The Appellate Division of the New York State Supreme Court, Third Department recently upheld a lower court decision finding that a provision of the state’s Human Rights Law mandating landlord participation in the federal Section 8 Housing Choice Voucher Program is unconstitutional. The ruling by the Third Department could have widespread implications throughout New York State and beyond, although the New York Attorney General’s office is expected to file a notice of appeal to the Court of Appeals – New York’s highest court.
The ruling came in the case of State of N.Y. v Commons West, LLC, an action by the New York State Attorney General (the State) brought against Ithaca Renting Company and its affiliates (the “landlord”) for refusing to rent to people who use Section 8 vouchers. The landlord claimed the requirement to participate in the program was a violation of the Fourth Amendment to the United States Constitution because the program’s requirements subject landlords to unreasonable searches.
The Third Department agreed, granting summary judgment on behalf of the Landlord and proclaiming the law requiring participation in the Section 8 voucher program as “facially unconstitutional to the extent that it makes it an unlawful discriminatory practice to refuse to rent or lease housing accommodations to any person, or group of persons, because their source of income includes Section 8 vouchers.”
For real estate owners and operators, this decision could materially affect leasing strategies, compliance policies, and lessen risk exposure related to Section 8 voucher participation. While participation in Section 8 is voluntary under federal law, there are dozens of municipalities throughout New York State plus at least a third of the nation’s states that have laws similar to New York’s Human Right’s Law.
The Third Department’s ruling is expected to be appealed, but landlords throughout the state and country will want to keep an eye on this.
Harris Beach Murtha’s Affordable Housing Industry Team will closely watch this case and other matters pertaining to affordable housing. If you have questions or concerns on these issues, please reach out to attorney Michael A. Discenza at (212) 912-3605 and mdiscenza@harrisbeachmurtha.com, or the Harris Beach attorney with whom you most frequently work.
This alert is not a substitute for advice of counsel on specific legal issues.
Harris Beach Murtha’s lawyers and consultants practice from offices throughout Connecticut in Bantam, Hartford, New Haven and Stamford; New York State in Albany, Binghamton, Buffalo, Ithaca, New York City, Niagara Falls, Rochester, Saratoga Springs, Syracuse, Long Island and White Plains; as well as in Boston, Massachusetts, and Newark, New Jersey.