A recent analysis of the city’s Certificate of No Harassment pilot says it has been effective in combating some forms of landlord harassment, but that the city could do more to strengthen the program to better protect tenants.
Housing advocates say a city initiative to protect tenants from landlord harassment is working, and should be permanently expanded across the five boroughs—but with improvements.
The City Council passed the legislation behind the Certificate of No Harassment (CONH) pilot program in 2017. The three-year initiative, administered under the city’s Department of Housing Preservation and Development (HPD), requires landlords of select buildings with a history of violations and tenant harassment to apply for certification from the city before they can obtain building permits for construction work.
The program was aimed to prevent landlords from harassing and pushing tenants out of apartments in order to renovate the units and hike rents. Advocates say construction can be a form of tenant harassment itself, with landlords who do work at all hours to disturb residents or who cut off essential services during renovations, such as heat or hot water.
When a landlord applies for a Certificate of No Harassment (CONH) under the initiative, the city will distribute a notice to residents, local elected officials and community organizations as HPD does an investigation into the property, going back five years, to determine if there has been a history of tenant harassment. If HPD determines there has been no harassment, the CONH is issued and the property owners can receive their Department Of Buildings permit.
However, if HPD finds there has been a “reasonable” history of harassment during the five year period, then it can initiate a hearing before the city’s Office of Administrative Trials and Hearings (OATH), where landlords and tenants get the opportunity to state their case, and a city administrative judge makes the ultimate decision. If there is overwhelming evidence of harassment at the property, HPD has the power to deny the application without a hearing.
Signs of success
A recent analysis of the CONH pilot by the Coalition Against Tenant Harassment (CATHnyc), says it has been effective in combating some forms of landlord harassment, but that the city could do more to expand and strengthen the program to better protect tenants. The report’s authors interviewed organizers, outreach workers and legal services providers who have had direct experience with the CONH application process, and reviewed data for buildings that have applied for certificates under the program.
As of October 2020, just 49 buildings had submitted applications for a CONH, representing just an estimated 4.4 percent of the more than 1,000 properties that are subject to the pilot program requirements, according to the report. Advocates say the low participation was impacted by two major events within the program’s first two years: The first was a dramatic reform of rent stabilization laws in 2019, which included limits on individual apartment improvement (IAI) rent increases, elimination of vacancy bonuses and high-rent vacancy decontrol — closing some of the landlord loopholes that CONH was initially designed to curb. The second was the impact of the novel Coronavirus pandemic, which slowed or stopped construction and government administration across the city (including the processing of CONH applications), and made it difficult and dangerous for organizers to engage tenants in person.
Still, the report found signs of positive impact. It found* that nearly half the properties which applied for the program had received more than 100 violations during the investigation period, and uncovered other “concerning numbers of harassment indicators,” with some buildings receiving as many as 30 Environmental Control Board (ECB) violations. Another 16 buildings had seen tenants get evicted during the investigation period.
The data indicates that the CONH program successfully targeted buildings where tenants were at risk for harassment, and the pilot led to further scrutiny of the relationship between the tenants and landlords at those properties, according to advocates. The report found lower harassment indicators in buildings which were granted the CONH, looking at factors such as evictions, problems reported to the city’s housing agencies or and violations received from HPD, DOB or the ECB.
Of the 49 CONH applications the program had received as of October, HPD granted certificates to 17, another 19 were still pending at the time of the report’s publication and 13 buildings withdrew their applications before HPD issued a decision. It’s unclear why a landlord might withdraw an application, though advocates hypothesize that some landlords may have suspected they would not receive approval, or that it was not cost-effective to do the construction work that required a CONH. These withdrawals also impacted landlord behavior, the report concludes.
As of October, no applications had been outright rejected under the program, according to the report. It’s not clear what HPD based those decisions on, though CATHnyc filed a Freedom of Information Law (FOIL) request seeking access to that information in August; HPD has said it will fulfill that FOIL request by March 1, advocates say.
