiency
HPD’s main goal in enforcing the Code effectively should be to ensure that violations are remedied expediently. In its 1995 audit of HPD’s Code enforcement, the City Comptroller found that HPD did not know whether it was effectively enforcing the Code, because it did not have a formal process to determine whether violations had been corrected.[xxviii] The problem arose from the fact that, in a given year, HPD removes as many or more violations from its database as it issues, but many violations removed were issued years in the past. Less than 25% of the violations issued in that fiscal year were removed by the end of the fiscal year, leaving over 75% still outstanding.[xxix] The percentage of violations issued and removed in the same fiscal year has increased to 33% or above in the past five years; the figure was 38% in fiscal year 2010.[xxx] This reflects improvement since the audit. However, such a figure includes violations issued across a full year; some violations may have taken the full year to correct while others may have been addressed very rapidly.
A more useful indicator is the average time to close complaints. For emergency complaints, HPD reports an average time to close of 12.0 days for fiscal year 2010.[xxxi] This has deceased from an average of 16.4 days in fiscal year 2008.[xxxii] For nonemergency complaints, the average time to close has decreased markedly, from 39.9 days in fiscal year 2008 to 19.1 days in fiscal year 2010.[xxxiii] In evaluating these average times, it is useful to compare them against the requirements for correction time in the Code: 24 hours from the service of a notice for a C violation, 30 days from the date of mailing of a notice for a B violation, and 90 days from the date of mailing of an A violation.[xxxiv] Average time to close a nonemergency complaint is well under the target correction time period for A and B violations in the statute. However, if a large number of such complaints do not result in violations issued, the average time to close a complaint that does result in a violation would be longer. Conversely, it is clear that a large number of emergency complaints result in the issuance of nonemergency violations, as the number of nonemergency violations issued almost doubles the number of nonemergency complaints. Thus, the average time to close emergency complaints that actually result in emergency violations may be shorter than 12 days.
III. THE HOUSING COURT
The New York City Housing Court (“Housing Court”) is the last-stop in Code enforcement. HPD and City tenants may bring “HP cases” to Housing Court and ask the judge to order the landlord to make repairs or pay fines. Although close to 500,000 Code violations are issued each year,[xxxv] little more than 13,500 HP cases are brought in Housing Court to specifically enforce the Code.[xxxvi]
In 1972, the New York State Legislature amended the Civil Courts Act to create a court dedicated to the effective enforcement of the Code.[xxxvii] Before the creation of this “Housing Court” (formally called the Housing Part), the City enforced the Code through criminal prosecution. The legislature found this method of enforcement deficient in several ways but most importantly it found that the criminal sanctions, which usually amounted to minimal fines, were not high enough to compel building owners to repair property or provide incentives for maintenance.[xxxviii] Advocates called for a new system that consolidated judicial enforcement in one court and focused on the conditions of the buildings, rather than the behavior of their owners.[xxxix] From these critiques, a new civil court and system of per diem civil sanctions was formed.
It is widely recognized that Code enforcement was the original purpose of the Housing Court.[xl] The objectives of Housing Court were twofold: to create a “unified, comprehensive forum for the adjudication of all actions and proceedings relating to housing standards and maintenance,” and to “formulate a new remedy compelling the removal of code-violative conditions and preventing the occurrence of new ones.”[xli] The founders believed that the system would provide the universal and deterrent elements that the old system lacked.[xlii]
However, the Housing Court never achieved those objectives. From the beginning, judges were reluctant to impose such harsh penalties on landlords.[xliii] Because the fines were significant, many judges afforded more process to litigants in HP cases, often necessitating a trial and more evidence.[xliv] The trials created delay, and HPD litigators quickly realized that litigating every Code violation would be impossible. At the same time, nonpayment and holdover proceedings were added to the Housing Court’s jurisdiction in an effort to “recognize the mutuality of obligations in landlord-tenant relationships, to promote a unified resolution of landlord-tenant disputes, and to adjudicate cases involving possession over residential premises in New York City.”[xlv] The focus of the court quickly shifted to the overwhelming number of nonpayment proceedings filed by landlords. In theory the Housing Court would promote more stringent and universal enforcement, but in practice, the new system was just as weak as its predecessor in enforcing housing standards.
