Testimony: Building Code Enforcement

Thank you to the New York City Council’s Committee on Housing and Buildings for holding an oversight hearing examining the City’s tools for enforcing the housing maintenance code. Our names are Samuel Stein and Oksana Mironova and we are senior policy analysts at the Community Service Society of New York (CSS), a leading nonprofit that promotes economic opportunity for all New Yorkers. CSS uses research, advocacy, and direct services to champion a more equitable city and state. We are also a member of the Right to a Roof coalition.

Snapshot of Housing Conditions from the 2021 Housing and Vacancy Survey and 2022 Mayor’s Management Report

The 2021 Housing and Vacancy Survey (HVS) showed a disturbing trend: the city’s housing stock is becoming both more expensive and more rundown. Almost all the markers of maintenance deficiencies tracked by the survey got worse since 2017 (with the exception of heating problems and broken toilets). This could signal landlord disinvestment and neglect, but it could also be a result of the survey’s timing, as building maintenance may have been deferred due to pandemic-related safety and supply chain issues.

24 percent of New York City buildings had rodent infestations in 2021. 18 percent of apartments had leaks, and 17 percent had cracks in their ceilings or floors. Perhaps relatedly, 16 percent need more heat in the winter and 10 percent saw their heat shut off in the winter, which can lead to a dangerous reliance on space heaters or open ovens. 16 percent of buildings with elevators had elevator breakdowns. 9 percent of apartments had mold issues.

While we will have to wait for the 2021 HVS microdata to do a historical analysis of conditions by housing type, New York City’s public housing stock showed the greatest levels of disrepair. Only one fifth of the New York City Housing Authority’s stock had no maintenance issues, whereas 43 percent had more than three issues. Public housing is the only housing type in New York City where more tenants have three or more maintenance deficiencies than had one or two deficiencies.

Meanwhile, the 2022 Mayor’s Management Report states that Fiscal Year 2022 saw a record 583,230 housing complaints, including a record 362,180 emergency complaints. These numbers were steadily rising before Covid, then dipped in 2020 and 2021, and are now well above pre-pandemic numbers. The incidences of heat and hot water and lead paint complaints (131,579 and 39.787 respectively) were higher than any previous year reported. That said, HPD also closed a record number of complaints (577,325) and maintained a stable ratio of completed inspections to attempted inspections (82%). But the average time required for HPD to close emergency complaints rose to 16.4 days (six days longer than the average in Fiscal Year 19), and the average time for non-emergency complaints rose to 28.6 days (11 days longer than Fiscal year 2019).

At the same time, the percentage of violations corrected by owners dropped from 50% in Fiscal Year 2021 to 47% in Fiscal Year 2022, even as emergency violations corrected by HPD also declined from 9% to 8%. This suggests a growing number of violations are not being corrected by either the owner or the agency.

The numbers of units subject to proactive enforcement programs – Alternative Enforcement Program (AEP), Underlying Conditions Program, and 7A receivership – were more erratic. At 4,135 units, fewer units were subject to AEP than the previous year (6,484), but more than in Fiscal Year 2020 (1,256). A similar pattern holds for 7A, with 34 cases discharged or compliant, compared to 40 in Fiscal Year 2020 and 23 in Fiscal Year 2021. Far fewer units were discharged from the Underlying Conditions program, however, with 223 units this year compared to 602 in Fiscal Year 2020 and 1,488 in Fiscal Year 2021. All of this suggests that there is much more room for greater use of the city’s proactive building code enforcement tools.

The Need for Stronger Code Enforcement

Like expanded tenant protections, strong code enforcement can lay the groundwork for social housing by making housing less attractive to investors seeking lucrative short-term returns. These investment strategies are often predicated on tenants living in decrepit conditions. Laws that force landlords to reinvest rental income in their portfolios can both address long-neglected physical conditions, and reduce speculative real estate activity, opening up the possibility of social housing conversions.