“It has been successful in trying to curb landlords or disincentivize landlords from engaging in particular actions to harass tenants to vacate their homes,” says Rachel Nager, senior staff attorney at Communities Resist, a member group of CATHnyc. “I think the program is a good tool, but I do think that there are ways to make it stronger to continue to achieve the objectives that it started to achieve.”
Widening the scope, closing loopholes
The report makes a number of recommendations for improving the pilot program—which is set to expire in September 2021—including a call to make it permanent and expand it citywide. Currently, the CONH only applies to buildings that have single room occupancy multiple dwellings, those in special designated districts as well as those in “targeted areas” which meet certain program criteria identified by the pilot program (buildings with “high levels of physical distress,” which have seen ownership changes, been subject to vacate orders or other indicators).
CATHnyc says this should expand citywide to include all multiple dwellings and dwellings that are not owner-occupied, and that the city should also consider applying the program to buildings that are up for sale, in an effort to mitigate displacement of tenants who may be evicted before the building is sold. It should also broaden the categories of construction work that require a CONH, to include all work which “materially alters a unit or building” (excluding necessary repairs, such as fixing heat or hot water). The report shared an example of a landlord who removed the front door of a building overnight in Brooklyn, which did not qualify as “demolition” so didn’t meet the criteria to require a CONH and trigger an HPD investigation.
Advocates also want the program to widen its definition of tenant harassment to include a just single instance of work without a permit, instead of multiple instances, as the law currently requires. It should also include a range of other bad landlord behaviors, such as entering a unit without a tenant’s consent, illegally evicting tenants or earning a vacate order on their property. It should also apply to buildings where 30 percent of units are vacant, where apartments have sat empty for more than three months or where more than half of the tenant population has moved out during the investigation period, CATHnyc argues. And if a landlord is denied a CONH for one building, that denial should also automatically apply to all the properties that the landlord may own, the report suggests.
Advocates are also urging city officials to close what it calls a “loophole” in the program: Currently, if a landlord has been denied a CONH, they can enter into a “cure agreement” with the city, which allows them to receive the certificate in exchange for making 20 to 25 percent of the building permanently affordable to those earning an average of 50 percent of the area median income ($51,200 for a household of three.) CATHnyc says this provision should be overhauled to to require those property owners provide an even greater share of affordable units—40 percent—and to make those units available to a wider range of income levels (between $20,000 to $60,000 for households of three). These “cure agreements” should also require landlords to provide a one-year rebate for tenants who lived at the property during the CONH investigation period, the group says.
More tenant engagement
The report also calls for the city to properly compensate community-based organizations contracted to conduct parts of the HPD’s CONH investigation, allowing them to conduct more outreach with tenants and to better monitor harassment. It recommends there be an opportunity for tenants to report and record harassment at any CONH-eligible buildings, even if the landlord has yet to apply for a COHN.
Community-based organizations such as IMPACCT Brooklyn work with tenants whose landlords are facing a COHN investigation, sharing information about the process and their rights. IMPACCT BK community organizer, Raliek Gholson, said one difficulty is reaching tenants before they are actuallyevicted from their homes. By the time a COHN investigation is started at a building and community organizations and tenants are notified, “it’s usually too late, unfortunately,” he says. “It’s already vacant and there’s either the new tenants or those old tenants have already been displaced.”
“We believe that if elected officials and HPD meaningfully incorporate our recommendations into a permanent, citywide CONH program, it will act as a valuable tool for preventing tenant harassment in New York City,” reads the report.
HPD says it met quarterly with CATHnyc and other partner community-based organizations prior to the pandemic to discuss strategies, successes, and challenges related to the pilot program. The agency is required to present its own evaluation of the initiative to the City Council by March.
“Protecting tenants is HPD’s top priority and the CONH program is one of the many tools the City uses to root out harassment and protect tenants,” HPD said in an emailed statement. “HPD is preparing a full evaluation of the pilot and will present findings and recommendations for the City Council in the spring.”
*Clarification: An earlier version of this story misstated the source of this information; it was CATHnyc’s report which identified the number of violations at these buildings, violations which were issued during the five-year CONH inquiry period.