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NYC Tenants Rights Advocates Score Another Victory

Residents of a South Bronx neighborhood slated for rezoning march in support of policies to protect existing residents, including the Certificate of No Harassment Program. (Photo by Oscar Perry Abello)

For the last few years, at community meetings and town hall gatherings with public officials all over NYC, residents and tenant advocates have been calling to expand a very specific-sounding measure that they believe would be vital for protecting them against displacement in the face of rising rents and city-sponsored rezonings to allow for new construction of higher-density housing. The measure is known as the Certificate of No Harassment (CONH) program. Now, they’re finally on the verge of getting that expansion.

As Politico New York’s Sally Goldenberg reports, after a year of negotiations and discussions among a working group that combined tenant advocates, nonprofit community development groups, and real estate industry representatives, NYC Mayor Bill De Blasio and City Council have reached a deal to pass a bill to strategically expand the city’s CONH Program, which currently only applies to a limited area on the west side of Manhattan, one neighborhood in Brooklyn, and single-resident occupancy (SRO) buildings throughout the city.

If passed, the bill would add to a string of victories in the past year for low-income residents and tenant advocates in NYC, including city support for community land trusts and the first citywide community land trust, and establishment of a right to counsel for tenants in housing court.

Groups like the Association for Neighborhood and Housing Development, a citywide network of nonprofit affordable housing developers and tenant groups, have been pushing to expand the CONH Program in response to what they see as a pattern of tenant harassment related to the city’s hot real estate market.

As Ben Adler reported for Next City in June, over the last few decades, developers have successfully lobbied for various loopholes that make it possible to acquire rent-stabilized buildings and gradually flip them into market-rate buildings. Every time a new tenant moves into a rent-stabilized unit, the landlord may raise the rent up to 20 percent, and once the rent hits a certain annually-adjusted deregulation threshold (currently $2,700) in NYC, the unit is no longer rent-stabilized and the landlord can charge market-rate rent. That gives developers a massive incentive to acquire rent-stabilized buildings and harass multiple waves of tenants until every unit hits the threshold. A rent-stabilized building can be bought for a low price, gradually deregulated, then renovated or demolished and turned into market-rate housing.

According to state records, 8,049 units in NYC hit the deregulation threshold in 2015, up 29 percent from the prior year. Since 1994, when the deregulation threshold first applied, at least 147,457 units in NYC have hit the deregulation threshold and lost rent-stabilized status, 71 percent of which have been located in Manhattan.

The CONH program works by requiring developers to prove to the city they have not been harassing existing tenants prior to seeking permits for renovating or demolishing buildings covered by the program. The existing CONH program requires certification that no tenant harassment has occurred in the three years prior to permit application; based on working group findings, the new bill would extend that scope back to five years.

Set up as a three-year pilot program with an option to renew or expand later, the new bill grants the city the authority to designate community groups to conduct interviews with residents to determine whether tenant harassment has taken place. However, as under the current program, the Department of Housing and Preservation and Development (HPD) would have the power to make a final determination of tenant harassment, which would initiate a city hearing to deny a CONH. Developers would still have the right to appeal the hearing decision if denied a CONH.

The bill also gives developers an option to move forward with renovations or demolition after being denied a CONH by guaranteeing 20 percent (of a new building) or 25 percent (if renovation of an existing building) of the residential floor area to be set aside for permanent affordable housing, at an average of 50 percent AMI, with no public subsidies, in addition to any other affordable housing requirements related to zoning or tax subsidies.

The existing CONH program in Hell’s Kitchen has been in place since 1974. Under the new bill, the CONH program would cover buildings citywide under certain conditions: buildings that have already had a court finding or state housing agency finding that tenant harassment has taken place; buildings where a full-vacate order has been issued (moving all tenants out due to unsafe building conditions); and any building that is part of the city’s Alternative Enforcement Program, which identifies the 200 most distressed buildings in the city each year.

Further, and perhaps even more critical, the new bill would also expand the CONH program to all buildings within the 11 neighborhoods the city has slated for rezoning to allow for new construction of higher-density buildings as part of the mayor’s ten-year housing plan. If the city picks another neighborhood to rezone, it would be added to the CONH program as well. Tenant advocates believe much of the harassment they’ve faced has been rooted in speculation around the potential for new construction in rezoned areas.

“Real estate markets move on rumors, as soon as there are whispers of an upzoning, the speculation begins,” NYC Councilmember Mark Levine told me last fall, in a story about the city’s increased spending on legal assistance for tenants in housing court.

By providing more lawyers for tenants, who typically cannot afford a lawyer if they are taken to housing court, the city found that the number of evictions fell even though the number of eviction filings did not. That experience lent credence to the notion that developers and landlords were using frivolous or fraudulent eviction proceedings as a form of tenant harassment. But there remain many more tactics for harassing tenants to vacate units, and still plenty of incentive for developers to do so.

As City Limits’ Abigail Savitch-Lew has reported, multiple rezoning proposals from the city have faced stiff opposition from communities where residents have, among other demands, pushed the city to expand its CONH program citywide before approving any rezonings, including East Harlem and parts of the South Bronx. Both of those neighborhoods would be part of the CONH expansion.

About 16 percent of East Harlem’s housing stock consists of rent-stabilized units, considered a bulwark against increased development already occurring in the area. The East Harlem Neighborhood Plan called for protection of all existing rent-regulated units in the neighborhood, including expansion of the existing CONH program. The vote for the bill to expand CONH is slated for Nov. 30, the same day that the City Council is expected to vote on approval of the city’s plan to rezone East Harlem.