Despite the statewide standard of Warranty of Habitability, tools for tenants and public agencies to address substandard conditions typically exist in only the most extreme scenarios. In New York City, the more detailed Housing Maintenance Code is systematically under-enforced. Changing this system requires a shift in the way public agencies and court systems regard landlords of substandard housing who are too often given the benefit of the doubt, allowing dangerous conditions to linger.

Stronger codes help tenants organize against visibly poor conditions — like the presence of vermin, mold, and leaks — and against more hidden concerns — like exposure to lead and allergens, unreliable heat and hot water, and more. Additionally, universal standards create a broad constituency of tenants who can continue to organize for the resources needed for proper enforcement.

Housing agencies and courts must actively enforce maintenance codes, instituting severe minimum penalties for lack of compliance. Proactive and well-funded enforcement programs compel landlords to spend money on ongoing maintenance and repairs, and address capital needs, such as replacing a boiler or a roof, or updating the electrical wiring. Too often, existing programs address only surface-level concerns, and tenants have little recourse when poor building conditions inevitably resurface, a product of lax or even nonexistent enforcement.

Tenants must be given the tools with which to demand safe housing conditions, including ways to take action and demand proper oversight by experts, if code enforcement regimes fall short.

Recommendation 1: Increase Civil and Financial Penalties

Appropriately heavy civil and financial penalties can disincentivize landlords from maintaining their properties at substandard levels. Under New York’s existing laws and programs, many landlords regard code enforcement programs and city and tenant- initiated lawsuits as little more than the cost of doing business. Increased fines, penalties, and interest rates for landlords who own buildings with significant and persistent violations can change this dynamic, making it unprofitable to maintain unsafe conditions or by triggering municipal foreclosure.

New York City has the most robust code enforcement system in the state. The city agencies tasked with enforcing building codes can levy and collect fines either through administrative proceedings or by suing landlords who fail to follow the Housing Maintenance Code. However, large portions of these fines and penalties sit unpaid for years, or are forgiven in exchange for agreements that the repairs be made over time.

As of the end of 2020, in each of New York City’s five boroughs, between 65% and 85% of open housing code violations in rent stabilized buildings have remained unresolved for a year or more. This translates into over 550,000 housing code violations that NYC tenants dealt with over the course of 2020. The sheer number of outstanding violations illustrates that New York City’s maintenance code and the financial penalties associated with it (which are the strongest in the state) is not enough to incentivize all landlords to maintain their buildings.

Tenants often find that reporting poor conditions does not lead to meaningful building improvements. Even when repairs are made, they are often done on the surface level, leaving underlying problems to fester. This cycle, where tenants continually file complaints about issues that are never truly resolved, is demoralizing. Tenants are forced to adjust to unsafe living conditions, and lose hope in the potential for collective change. The lack of serious financial consequences undermines the overall code enforcement system.

The City must escalate enforcement against landlords who repeatedly fail to make repairs, and push to recover 100% of levied fines and penalties, including the costs of repairs under proactive enforcement programs. For landlords who refuse to pay, public agencies must establish and proactively implement a transparent process to either force collection or initiate municipal foreclosure, and to transfer foreclosed properties to social housing entities.

Two of the bills under consideration today move us in this direction: Intro 204 (Sanchez), which raises the inspection fees for complaint-based housing inspections where multiple heat and hot water or immediately hazardous violations, and authorize HPD to raise them even higher; and Intro 583 (Public Advocate Williams), which raises the penalties for many violations and creates a “correction watch list” for multiple offenders that would add greater city oversight.

Recommendation 2: Expand Proactive Enforcement

To create a robust code enforcement system, municipalities must proactively assess rental housing, and intervene in issues as they arise. In New York State, municipalities largely only rely on tenant-initiated complaints to identify dangerous living conditions. The City of New York has several proactive enforcement programs — including the Alternative Enforcement Program (AEP), Certificate of No Harassment (CONH), Proactive Preservation Initiative (PPI) and the Emergency Repair Program (ERP) — which either trigger active monitoring of a building’s conditions or allow the City to directly make repairs in long-decrepit buildings, at the owner’s expense. Outside of New York City, proactive enforcement is rare. One example is Albany’s Residential Occupancy Permit (ROP) system, which requires an inspection of all rental units in the city every 24 months. Based on the successful campaign in Albany, tenants in Syracuse won a similar program. There are also Emergency Repair Ordinances that local tenant organizations fought to pass in both Rochester and Albany, which allow code enforcement officers to bid out the work to repair building violations when a landlord refuses to comply.