Housing Court today
With more than 300,000 residential and commercial claims filed and 125,000 actions calendared each year, the 50 New York City Housing Court judges are among the busiest in the City.[xlvi] On a normal day in the Bronx Housing Court,[xlvii] it is not unusual for a judge to have 40 to 50 cases on his docket. Hundreds of tenants, landlords, government workers, and attorneys line the hallways. Parties wait leaning against the walls or sitting on benches for hours before their cases are called. Attorneys race up and down the stairs, searching for opposing counsel or pro se, or unrepresented, litigants to negotiate deals and fill out handwritten “stips” (formally called stipulation settlements) that reflect settlements to be submitted to the judge. Both sides rush to settle cases before the one o’clock lunch break, but some unlucky parties miss the cut and have to wait until late afternoon to resolve a case. Unluckier are those who have their cases adjourned and calendared for a later date. Many conflicts are adjourned repeatedly, delaying resolution of the problem. Delays result in longer periods of un-repaired living conditions for tenants and unpaid rent for landlords. Delays also require tenants to take additional days from work to return to court and landlords to pay more money in attorneys’ fees.
The saying that “Housing Court happens in the hallways” accurately reflects how the Housing Court operates.[xlviii] A pro se litigant spends only minutes in front of a judge and is often told to speak with the opposing party’s attorney in the hallway to get an explanation of what is happening.[xlix] Nine times out of ten, the pro se litigant is a tenant, and more often than not, that tenant risks eviction in the proceeding.[l]
At the same time, Housing Court is not an easy place for a landlord, either. Because so many tenants lack legal representation, judges often need to take time to explain the procedure to tenants.[li] Because of this, the Housing Court has a reputation among landlords for favoring tenants. Roberta Bernstein, the president of a small property owners advocacy group, argues that many judges are outwardly biased towards tenants.[lii] She maintains that many judges “flagrantly give advice to tenants and refuse to hear arguments from the owner.”[liii] Landlords are also burdened by attorneys’ fees and court costs.[liv] Small owners who cannot afford counsel often have difficulty filling out the paperwork.
Pro se litigants
A perennial problem in Housing Court is the overwhelming number of pro se litigants, or people who lack legal representation. “It is common knowledge that the vast majority of tenants who appear in Housing Court cannot afford lawyers. Tenants who are fortunate enough to be represented by lawyers are typically more successful in the burdened Housing Court than pro se tenants.”[lv] While most tenants cannot afford counsel, landlords almost always have representation.[lvi] By the numbers, roughly nine out of ten landlords obtain counsel whereas only one in ten tenants have representation.[lvii]
Pro se litigants are at a disadvantage because they may not understand the Housing Court’s complicated adversarial system. Indeed, the New York State Court of Appeals has described the housing laws as “an impenetrable thicket confusing not only to laymen but to lawyers.”[lviii] Most often, the pro se litigant faces heavy pressure from opposing counsel and even the judge to sign a settlement agreement written by opposing counsel.[lix] Cases are settled quickly, often in the hallway and without adequate judicial supervision.[lx] “[T]he tenants, unsure of their rights, terrified of being in court, and relieved by the prospect of avoiding eviction, will sign one-sided stipulations in order to bring about what they believe to be a speedy resolution of their case, not knowing that they may have signed away considerable rights, or untimely set in motion a series of events that may lead to their eviction.”[lxi] These rights include claims based on warranty of habitability and Code violations.
The issues surrounding pro se litigants matter a great deal to Code enforcement. If the main purpose of the Housing Court is to enforce the Code, then enforcement becomes inefficient when the majority of litigants in the Court are unrepresented. If the litigants do not understand the process, they may appear in court unprepared, requiring the judge to adjourn the case and calendar it for another date. Adjournments cause delay, creating inefficiencies and impeding prompt resolution.
