Albany NY Good Cause Eviction Bill - Everything a Landlord Needs to Know
On July 19, 2021, the Albany NY Common Council earned the dubious distinction of being the first city in the state to pass a (euphemistically-named) "Good Cause Eviction" bill that, in typical NYS bureaucratic fashion, is sure to have lasting unintended consequences for both landlords, tenants, and the affordable housing market in general. Adding insult to injury, the bill comes at a time when many landlords are still reeling from the ongoing eviction moratoriums due to Covid, and the passage of the Housing Stability and Tenant Protection Act of 2019 (HSTPA).
This article breaks down everything an Albany landlord needs to know about the new bill and some tips for navigating the murky landlord-tenant waters ahead.
DISCLAIMER: I'm not a lawyer, and this article is NOT legal advice in any way. I'm just a licensed property manager and landlord in New York State, and below are my interpretations, opinions, and experience as it relates to the Albany NY Good Cause Eviction Bill. Please consult with your attorney before taking any action as a result of reading this article!
How We Got Here
The groundwork for this bill was laid back in 2019 as part of the HSTPA. For the uninitiated, the HSTPA was a package of sweeping, state-wide legislation that provided a wide swath of tenant protections in lieu of a landlord's property rights that completely changed the landscape of NY landlord-tenant law overnight. At the time, a state-wide good cause eviction bill was also in the works, but never made it out of committee since even many of the supporters of the HSTPA found good-cause eviction to be a bridge too far. However, the tabling of the issue rankled many tenant-advocate groups who vowed to bring the issue to a local level, particularly in the larger, left-leaning cities throughout the state, like Albany, Buffalo, Rochester, and Syracuse.
Fast forward to April 2021, and Albany Common Council member Alfredo Balarin (D) introduced the bill, known as Local Law F of 2021, to the council for "debate". (It bears noting that the council is composed of 16 out of 16 democrats and next year will celebrate its 100th anniversary of democratic rule in Albany, so the term "debate" is used generously here...). In a surprise to no one, it passed on July 19, 2021 with the support of Mayor Kathy Sheehan (D).
Breaking Down The Albany Good Cause Eviction Bill
Below is everything a landlord needs to know about the intricacies of the Good Cause Eviction bill, broken down clause by clause. Although the bill has been passed, be aware that it generally takes years of judge's interpretations and rulings on laws such as this before precedents are established, so my interpretation may or may not align with a judge's interpretation.
Residential Occupancy Permit Required
Clause: No action for eviction may be commenced without the Petitioner’s having submitted to the Court a copy of the most recently-issued Residential Occupancy Permit.
What it Means: This is not new, in 2019 Governor Cuomo already signed into law that a Residential Occupancy Permit (ROP) is required state-wide in order for a landlord to collect rent. However, the vast majority of towns throughout the state have no system for issuing ROPs, so this has only affected larger cities who issue ROPs for rental properties. Regardless, if you are a landlord, it is imperative that you know if your city or town issues ROPs and that yours remains current.
Applicability
Clause: This article shall apply to all housing accommodations EXCEPT:
- Owner-occupied premises with less than four units;
- Premises sublet ...where the sublessor seeks in good faith to recover possession of such housing accommodation for their own personal use and occupancy;
- Premises where the possession, use or occupancy of which is solely incident to employment and such employment is being lawfully terminated; and
- Premises otherwise subject to regulation of rents or evictions pursuant to state or federal law to the extent that such state or federal law requires “good cause” for termination or non-renewal of such tenancies.
What it Means: Basically all traditional residential landlords are subject to this law. The only exceptions are owner occupants in properties up to 3 units, sublessors, and temporary housing specifically for work (such as contractors in town for several months while completing a project).
Necessity for Good Cause
Clause: No landlord shall...remove any tenant from housing accommodation except for good cause as defined in section 328 of this article.
What it Means: Prior to the passage of this bill, landlords had the right to choose to not renew a tenant's lease for any reason. However, the HSPTA did require that a notice of up to 90 days be required in certain cases when not renewing a lease. Landlords are in the business of keeping their units as occupied as possible, so terminating leases was often a landlords last resort when removing a problem tenant that had already exploited every loophole available to them to remain in a property.
For example, suppose a tenant is repeatedly disruptive or threatening to other tenants and the tenant has been formally notified of the violation but continues to misbehave. At that point, a landlord can attempt to evict for violating the terms of their lease, but this would need to be proven in court which is costly and difficult to prove, since neighboring tenants will rarely sign affidavits for fear of retribution from the bad tenant. Instead, a landlord has always had the ability to wait out the offending tenant until their lease expires, not renew their lease, and if they do not vacate the premises proceed to eviction for which their is no defense if a lease was terminated legally.