While these programs are a start, they do not go nearly far enough. Though New York City has more than two million renter households, CONH covers around 1,100 rental properties, while the AEP program targets 250 properties annually. While AEP is an effective enforcement mechanism that should be expanded to additional buildings each year, a significant percentage of buildings remain in the program year after year, indicating that New York City lacks an escalation strategy for landlords refusing to comply with increased enforcement. While the ERP program is used more frequently, it often leads to shoddy and surface-level repairs.

Throughout 2019, New York City spent close to $48 million across more than 10,000 properties to correct dangerous issues in rental buildings through proactive enforcement programs. A year later, by the end of 2020, one data source estimated that landlords had paid back less than $8 million of those costs.

In order to compel landlords to reinvest in their properties, the government should take a proactive enforcement role. Code enforcement agencies must implement clear timelines for the resolution of violations and transparent processes by which proactive enforcement is triggered, rather than leaving the decision-making to individual code inspectors. Further, proactive enforcement must be accompanied by heavier financial penalties, which create points of leverage to convert long-neglected and distressed properties into social housing. And most importantly, agencies proactively enforcing housing codes must work collaboratively with tenants and community groups, who have intimate knowledge of the history of building neglect and past efforts to force the owner to behave responsibly. When landlords continually refuse to keep their buildings in habitable conditions, these enforcement agencies must rely on tenants to drive escalation strategies, up to and including transfer of ownership or conversion to social housing.

Two more bills under consideration today move us in this direction: Intro 434 (Sanchez) expands the city’s heat sensor program, through which the city actively monitors heating conditions in buildings with repeat violations; and Intro 337 (Hudson) requires HPD to inform tenants of the status of open housing maintenance code violations, increasing the opportunity for tenants and community groups to collaborate with HPD on code enforcement.

Recommendation 3: Expand and Reform 7A Administration

If a landlord allows their building to become physically distressed, Article 7A of New York’s Real Property Actions and Proceedings Law provides tenants in New York City, as well as Nassau, Suffolk, Rockland, and Westchester counties, with the right to petition the court to take away operational control of their buildings from their landlord and hand it over to an administrator for management and rehabilitation.

In the 1970s and 1980s, 7A administrators were common in disinvested neighborhoods, facilitating transitions to nonprofits or limited equity coops. Today, 7A cases are far more rare, and serve as a cudgel to temporarily force building repairs, just for the duration of the case. Landlords often let 7A cases drag on for long enough to remedy just enough unsafe conditions to exit the program, immediately letting the property deteriorate again after dismissal or settlement.

Between 2016 and 2019, an annual average of 23 7A cases were filed in New York City housing courts. In contrast, we estimate that there are currently close to 10,000 chronically distressed buildings in NYC, representing over 115,000 units. (Chronic distress defined as: more than 2.5 B or C Housing Code violations per unit during at least 6 quarters since 2008).

Article 7A can once again serve as a crucial tool for tenants fighting for safe and habitable conditions. The program should be used to rehabilitate neglected buildings and transfer them to responsible, long- term stewardship by social housing operators. The 7A administrator appointment process must be reformed to be quicker and more accessible to tenants. Further, Article 7A should be available to all tenants across New York State.

Recommendation 4: Better Integrate NYCHA Into the Mainstream Code Enforcement System

Private tenants can register complaints about conditions by calling 311, where the complaint is recorded and assigned a number, then referred to HPD for follow-up. As appropriate, HPD inspectors from the Code Enforcement Unit are sent to inspect the units and, if confirmed, the violation will be classified, A, B, or C in terms of severity, and recorded, pending further action. The complaints and violations are public records and can be viewed online. Violations can be used to obtain repairs in housing court and allow HPD to repair conditions at the owner’s expense.