IV. CONCLUSIONS AND PROPOSALS
Currently, the regulatory incentives for landlords to maintain a building are weak. HPD or a tenant needs to commence an action in Housing Court to collect fines or have repairs ordered. Relatively few actions are brought in comparison with the large number of violations on record. Per diem fines are rarely levied and collected; more often the City will settle for repairs in place of penalties.[lxii] Under this system, a landlord may make a calculated decision to “milk” the property or refuse repairs because the consequences of Code violation would be cheaper than maintaining the building to code.
At the same time, the New York City Housing Vacancy Survey shows that the New York City housing stock is in better condition than ever.[lxiii] Although regulatory incentives are lacking, owners have market incentives to maintain their property. Some argue that profit often correlates with building maintenance: better maintenance may be associated with higher rents.[lxiv] However, others counter that there are tensions between the various regulatory and market incentives, and inadequate information exists to evaluate whether either set of incentives actually work to encourage building maintenance. Rent stabilization, rent control, and other affordable housing regulations interfere with market incentives.[lxv]
The City must affirmatively state its Code enforcement goals, and it must better monitor and assess the success of its Code enforcement efforts. Only after the City has information and an agenda can it design new regulatory incentives to achieve those stated priorities. This section evaluates the potential of several reforms aimed to improve New York City Code enforcement.
System-wide reform: The Creation of a Housing Maintenance Board
One of the major problems of the current Code enforcement system is that the enforcement mechanisms have little or no bite. Fines are low and rarely collected, providing weak incentive to landlords to maintain their properties. If the goal of the City’s Code enforcement system is to attain a minimum level of housing quality, fine collection should be more predictable to increase incentives to landlords for building maintenance.
The City could create an administrative body to assess and collect fines for Code violations. The Association for Neighborhood and Housing Development first proposed the creation of a singular board to perform this function.[lxvi] This proposal has been on the table for nearly five years and needs to be revisited. The proposal includes the creation of an administrative tribunal and a “Repair Enforcement Board” to increase hearing efficiency and ensure the physical correction of violation.[lxvii] Fines would be attached to the initial violation and would vary depending on severity.[lxviii] The landlord would be required to appear before the Board to pay the fine, but the tribunal may waive the fine if the violation is corrected before the initial hearing.[lxix]
Other cities, such as D.C., Chicago, Dallas, and Boston, have adopted similar systems. In 1996 Chicago established the Department of Administrative Hearings to address “quality of life” offenses such as abandoned buildings, poorly maintained properties, and other public disorders.[lxx] The City refers violations of the Municipal Code to either the Circuit Court or the Department of Administrative Hearings.[lxxi] This system has reportedly doubled Chicago’s compliance and fine collection rates.[lxxii] However, there is the perception that the focus of the Department of Administrative Hearings is more on the collection of fines than the actual remedying of violations.[lxxiii]
Some concerns over the tribunal system have been raised. Some argue that the tenant’s role in Code enforcement would be diminished with this system, and that the tenant should retain the ability to take action on violations.[lxxiv] However, the creation of an administrative tribunal would not eradicate Housing Court, so a tenant could always pursue a HP case. Others maintain that this system is a simplistic solution to a complex problem, arguing that the current system is effective at targeting worst offenders, and that an administrative tribunal that addressed violations more broadly would be excessively punitive to the vast majority of landowners who are conscientious.[lxxv] The may be true that the proposed system could be overly punitive if violations do not actually reflect housing quality. However, this concern should be addressed by revisiting the Code itself and omitting violations with a weak relationship to housing quality.
Reforms to the Housing Court
However much the Housing Court has improved, the major criticisms about overloaded dockets, high numbers of pro se litigants, and low emphasis on housing maintenance remain. Although advocates have called for reform for decades, little progress has been made in solving these fundamental problems. The following reforms would greatly improve the effectiveness and efficiency of Code enforcement in the Housing Court.