This particular clause states that a landlord may now only terminate a lease for any of the 10 reasons stated explicably in the bill. This essentially creates the same situation as described in the eviction case above, in which a landlord now must prove to the court that a tenant is a problem, which can often be impossible. In most cases, neighboring tenants are far more likely to simply vacate the property as opposed to get involved in a pending legal action of their potentially violent neighbor.
Grounds for Removal of Tenants
Clause: No landlord shall remove a tenant from any housing accommodation, or attempt such removal or exclusion from possession, notwithstanding that the tenant has no written lease or that the lease or other rental agreement has expired or otherwise terminated, except upon order of a court of competent jurisdiction entered in an appropriate judicial action or proceeding in which the petitioner or plaintiff has established one of the following grounds as good cause for removal or eviction.
What it Means: A landlord can only terminate a tenant's lease under court order from a judge. This will dramatically increase the time and expense associated with lease terminations as all lease terminations will now need to go through the court system in order to remove problem tenants. This also applies regardless of the tenant's lease status, which effectively deems "month to month" tenancies extinct in Albany.
1. For Non-Payment
Clause: The tenant has failed to pay rent...provided...that the rent due...did not result from a rent increase or pattern of rent increases which, regardless of the tenant's prior consent,...is unconscionable or imposed for the purpose of circumventing the intent of this article. In determining whether all or part of the rent due and owing is the result of an unconscionable rent increase..., the Court may consider,...i) the rate of the increase relative to the tenant’s ability to afford said increase, ii) improvements made to the subject unit... iii) whether the increase was precipitated by the tenant engaging in the activity described at section 223-b (1(a)-(c) of the Real Property Actions and Proceedings Law, iv) significant market changes relevant to the subject unit, and v) the condition of the unit or common areas serving the unit, and it shall be a rebuttable presumption that the rent for a dwelling not protected by rent regulation is unconscionable or imposed for the purpose of circumventing the intent of this article if said rent has been increased in any calendar year by a percentage exceeding five percent.
What it Means: If you read closely, this is de facto rent control, or worse. This clause sets the stage for every tenant being evicted for non-payment of rent to claim an "unconscionable rent increase" based purely on their own inability to afford the increase, even if the increase was agreed upon by the tenant and was well within market conditions. At least in cases of rent control, a landlord has explicit limits as to how much they can raise rent annually, whereas this clause potentially limits increases to what a tenant can afford, which in some cases could arguably be zero.
2. For Lease Violations
Clause: The tenant is violating a substantial obligation of their tenancy...and has failed to cure such violation after written notice that the violation cease within ten days of receipt of such written notice, provided however, that the obligation of tenancy for which violation is claimed was not imposed for the purpose of circumventing the intent of this article.
What it Means: Tenants are now required to be provided an opportunity to cure the issue, regardless of the severity of the issue or the frequency of issues they cause. For example, suppose a tenant is found to be smoking in their unit which is prohibited in their lease. Then a week later, the tenant is being loud and disruptive to neighboring units. Another week later, they break a window. Another week later, they have an unregistered, broken down vehicle on the property. Another week later, they're found to be parking on the grass. Technically, since each of these issues are distinct and would require a separate 10 day notice to cure, a landlord would have no grounds to terminate this tenant's lease assuming they "cure" each issue independently.
3. For Being a Nuisance
Clause: The tenant is committing or permitting a nuisance in such housing accommodation, or is maliciously or by reason of negligence damaging the housing accommodation; or the tenant's conduct is such as to interfere with the comfort of the landlord or other tenants or occupants of the same or adjacent buildings or structures.
What it Means: Judges in Albany have a history of an unwillingness to recognize "nuisance" behavior, and this broad wording is unlikely to be a solid avenue for pursuing a lease termination. It also can be very difficult to prove in court, especially in cases of smoking, noise, harassment, or other complaints that may not have photographic evidence.
4. Occupancy of the Housing is in Violation of the Law or Uninhabitable
Clause: Occupancy of the housing...is in violation of...law and the landlord is subject to civil or criminal penalties therefor; provided however that the City f Albany has issued an order requiring the tenant to vacate the housing accommodation. No tenant shall be removed from possession of a housing accommodation on such ground unless the court finds that the cure of the violation of law requires the removal of the tenant and that the landlord did not...create the condition necessitating the order to vacate. In instances where the landlord does not undertake to cure conditions of the housing accommodation causing such violation of the law, the tenant shall have the right to pay...to cure such violation provided that any tenant expenditures shall be applied against rent to which the landlord is entitled. In instances where removal of a tenant is absolutely essential to their health and safety, the removal of the tenant shall be without prejudice to any leasehold interest or other right of occupancy the tenant may have and the tenant shall be entitled to resume possession at such time as the dangerous conditions have been removed.
What it Means: If the property becomes uninhabitable for any reason, perhaps due to flood, fire, infestation, etc., the tenant can be evicted in order for repairs to be made. However, a tenant may choose to pay for the repairs themselves in lieu of rent in order to remain in the property if the landlord chooses to not make repairs. Further, if a tenant is evicted and the landlord does make repairs, the evicted tenant is entitled to move back in.