By contrast, the NYCHA system is opaque. Residents call the Customer Contact Center (CCC) to report conditions and request repairs and obtain a work ticket number. The inspectors who investigate the complaints are NYCHA employees and there are no penalties for failure to correct the conditions. None of the information recorded by CCC concerning complaints, work orders and responses, or potential violations is available outside of NYCHA. Unless a NYCHA resident brings an action in Housing Court and an HPD inspection is requested by the Court, there is no independent, external confirmation of the reported deficiency.

In an attempt to address these inequities, last November the Council moved forward a bill, successfully enacted as Local Law 127, which amended the City’s administrative code to require the 311-customer service center to receive complaints or requests for service by NYCHA residents. The law also required that the 311 center route complaints and service requests to NYCHA, as well as publish an annual report on all the NYCHA complaints and requests for service it receives.

Unfortunately, Local Law 127 is not being implemented. Nothing has changed at the 311 center or at NYCHA. If a NYCHA resident calls the 311 Citizen Service Center to register a complaint, the complaint is automatically forwarded NYCHA call center. The name of the complainant, the nature, date, and location of the complaint are not recorded in the 311 system. Needless to say, the complaint is not referred to HPD code enforcement for follow-up enforcement.

NYCHA residents should have the same rights and protections other tenants can access under our local code enforcement system: the right to HPD code enforcement and, as necessary, inspections; the leverage to get code violations cited and have repairs completed.  NYCHA residents need to be recognized as an integral part of our city—they should have parity with the rights and protections other tenants have under the law.

The Authority, like any owner or landlord of a multiple dwelling, is required to comply with the city’s housing maintenance and building codes. However, NYCHA’s relative immunity from city enforcement and exposure serves to mask the way in which resident complaints and demands for decent conditions in public housing are handled, giving the city a pass to look the other way.

Ending NYCHA’s exemption would give greater public transparency and accountability for resident conditions in our public housing. It would also provide NYCHA residents with access to public databases—access that private tenants have—where they could determine the extent of violations in their apartments and buildings, and whether violations have been cured or are still outstanding. 

Recommendation 5: Bring CityFHEPS Inspection Standards in Line with Section 8

Substandard housing conditions are all too commonplace in New York, especially for low-income renters, who are predominantly people of color. According to a study by the organizations Neighbors Together and Unlock NYC, An Illusion of Choice, voucher holders facing persistent source of income discrimination and a limited pool of available apartments end up applying to live in apartments with an average of 1.3 open violation, compared to the citywide average of 0.8 open violations per unit. As a member-leader of Neighbors Together put it in their report, “voucher holders only have access to buildings with a lot of violations.”

When a shelter resident with a CityFHEPS “shopping letter” finds an apartment that they are interested in renting, it is inspected by a NYC Human Resource Administration case worker. The criteria that case worker uses to determine whether the apartment is in good enough condition are often unclear to voucher holders and advocates alike, and can vary wildly between case workers, some of whom may rush to approve any apartment and another while others deny apartments on grounds the voucher-holder may contest.

After a CityFHEPS voucher holder moves into an apartment, there are no regular inspections, only tenant complaint-triggered checks. Under Section 8, however, inspections occur at least every other year in order to ensure that publicly subsidized apartments are maintained in working order and that the rental subsidies are used to reinvest in housing.

The City should reform the CityFHEPS voucher program to make bi-annual inspections standard and ensure that city dollars are not being pocketed by unscrupulous landlords who do not maintain healthy and safe living conditions. Voucher tenants should be able to easily transfer to different housing if their landlord is not meeting maintenance standards, and if the government stops payment to a landlord that is failing to meet quality standards, voucher-holding tenants should never be held responsible for the subsidy amount.

Thank you for the opportunity to testify. If you have any questions about our testimony or CSS’s research, please contact us at sstein@cssny.org and omironova@cssny.org.

Issues Covered

Affordable Housing