Right to counsel: the “civil Gideon”[lxxvi]
At the very least, there is a general consensus that the single most important reform that could be made to the Court would be to increase the free legal representation available to pro se litigants. Judge Madhaven, a Bronx Housing Court judge said, “[I]n my view, nowhere has the dearth of legal services been felt for as hard or as long as the New York State Housing Court.”[lxxvii] Increased representation would facilitate better Code enforcement. A randomized study of Housing Court cases conducted by the Legal Aid Society shows that tenants with attorneys are more than twice as likely to enter into a stipulation agreement requiring repairs. [lxxviii] Tenants without attorneys are 4.5 times more likely to have a default judgment entered against them, nearly 2.5 times more likely to have a judgment entered against them, and 4 times more likely to have a warrant of eviction issued against them.[lxxix]
Providing counsel could alleviate many problems with the Housing Court. It would first correct the power imbalance between landlords and tenants. Instead of navigating an unfamiliar system alone, the tenant would have a guide who could explain the litigant’s rights, advocate for repairs, and ultimately achieve the fairest outcome. Judge Madhaven said, “The system works best when both sides are represented. We know that. And the goal is to get to that point.”[lxxx] Providing counsel might also neutralize the role of the judge. Judge Gonzalez said, “the proper funding would tend to minimize if not eliminate this danger that the judiciary finds itself in when it’s faced with being an advocate.”[lxxxi] If lawyers represented both sides, the lawyers could resolve the litigant’s crises, and the judge could focus on the narrow legal issue.[lxxxii]
A more active judiciary
In the absence of a civil Gideon, judges should be encouraged to take a more active role in cases involving pro se litigants.[lxxxiii] Although many judges already require repairs to be addressed (although not necessarily corrected) as part of settlement stipulations in their courtrooms’ rules,[lxxxiv] such a requirement could become mandatory for all judges. The New York County Lawyers’ Association recommends, “In all cases, prior to ‘so ordering’ a stipulation, the Judge should determine whether a hazardous violation exists at the premises; if such violation exists, the Housing Court should require that the stipulation provide for correction of the violation and for an enforcement remedy in the event of non-compliance.”[lxxxv] Because some judges already require this step, achieving universal implementation is a real possibility and most likely would not increase Housing Court costs or delay. The requirement would not only aid judges in enforcing the Code, but it may also serve as an incentive to landlords to maintain their properties because the landlord would know that the judge would inquire about repairs in every non-payment case.[lxxxvi]
Improvements to the resources available to tenants, landlords and HPD
Many of the problems associated with Code enforcement trace back to issues with information and financial resources. Tenants are often unaware of their rights and how to solve problems with their living conditions. Landlords mostly comply with the Code, but at times may have trouble finding the resources to take care of a building. Lastly, HPD’s information systems documenting violations are overwhelmed by the sheer volume of violations on record, which makes enforcement difficult. Reform of all of these resources is sorely needed and would promote more efficient and effective enforcement.
Provision of Information
Tenants should be encouraged to address violations with their landlord before filing a complaint with the City. Some argue that the vast majority of maintenance issues could be handled effectively on the free market: landlords know that they can demand higher rent for better-maintained apartments, so many are willing and able to address maintenance issues when brought to their attention.[lxxxvii] Furthermore, owners are willing to make repairs because “most owners accept that repairs make happy tenants, and happy tenants (unless financially destitute) pay rent.”[lxxxviii]
HPD receives many nonemergency complaints from tenants who have not reached out to their landlord first, straining the agency’s resources.[lxxxix] To alleviate this problem, the City could require every rental building to post a sign in a common area with the name and contact information for the building’s landlord. For building owners who are likely to make repairs if tenants bring maintenance problems to their attention, this would greatly facilitate the process. In the case of building owners who deliberately conceal their identities, who are more likely to own buildings in very poor condition, this may not lead to quick repairs without involving HPD, but could help to provide information to the public in making housing market decisions, as well as contributing to shaming mechanisms recently undertaken by the Public Advocate.[xc]
The Public Advocate recently released a database of landlords whose buildings have the most violations in the city, including the buildings’ addresses and the number of violations that each building has outstanding.[xci] The site allows tenants to nominate their own landlords and report additional violations, and will update regularly based on these reports as well as information from HPD and the media.[xcii] A local newspaper identified substantial problems with the list; many “landlords” listed were actually the building’s property manager or another lower-level employee.[xciii] The provision of this information clearly needs improvement to increase its usefulness, particularly for incentivizing landlords through the social pressure of public embarrassment. Still, the identification of particular buildings with large numbers of violations, through the Public Advocate list as well as HPD’s Building, Registration, and Violation Database can help housing market participants make housing decisions.
