The Office of the New York State Attorney General filed suit last fall against the Ithaca Renting Company, a local landlord with numerous commercial properties and apartment buildings, saying its refusal to rent apartments to would-be tenants using Section 8 housing vouchers for payment was in violation of state housing law that prohibits landlords from discriminating against tenants on the basis of income discrimination, or the source of funds to pay their rent.
Now, a New York State Supreme Court judge has ruled for Ithaca Renting, agreeing with the local business’s position that the Section 8 program’s inspection requirement was a violation of the Constitution’s protection against searches.
Related: Attorney General sues Ithaca Renting landlord Jason Fane for violating low-income housing law
In his ruling on June 27th, Hon. Mark G. Masler says the Attorney General’s argument “is fundamentally flawed for the simple reason that, as set forth above, a landlord cannot accept a Section 8 housing voucher as payment for rent without agreeing to participate in Section 8, which, in turn, requires that the landlord authorize warrantless searches.”
Judge Masler’s ruling points out that the Housing Assistance Payment contract entered into by landlords participating in Section 8 “requires a participating landlord to consent to inspection of ‘the contract unit and premisesat such times as the PHA determines necessary,’ and to provide the PHA, the Department of Housing and Urban Development, and the Comptroller General of the United States ‘full and free access to the contract unit and the premises, and to all accounts and other records of the owner that are relevant to the HAP contract,’ which includes access to “any computers, equipment or facilities containing such records.'” [Italics were in Judge Masler’s published ruling.]
Ithaca Renting had contended “that the source of income antidiscrimination statute violates a property owner’s Fourth Amendment rights by giving the owner no choice but to consent to these inspections by entering into a HAP contract.”
As written, the requirement that landlords consent to inspection “at such times as the PHA determines necessary” could conflict with New York State law prohibiting a landlord from entering a tenant’s apartment without “reasonable notice” except in an emergency, and the ruling could also call into question the inspection requirement of new short-term rental laws being enacted or considered in some local communities.
“Today’s decision by Justice Masler striking down as unconstitutional the 2019 amendment to the Landlord Tenant law (which compelled participation by landlords statewide in the voluntary federal section 8 program) is a victory for the rights of small business owners and the civil liberties of every citizen,” Ithaca Renting’s Nathan M. Lyman told 14850 Today in a statement that afternoon. “Ithaca Renting Company is thankful that the Court studiously considered our arguments and found that they were correct.”
”More than forty years ago New York’s highest court wrote in Sokolov v. Village of Freeport that ‘It is beyond the power of the State to condition an owner’s ability to engage his property in the business of residential rental upon his forced consent to forego certain rights guaranteed to him under the Constitution,’” Ithaca Renting told us last fall in a statement sent by Curtis Johnson of Rochester law firm Bond, Schoeneck & King PLLC.
Under theSokolov v. Village of Freeport decision from the Court of Appeals of the State of New York, the court ruled that the village could not require landlords to have properties inspected before rental, saying the village ordinance effectively “requires a warrantless inspection of residential rental property.”
“Section 8 is a voluntary federal program,” Ithaca Renting told us last fall. “Participation in Section 8 requires a property owner to waive a number of its Constitutional rights. The State, in filing this proceeding, seeks to force Ithaca Renting to give up its rights guaranteed under the Constitution, which the Court of Appeals has previously said is beyond the power of the State.”
“For seniors, people with disabilities, and our lowest-income community members, Section 8 provides access to safe and secure housing,” New York State Senator Lea Webb told 14850 Today. “This is a disappointing decision by our Supreme Court, which will harm the most vulnerable and marginalized members of our community. It is unconscionable to deny housing to individuals based on their source of income. I am grateful to Attorney General James for standing up for what is right.”
“This decision is eerily similar to the national Supreme Court’s attacks on Affirmative Action and LGBTQ rights: right-wing courts are aggressively targeting Black Americans and other minorities across the country, overturning democratically enacted anti-discrimination laws,” the Ithaca Tenants Union said in a statement. “With this ruling, Judge Masler has decreed that landlords’ freedom to discriminate matters more than tenants’ freedom to live. He is dead wrong. We encourage Attorney General Letitia James to appeal this ruling, and to use every avenue possible to protect New Yorkers’ hard-fought victories for racial and economic justice.”
“Apartments must get a certificate of occupancy before they are rented,” New York State Assemblymember Anna Kelles told 14850 Today, suggesting that the federal inspection requirement for participants in Section 8 is no different. “That is the nature of the overall regulation on the industry.”
“I’m deeply disappointed that Jason Fane and his team would invest so much money and effort to look for a technical loophole to avoid being a part of creating equitable access to housing in our community,” Dr. Kelles added.
“Judge Masler was thorough in his writing on the first of five defenses we raised, finding that he did not have to reach the others,” Mr. Lyman commented to 14850 Today. “It is a rare and significant event when a court finds a law unconstitutional and also dismisses a lawsuit at the very beginning.”
The Office of the Attorney General did not respond to multiple requests for comment over the course of several days.
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