Housing Providers’ Obligations Under the NYC Fair Chance for Housing Act, by Jennifer E. Sherven, Esq., 12-19-2024

Landlords, real estate brokers, management companies, and other housing providers in New York City need to tread carefully when it comes to navigating the various laws that prohibit housing discrimination. Among them are the federal Fair Housing Act, the New York State Human Rights Law, and the New York City Human Rights Law, Title 8 of the administrative code of the City of New York (the “NYCHRL”).

Added to that list now is the Fair Chance for Housing Act (Intro 632-A), a local law that amends the NYCHRL and prohibits housing discrimination on the basis of criminal history, with limited exceptions. The legislation goes into effect January 1, 2025.

Among the new law’s provisions:

• Landlords, owners, brokers, managing agents, and other housing providers (collectively, “Housing Providers”) in New York City may not consider an applicant’s criminal record until after determining a housing applicant’s other qualifications.
• Housing Providers must notify the applicant that they are running the background check and provide the applicant with a copy of NYC’s fair chance housing notice. Housing Providers must also provide the applicant with any information or records they receive on the applicant’s criminal background.
• Housing Providers may still consider registered sex offenses, felony convictions within five years, and misdemeanor convictions within three years. The time frames begin at the date of release from incarceration or the date the sentence was imposed if there was no incarceration. However, Housing Providers must follow the law in doing so.
• The applicant has up to 5 business days after receiving the background check to follow up with the Housing Provider to correct any inaccuracies or present any supplemental information, during which time the Housing Provider cannot revoke the housing offer.
• If an applicant is rejected because of the applicant’s criminal history, the Housing Provider must provide a written explanation to the applicant concerning why the rejection was due to a legitimate business interest and how any information submitted in support of the applicant’s tenancy was considered.
• This law does not apply where federal, state, or local laws, including laws protecting victims of domestic violence, sex offenses, or stalking, require or permit exclusion based on criminal history.
• This law also does not apply to two-family owner-occupied housing or rooms in owner-occupied housing.
• This law does not restrict Housing Providers’ ability to review financial and credit information, check references, and conduct interviews with prospective tenants.
• Housing Providers that do not comply could face litigation, as well as be required to “change their policies, provide compensation, or pay a penalty.”

Separate from this new law, Housing Providers have existing obligations under the NYCHRL. The NYCHRL prohibits discrimination in housing based on actual or perceived race, creed, color, national origin, gender, age, disability, sexual orientation, uniformed service, marital status, partnership status, alienage or citizenship status of any person or group of persons, or because of any lawful source of income of such person or persons, or because children are, may be, or would be residing with such person or persons. The NYCHRL also prohibits retaliation against someone who files a complaint under the NYC Human Rights Law. The NYCHRL prohibits each of the housing-related activities listed below when the decision is based upon an applicant’s or tenant’s membership in any of the protected classes detailed above:

• Refuse to sell, rent, or lease housing.
• Misrepresent the availability of housing.
• Set different terms, conditions, or privileges for the sale, rental, or lease of housing.
• Provide different housing services or facilities.
• Post discriminatory advertising or marketing that indicates a preference, limitation, or discrimination based on a protected class.
• Refuse to provide a reasonable accommodation for a person with a disability.
• Steer a potential homebuyer or renter to, or away from, an area.
• Pressure, for profit, homeowners to sell by exploiting demographic changes (blockbusting).
• Threaten, coerce, or intimidate individuals because they exercise their fair housing rights or assist others in doing so.
• Refuse to make a mortgage loan to a qualified applicant.
• Refuse to provide information regarding loans.
• Impose different terms or conditions on a loan or credit card.
• Discriminate in appraising properties.
• Deny conventional mortgages in certain communities (redlining).

Given the various laws that NYC Housing Providers must comply with, they should consider:

• Becoming familiar with applicable federal, state, and local fair housing laws.
• Implementing policies and procedures compliant with applicable federal, state, and local fair housing laws.
• Training staff on policies and procedures and updates to fair housing laws.
• Being consistent in the manner in which they interact with residents and prospective residents.

If you need assistance complying with any applicable city, state, or federal laws, Kaufman Dolowich’s attorneys can help with:

• Defending Housing Providers in housing discrimination lawsuits and responding to federal, state, and local agency investigations.
• Assessing policies and practices to ensure compliance with the fair housing laws to mitigate the risk of complaints.
• Training staff concerning applicable federal, state, and local fair housing laws.
• Assisting with reasonable accommodation and modification requests.