A Tenants’ Bill of Rights
Tenants frequently lack the information necessary to navigate the process of identifying, reporting, or litigating a Code violation. Information is available throughout HPD’s and the Housing Court’s websites, but the information can be difficult to locate. More often than not, a tenant would not even know what to search for on the website. To remedy this problem, a standard tenants’ bill of rights should be attached to every rental agreement in New York City.[xciv] The document would highlight the principal rights of tenants and basic processes for identifying, reporting, and litigating a violation. It would provide tenants with City agency contact information, in addition to details on the available avenues for obtaining relief.
Connecting documentation of violations to enforcement efforts
With approximately 3 million outstanding Code violations, of which 500,000 are immediately hazardous, there is a significant disconnect between the issuance and documentation of violations and enforcement efforts.[xcv] The City cannot expect to create an effective enforcement strategy without more information about the violations on record. While many of these outstanding violations are likely to have accrued over time, the fact that they remain on the record indicates how little authority HPD has in its enforcement efforts. Furthermore, many of the violations have been corrected but never removed from the system, and landowners find it difficult to remove corrected violations.[xcvi] A more accurate and well-maintained database should be created to document current violations. This database should better reflect current housing conditions and allow landlords to more easily remove violations that have been corrected.
Ultimately, although determining whether the current system works effectively is complicated, a few lessons are clear. First, system performance cannot be measured against the goals articulated by the Code drafters in the 1960s and 1970s. Enforcement efforts never matched what the City first envisioned, and therefore, new goals need to be set to measure accomplishment. Second, enforcement needs to become less burdensome and more user-friendly. The system relies in large part on the private contributions of landlords and tenants, but both sides struggle to understand and work within the program. Ultimately, many of the problems facing Code enforcement are reflective of larger social issues that are beyond the scope of any Code enforcement effort. Many problems associated with building maintenance and Housing Court arise out of social and economic reasons that increased enforcement cannot address, such as the inability to afford repairs or counsel. The proposals outlined in this paper are aimed to improve both the efficiency and accessibility of New York City Code enforcement. Code enforcement alone, however, does not have the capacity to address the systematic inequalities of New York City’s housing stock.
Allison Curreri is a J.D. candidate at NYU Law. She holds a bachelor of arts in economics and geography from Dartmouth College. Allison is pursuing a career in real estate and land use law.
Megan Turek is a third-year student at NYU Law. She holds a bachelor of arts from the University of North Carolina at Chapel Hill. Following graduation, Megan will be an attorney at the New York City Housing Authority.
Samantha Wright is an MPA candidate at NYU Wagner. Samantha is pursuing a career in policy research, seeking policy solutions for affordable housing and community revitalization.
[i] Elizabeth Dwoskin, “Who’s My Landlord?” Village Voice, November 3, 2010, accessed November 25, 2010, http://www.villagevoice.com/2010-11-03/news/let-s-play-who-s-my-landlord/2/.
[iv] Garrett Wright, (Staff Attorney, Urban Justice Center), e-mail message to Megan Turek, November 19, 2010.