While this may seem like common sense on the surface, when a property has a major issue like a flood or fire, that is usually used as an opportunity to significantly improve the property, thereby justifying a substantial rent increase. However, if a displaced tenant still has the right to return to the fully remodeled property, this severely limits a landlords ability to get market rent based on the "unconscionability" clause described above. It also gives license to a tenant to make unauthorized repairs or improvements on behalf of a landlord following a major repair event, thereby putting the landlord in hock to the tenant for an indeterminate period.
5. Using for Illegal Purposes
Clause: The tenant is using or permitting the housing accommodation to be used for an illegal purpose.
What it Means: Self-explanatory. However, the difficulty is still in providing evidence to a judge.
6. For Not Providing Access
Clause: The tenant has unreasonably refused the landlord access to the housing accommodation for the purpose of making necessary repairs or improvements required by law or for the purpose of showing the housing accommodation to a prospective purchaser, mortgagee, or other person having a legitimate interest therein.
What it Means: "Unreasonably" is the key term here which can be interpreted widely by a judge. For example, if a tenant will only provide access for repairs after normal business hours, is that unreasonable? This also makes no mention of providing access for periodic inspections or suspected lease violations.
7. For Personal Use
Clause: The landlord seeks...to recover possession of a housing accommodation located in a building containing fewer than twelve units because of immediate and compelling necessity for their own personal use and occupancy as their principal residence, or the personal use and occupancy as principal residence of their partner, spouse, parent, child, stepchild, father-in-law or mother-in-law, when no other suitable housing accommodation in such building is available. This paragraph shall permit recovery of only one housing accommodation and shall not apply to a housing accommodation occupied by a tenant who is sixty-two years of age or older or who is a disabled person.
What it Means: If you are a landlord with a personal friend in need of housing, you cannot evict a current tenant to make room for your friend.
8. To Personally Occupy
Clause: The landlord seeks in good faith to recover possession of any or all housing accommodations located in a building with less than five units to personally occupy such housing accommodations as their principal residence.
What it Means: You can evict a tenant if you plan to occupy the residence personally as your primary residence. This does not provide a timeframe for requisite length of residence.
9. For Sale of Housing
Clause: The owner-landlord has in good faith entered into a contract for the sale of the housing accommodation and such contract requires that the housing accommodation be transferred free and clear of any and all residential tenancy obligations.
What it Means: You can only evict a tenant in order to sell the property once the property is under contract for sale. This will have devastating financial consequences for many sellers, since many buyers, especially owner occupant buyers, need assurance upfront that the property will be vacant upon closing. Listing and showing occupied properties with a bad tenant can be a nightmare for all parties involved, and this further incentivizes a tenant to be uncooperative while attempting to sell the property.
10. For Prior Consent to Vacate
Clause: Where the owner-landlord has notified the tenant in writing of the owner-landlord’s intention not to renew a written lease not less than five months in advance of the non-renewal date and the tenant consents, provided that at the time of filing of an eviction proceeding the landlord has in good-faith entered into an enforceable lease agreement with a different party in an arms-length transaction for the premises occupied by the tenant. The non-renewal notice provided for in this section must include language advising the tenant of their right to renew their tenancy and thereby reject the non-renewal, that tenant’s consent must be provided in writing and that the tenant may not be subjected to retaliation for such rejection. The tenant’s consent may be withdrawn any time prior to the owner-landlord’s entrance into new lease agreement for the subject premises.
What it Means: This word soup is a convoluted mess that I presume is aimed at student housing or housing expected to turn over regularly. Essentially, what this clause is trying to say is that if a landlord and tenant mutually agree at least 5 months in advance that their lease will not be renewed, and you have already signed a lease with another tenant to rent the property, and they fail to vacate as promised, they may be evicted.
What the Future Holds
It is not hyperbole to say that the passage of this bill is going to create "tenancy for life" situations in Albany. For hundred of years, leases have been contracts entered into by consenting adults for the right to use someone else's personal property, with the understanding that upon the expiration of that contract, either party had the mutual right to choose to discontinue the arrangement. Now in Albany, leases are no longer mutual agreements, and to rent a property to a tenant is to effectively hand every property right over to that tenant, potentially forever, in exchange for nothing more than 1 month's rent as security.
Upon passage of the HSTPA in 2019, the only saving grace to many landlords was retaining the ability to not renew leases as a last resort to getting rid of problem tenants when no other solution existed. Now that even that right has been removed in Albany, it is difficult to see how this won't have devastating effects to the affordable housing market there. Private investment and development is critical to meeting affordable housing demand, but I'm not sure what landlord would choose to invest in affordable housing in Albany after the passage of this bill.
