TESTIMONY OF LEGAL SERVICES NYC

REGARDING PROPOSEDREGULATIONS GOVERNING

PROVISION OF RELOCATION SERVICES

TO TENANTS DISPLACED BY VACATE ORDERS

January 2015

Legal Services NYC is one of the largest law firms for low income people in New York City. With community-based offices and numerous outreach sites located throughout each of the city’s five boroughs, Legal Services NYC’s mission is to provide expert legal assistance that improves the lives and communities of low income New Yorkers. Legal Services NYC annually provides legal assistance to thousands of low income clients throughout New York City.

We welcome the opportunity to testify before the Department of Housing Preservation and Development in connection with its proposed new rules governing the provision of relocation services to tenants displaced by vacate orders.

Unfortunately, we find that HPD’s proposed new rule does little to expand the services and protections offered to vulnerable individuals and families who are displaced – due to no fault of their own – by the City’s issuance of vacate orders. Instead, the new rule imposes numerous new requirements and procedural obstacles to retention of temporary shelter, and generally seems to elevate HPD’s administrative convenience above the needs and rights of displaced tenant families.

We are particularly troubled that nowhere in the proposed Rules is any mention that disabled tenants may request waiver, modification, or accommodations regarding any of HPD’s procedures and requirements, and indeed, in subsections (f) and (g), HPD actually removes “physical incapacity or illness” as an excuse for failure to accept a referral (as formerly set forth in subsection (g)(1)(iv)).

We recommend that rather than increase the responsibilities and obligations of displaced families, HPD should itself assume responsibility of referring all buildings with vacate orders to its own Housing Litigation Bureau for commencement of comprehensive actions to compel the swift rehabilitation of the premises and removal of the vacate order.

In addition to these general observations, we offer the following specific comments on the provisions of the proposed rule:

Subsection (a) – HPD has changed the definition of “Standard Apartment” to permit referrals to apartments with unlimited numbers of hazardous “B” violations, in place of the former limit of 3 such violations. The current rule appears to exclude only apartments with “C” violations.

Subsection (b)(2) – HPD seeks to impose a new requirement that displaced tenants accept or decline relocation services within 30 days or permanently lose their eligibility for assistance. In our experience, many tenants initially seek shelter with friends or relatives based on an unduly optimistic hope that their landlord will commence repairs promptly and in good faith. After exhausting the hospitality of relatives, and realizing the probable true length of their displacement, these families then turn to HPD for long term shelter. The new Rules’ unnecessary exclusion of such families does nothing to promote their overall purposes of minimizing resort to the DHS shelter system and of reducing tenant hardship. We urge that if HPD must impose a time limit, that it be no less than 90 days.

Subsection (b)(4) – If HPD does not provide relocated persons with a copy of the Rules in their native language, it should offer an oral explanation or interpretation of its provisions. Also, since HPD contemplates giving copies of the Rules to tenants of varying literacy skills and English proficiency, it should try to simplify the Rules’ language and render the provisions into plain English. For example, the current section (d)(3):

A Relocatee who believes that a dwelling unit referred to him or her by HPD is not a Standard Apartment will deliver a notice to his or her Case Manager specifically stating in writing the facts upon which such conclusion is based within one week after the referral of such dwelling unit …

might be rendered more understandably as:

A relocated person must give written notice to his Case Manager within one week of a referral, listing any reasons why he believes the apartment or room offered by HPD does not meet the requirements in subsection (a) for a “Standard Apartment.”

Subsection (b)(7) – HPD has reduced the number of required apartment referrals from three to one. If HPD proceeds with this reduction, it should include a provision permitting relocated persons to decline a referral for “good cause” including, for example, disability-related reasons, hardship due to distance from work, children’s school, or medical providers, reasons related to domestic violence, and the like. The current rule represents a step backward from former subsection (g)(1).

Subsection (b)(9) – The new rule allows HPD to terminate services if the relocated person fails to return to his original apartment after it has been repaired. The rule should provide an exception for cases in which the placement of the vacate order forms part of a pattern of harassment that places the tenant in fear of harm, including future repeated interruption of essential services. Our office, for example, has represented tenants displaced as the result of suspicious fires, who were justifiably afraid to return to their original homes.

Subsection (c) – The new rule laudably removes the cap on reimbursable moving expenses, and for the first time offers reimbursement for storage expenses. However, the rule carries over without change the schedule of personal property allowances that must have been grossly inadequate even when it was first promulgated in 1991. Offering an allowance of $150 to a family that has lost all the possessions in a one bedroom apartment does not constitute meaningful assistance.