[v] Petition for Appointment of Administrator Pursuant to Article 7A of the RPAPL, Amechaud v. Semper Fi Mgmt. Corp., April 1, 2010 (on file with authors) (“7A Petition”).
[vii] 7A Petition, Schedule C (total cost estimate $812,000).
[viii] Vivian Lee, “Tenants In The Bronx Announce Lawsuit Against Landlord, “ New York 1, April 1, 2010, accessed November 25, 2010, http://bronx.ny1.com/content/top_stories/116209/tenants-in-the-bronx-announce-lawsuit-against-landlord.
[x] Dwoskin, “Who’s My Landlord?”
[xi] Dep’t of Hous., Pres., and Dev., Alternative Enforcement Program Referral to 7A, 2710 Bainbridge Avenue, April 9, 2010 (stating cost estimate as $543,236) (on file with authors).
[xii] Wright, e-mail, November 19, 2010.
[xiii] Yasmina Guerda, “New Landlord for Troubled Building but Tenants Are Skeptical,” Bronx Ink, April 7, 2010, accessed March 3, 2011, http://bronxink.org/2010/04/07/6677-new-landlord-at-2710-bainbridge-avenue-but-tenants-remain-skeptical/.
[xv] Wright, e-mail, November 19, 2010.
[xvi] New York City Independent Budget Office, Alternative Enforcement: Program to Push Landlords to Make Repairs Has Mixed Results (December 2010), accessed March 3, 2011, http://www.ibo.nyc.ny.us/iboreports/aepdec2010.pdf.
[xvii] Furman Center for Real Estate and Urban Policy, “Chapter 8 Housing Quality,” State of New York City’s Housing and Neighborhoods (2004), 227.
[xviii] Furman Center for Real Estate and Urban Policy, “New York City,” State of New York City’s Housing and Neighborhoods (2009), 56.
[xix] City of New York, Preliminary Fiscal 2011 Mayor’s Management Report, (February 2011), 80, accessed March 3, 2011, http://www.nyc.gov/html/ops/downloads/pdf/2011_mmr/0211_mmr.pdf.
[xx] Mitch Posilkin, (General Counsel, Rent Stabilization Association), telephone interview with author, October 16, 2010.
[xxi] See, e.g., Bruce Ackerman, “Regulating Slum Housing Markets on Behalf of the Poor: Of Housing Codes, Housing Subsidies and Income Redistribution Policy,” Yale Law Journal 80 (1971): 1093; Neil K. Komesar, “Return to Slumville: A Critique of the Ackerman Analysis of Housing Code Enforcement and the Poor,” Yale Law Journal 82 (1973): 1175; Bruce Ackerman, “More on Slum Housing and Redistribution Policy: A Reply to Professor Komesar,” Yale Law Journal 82 (1973): 1194.
[xxii] Paula Galowitz, (Professor, N.Y.U. Law and Co-Chair, Task Force on Housing Court of the New York County Lawyers’ Association), e-mail message to Megan Turek, November 17, 2010.
[xxiv] NYC Administrative Code, § 27-2002 (2010).
[xxvi] Posilkin, interview.
[xxvii] Harold Shultz, (Senior Fellow, Citizens Housing and Planning Council), interview with author at Offices of Citizens Housing and Planning Council, November 16, 2010.
[xxviii] Audit Report of the New York City Department of Housing Preservation and Development’s Enforcement of the Housing Maintenance Code. NYC Office of the Comptroller, MJ95-098A, June 30, 1995, http://www.tenant.net/Oversight/Codeenf/codetitl.html.
[xxx] City of New York, Fiscal 2010 Mayor’s Management Report, (September 2010), 82-83.
[xxxiv]NYC Administrative Code, § 27-2115(c)(1) (2010).
[xxxv] City of New York, Preliminary Fiscal 2011 Mayor’s Management Report, 80.
[xxxvi] Civil Court of the City of New York, Statistical Report of the L&T Clerk’s Office, (March 9, 2010), accessed March 3, 2011, http://www.cwtfhc.org/images/stories/pdf/casefilings2009citywide.pdf.
