Landlords Aim To Further Dent Protections for Housing Voucher Holders

New York City landlords are challenging city housing discrimination laws after a State Supreme Court ruled that a requirement for Section 8 housing vouchers was unconstitutional.

Landlords are hoping to strike down local laws protecting tenants who use rental vouchers from discrimination.

Protections for voucher holders in New York State were already under threat due to a controversial decision from an upstate Supreme Court in March, which ruled that requiring apartment inspections for the Section 8 voucher constituted an unlawful search and seizure under the Fourth Amendment.

Now that case, People of the State of NY v. Commons West, is slowing down other housing discrimination cases in the state, and spurring challenges from landlords that would see more voucher protections dismantled.

“They say justice deferred is justice denied, and so of course it’s having an effect on the conferral of justice because courts are putting things off,” said Armen Merjian, one of the lawyers suing a landlord for voucher discrimination.

By law, New York State and City prohibit landlords from discriminating against prospective renters just because they pay their rent using a voucher. With vouchers, tenants pay 30 percent of their income on rent and the government picks up the rest.

But some landlords discriminate nonetheless, apartment seekers allege.

Now two new cases may test if Commons West went far enough. If successful, the defense could nullify parts of New York City’s human rights law and expand the ruling to the city-funded CityFHEPS program as well. The cases are likely in limbo until the Court of Appeals reviews the Commons West decision in October, lawyers say.

In one case, Robert Williams, who had been living in a city homeless shelter for two and half years, said he inquired about using his CityFHEPS housing voucher at an apartment and was told, “No, we don’t accept,” by an agent of J.K. Management, according to court papers.

A representative for the firm, an office manager named Esther, denied the accusations, saying that they accept voucher holders.

Not all discrimination is so overt, according to legal advocates—who also say voucher discrimination is often a proxy to discriminate against low-income Black and Hispanic families, who make up a majority of Section 8 recipients in New York City.

In another case, Tashawna Fowler and Joyce Utley, who were seeking a home with a FHEPS and Section 8 voucher, claim in court papers that they were turned away by agents of Affordable Housing Real Estate Corp.

“Upon learning about the vouchers, the agents entirely and repeatedly ignored or ‘ghosted’ the plaintiffs,” wrote Merjian, a senior staff attorney at Housing Works, in their complaint.

While the Commons West ruling took on the state’s antidiscrimination law, these defenses argue that the city’s own source of income discrimination law should be thrown out on the same grounds.

Landlords in the two ongoing voucher discrimination cases now allege that other local programs, CityFHEPS and FHEPS vouchers, also violate their constitutional rights. CityFHEPS vouchers require an inspection before the tenant moves in, whereas Section 8 housing contracts require an inspection every year.

Lawyers for the Affordable Housing Real Estate Corp. argued in court papers that “in requiring participation in the Section 8 and FHEPS voucher programs, the challenged ordinance unconstitutionally impinges on the Fourth Amendment’s protection against warrantless searches.” Efforts to reach the company’s attorneys by press time were unsuccessful. 

Housing lawyers who spoke with City Limits said they were hopeful that the Court of Appeals would overturn Commons West—which they say was wrongfully decided—wiping the slate clean for these other cases.

“One of the problems with the [Commons West] decision was that it said that the state law was unconstitutional, and they kind of made a sweeping assessment, not accounting for the fact that there are different localities,” said Robert Desir, a staff attorney at the Legal Aid Society.

Lawyers at the New York City Law Department also intervened in Williams’ case, calling the attacks “meritless” in a memo to the court defending the city’s Human Rights Law.

Stephanie Rudolph, a lawyer with the Legal Aid Society, said it’s too soon to say if it will make landlords bolder.

“Most landlords are not willing to admit, ‘Yes, I’m discriminating, and I believe that it’s legal to do so now.’ We’re not at that point,” said Rudolph.

To some landlords, the voucher program is a boon. New York Apartment Association CEO Kenny Burgos testified to the City Council in June that property owners not wanting voucher holders was a “myth.”

“Our members house tens of thousands of New Yorkers with CityFHEPS, Section 8, and other assistance every single day. A voucher means a stable tenancy, a reliable payment, and a family that can stay in their home through a job loss, an illness, or a crisis,” he said.

Lawyers had hoped to actually expand voucher protections, where more subtle discrimination like ghosting can be difficult to enforce.

In Fowler and Utley’s case, the Fair Housing Justice Center conducted an investigation where they sent comparable renters to Affordable Housing Real Estate Corp. properties—one with a voucher and one without—and found that only the voucher holders got ghosted.

“There was no doubt about it that folks who were with vouchers were being treated in a horribly disparate manner,” said Merjian. 

A ruling for the voucher holders in the case could help establish that “ghosting” is a common tactic of discrimination.

New York is not the only state facing challenges to voucher protections in the wake of Commons West, with challenges in California, Virginia, and Missouri, Merjian said.

“There’s a nationwide trend,” said Merjian. “Folks who discriminate come up with new theories and new ways to try to defeat the law.”

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