Subsection (d)(9) – HPD’s new proposed policy terminating assistance to relocated persons who enter into agreements with their former landlords ignores many of the harsh realities facing persons displaced by vacate orders. It is rare that landlords expeditiously begin repairs in such buildings. Many landlords view vacate orders as an opportunity to rid themselves of regulated tenants, and deliberately delay repairs in the hope that tenants will relocate and abandon their leaseholds. Landlords frequently harass or pressure tenants into accepting buy-out offers, threatening that if they do not, they will never be able to return to their apartments. Penalizing tenants for succumbing to such pressure would constitute an injustice, unless HPD establishes a procedure to provide relocated persons with legal counsel, and/or itself undertakes to commence litigation to compel the lifting of the vacate order.

Subsection (e) – An exception for persons with disabilities is especially appropriate in this section, since illness and incapacity may frequently provide a valid reason both for failing to occupy shelter, and for failing to give advance notice of a temporary absence. As mentioned above, the Rules should contain a separate section memorializing HPD’s obligation to offer accommodations and modifications as to all of the Rules’ substantive provisions.

Subsection (f) and (g)(1)– As noted above, HPD should make provision for “good cause” refusals of apartments, including but not limited to disability-related reasons.

Subsection (g)(3), which penalizes families for failing to “actively seek out” apartments on their own, fails to take into account the reality that low income families may simply be unable to locate any housing on the private market without a government subsidy. Requiring such families to persist in an utterly futile search, and terminating their shelter if they do not, fails to serve any of the purposes of HPD’s relocation program. The penalty should be limited to families who have financial means to pay market rent, or who fail to cooperate with HPD’s efforts to find them affordable apartments.

Subsection (g)(7)(ii) gratuitously allows HPD to terminate services if the relocated person fails to pay $1.00 to her landlord pursuant to DHCR order. Although DHCR provides this procedure to ensure that the landlord is on notice of the tenant’s continuing claim to the apartment, utilization of this procedure is not a requirement for maintenance of tenancy rights, payment of even $1.00 is not required under a tenant’s lease after a constructive eviction, and failure to utilize the DHCR procedure does not constitute a legal surrender of the premises. HPD should therefore excise this ground for termination from the Rules.

Subsection (g)(8) similarly adds a new and unnecessary ground for termination of services. Subsection (g)(4) already allows termination of services to persons who threaten the health or safety of others in the shelter. Adding a ground for termination based on a lesser and much vaguer standard of substantially interfering with the “orderly operation” of the shelter unnecessarily raises a risk of arbitrary action and termination of shelter for de minimis reasons.

Subsection (h)(2)(iv) – The notice to the relocated person should be consistent with subsection (i)(5) which offers interpretation provided by HPD. Also, the Rules should use the terms currently used in the language access context: “interpretation” is now generally used to refer to oral language, while “translation” refers only to written documents.

Subsection (j) – The new Rules omit former subsection (k)(3) which set out equitable factors for the Hearing Officer to consider in setting a termination date. These factors are still relevant to the Hearing Officer’s determination and should be restored to the Rules.

Subsection (k) sets an arbitrary and very short time limit in which relocated persons must apply to vacate defaults. This unnecessarily harsh provision fails to take into account the stressful and chaotic circumstances that dislocated families encounter. The time limit is especially inappropriate in situations covered by section (k)(1)(i) where the relocated person alleges they did not receive notice of the hearing and therefore will not know that he has defaulted. With respect to section (k)(1)(ii), HPD should give clear notice that the relocated person must state both an excuse for default and a meritorious defense – many of our clients have difficulty understanding the difference between these concepts, and have difficulty reopening defaults despite meritorious claims. HPD should create a form that will help insure that relocated persons supply all necessary information. Subsection (k)(3) inequitably allows HPD to give only 3 days’ notice of a rescheduled hearing, even where HPD itself caused the default by failing to give proper notice of the termination or hearing.

Former subsection (n) – The proposed Rules unnecessarily remove the provision which allowed relocated person to request a grievance hearing if they believe HPD is violating applicable rules or regulations.

Conclusion

The proposed changes to HPD’s Rules governing provision of relocation services significantly weaken the rights and protections of displaced tenants, fail to take into account the stresses and challenges faced by these vulnerable families, and fail to promote the public purposes of the relocation program. We urge HPD to abandon the proposed Rules and develop an alternative proposal that more adequately addresses the urgent needs of displaced families rather than focusing on HPD’s administrative convenience.

Thank you for giving us the opportunity to offer our thoughts on the proposed regulation.

Respectfully submitted,

Edward Josephson, Esq.

Legal Services NYC

40 Worth Street, Suite 606

New York, NY10013

(718)-237-5538