[xxxvii] NY CLS NYC Civil Ct Act, § 110 (2011) (“The Housing Part”).
[xxxviii] Shultz, interview. Albert Walsh, “Housing Code Enforcement in New York City – Another Look at an Administrative Tribunal,” Urban Law Annual 17 (1979): 51-52.
[xxxix] Judah Gribetz and Frank P. Grad, “Housing Code Enforcement: Sanctions and Remedies,” Columbia Law Review 66 (1966): 1254, 1281.
[xl] Schanzer v. Vendome, No. 6065/2005, 2005 WL1035584 (Hous. Part Civ. Ct. N.Y. County, Aug. 27, 2005), at *2 (explaining HP’s importance in housing-code enforcement and summarizing history of HP proceedings). Louise Seeley, (Executive Director, City-wide Task Force on Housing Court), interview with author, October 6, 2010.
[xli] Mark C. Rutzick and Richard L. Huffman, “The New York City Housing Court: Trial and Error in Housing Code Enforcement,” New York University Law Review 50 (1975): 749-50.
[xlii] Shultz, interview.
[xlv] Schnazer v. Vendome.
[xlvi] Civil Court of the City of New York, Statistical Report of the L&T Clerk’s Office.
[xlvii] Matthew Tropp, (Staff Attorney, Legal Aid Society), interview with author at Bronx Housing Court, October 14, 2010.
[xlviii] Murir Pujara, (Staff Attorney, Part of the Solution), interview with author, October 12, 2010.
[xlix] Paula Galowitz, “The Housing Court’s Role in Maintaining Affordable Housing,” in Housing and Community Development in New York City, ed. Michael Schill (Albany: State University of New York Press, 1999), 177.
[li] Task Force to Expand Access to Civil Legal Services in New York: The Chief Judge’s 2010 Hearings on Civil Legal Services, First Dep’t., App. Div., 143, Sept. 28, 2010, accessed November 25, 2010, http://www.courts.state.ny.us/ip/access-civil-legal-services/public-hearings.shtml (statement of Judge Rubin Martino, Presiding Justice of Harlem Community Justice Center and former Housing Court judge; “I think we’ve bent over backwards tremendously to try to compensate for [the imbalance in representation.]”) (“Civil Legal Services Hearing”).
[lii] Roberta Bernstein, (President, Small Property Owners of New York), e-mail message to Megan Turek, November 15, 2010.
[liv] Posilkin, interview.
[lv] Harvey Gee, “From Hallway Corridor to Homelessness: Tenants Lack Right to Counsel in New York Housing Court,” Georgetown Journal on Poverty Law and Policy 17 (2010): 87.
[lvii] Raymond Brescia, “Sheltering Counsel: Towards a Right to a Lawyer in Eviction Proceedings,” Touro Law Review 25 (2009): 203.
[lviii] 89 Christopher Inc. v. Joy, 360 N.Y.S.2d 612, 618 (1974).
[lix] Galowitz, “The Housing Court’s Role,” 182.
[lxi] Brescia, “Sheltering Counsel,” 204.
[lxii] Shultz, interview.
[lxiii] “Housing and Vacancy Survey,” New York City Department of Housing, Preservation, and Development, accessed February 25, 2011, http://www.nyc.gov/html/hpd/html/pr/vacancy.shtml.
[lxiv] Posilkin, interview.
[lxv] Garrett Wright, (Staff Attorney, Urban Justice Center), e-mail message to Megan Turek, February 25, 2011.
[lxvi]Association for Neighborhood and Housing Development, Inequitable Enforcement: The Crisis of Housing Code Enforcement in New York City 24, accessed February 26, 2011, http://www.anhd.org/resources/Inequitable%20Enforcement.pdf.
[lxvii] Association for Neighborhood and Housing Development, The New York City Repair Enforcement Board: A Better Model of Code Enforcement to Hold Negligent Landlords Accountable, accessed February 26, 2011, http://www.housinghereandnow.org/downloads/Repair_Enforcement_Board_Fact_Sheet.pdf.
[lxviii] David Hanzel, (Executive Director, Association for Neighborhood and Housing Development), e-mail message to Samantha Wright, October 8, 2010.
[lxx]“Our Structure,” City of Chicago Department of Administrative Hearings, accessed March 3, 2011, http://www.cityofchicago.org/city/en/depts/ah/auto_generated/ah_our_structure.html.
[lxxi] James M. Reilly, “The Department of Administrative Hearings for the City of Chicago: A New Method of Municipal Code Enforcement,” Journal of the National Association of Administrative Law Judges 18 (1998): 89.
[lxxii] Association for Neighborhood and Housing Development, The New York City Repair Enforcement Board.
[lxxiii] John Bartlett, (Executive Director, Metropolitan Tenants Organization), interview by Samantha Wright, November 19, 2010.
[lxxiv] Seeley, interview.
[lxxv] Posilkin, interview.
[lxxvi] “Civil Gideon” is a reference used to describe a right to counsel in civil cases, analogous to right to counsel in criminal cases that was established in the landmark U.S. Supreme Court case, Gideon v. Wainwright, 372 U.S. 335 (1963).
[lxxvii] Civil Legal Services Hearing, 130 (Statement of Judge Madhaven).
[lxxviii] Brescia, “Sheltering Counsel,” 205, note 42.
[lxxx] Civil Legal Services Hearing, 134 (Statement of Judge Madhaven).
[lxxxi] Civil Legal Services Hearing, 49 (Statement of Judge Gonzalez).
[lxxxii] Civil Legal Services Hearing, 135 (Statement of Judge Madhaven: “When I was a Legal Aid lawyer my job was simple. The judges didn’t hear about [my clients’] crises because I dealt with that end of things. The role for the judge was simply to decide the narrow legal issue that was before the judge. I mean, that’s how the court should function.”).
[lxxxiii] Paris Baldacci, “Assuring Access to Justice: The Role of the Judge in Assisting Pro Se Litigants in Litigating Their Cases in New York City’s Housing Court,” Cardozo Public Law, Policy, and Ethics Journal 3 (2006): 659.
[lxxxiv] See, e.g., Judge Gary Marton, Resolution Part Rules, accessed November 25, 2010, http://www.nycourts.gov/courts/nyc/housing/Part_Rules/kings/martonresolution.htm (“Stipulations shall state whether repairs are necessary. If repairs are necessary, they shall be itemized, and access and completion dates shall be specified. If repairs are not necessary, the stipulation shall so state.”).
[lxxxv] New York County Lawyers’ Ass’n, Best Practices for Judges in the Settlement and Trial of Cases Involving Unrepresented Litigants in Housing Court (2008), 7.
[lxxxvi] Shultz, interview.
[lxxxvii] Posilkin, interview.
[lxxxviii] Roberta Bernstein, (President, Small Property Owners of New York), e-mail message to Megan Turek, February 18, 2011.
[lxxxix] William Carbine, (Assistant Commissioner of Neighborhood Services, HPD), telephone interview by author, November 18, 2010.
[xc] Ben Chapman and Erin Einhorn, “New Website Aims to Shine Light on City’s Worst Slumlords,” N.Y. Daily News, August 30, 2010, accessed November 25, 2010, http://articles.nydailynews.com/2010-08-30/local/27073950_1_tenants-slumlord-hpd.
[xci] “NYC’s Worst Landlords Watchlist,” Public Advocate for the City of New York, accessed March 3, 2011, http://www.pubadvocate.nyc.gov/landlord-watchlist.
[xciii] Dwoskin, “Who’s My Landlord?”
[xciv] Pujara, interview.
[xcv] City of New York, Preliminary Fiscal 2011 Mayor’s Management Report, 80.
[xcvi] Roberta Bernstein, e-mail, February 18, 2011.