The Real Estate Board of New York to The Committee of Civil and Human Rights and the Committee on General Welfare of the New York City Council Concerning Pre-considered Items and Intros 146, 1020, 2018, 1339 and 2047


Vice President Policy & Planning

September 14, 2020

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The Real Estate Board of New York (REBNY) is the City’s leading real estate trade association representing commercial, residential and institutional property owners, builders, managers, investors, brokers, salespeople and other organizations and individuals active in New York City real estate. Thank you for the opportunity to provide feedback on the issues of rental assistance and discrimination.

REBNY strongly supports efforts to expand access to rental assistance programs. This includes the Obama Administration’s rule to “Affirmatively Further Fair Housing,” which encourages local municipalities to take into account how their land use practices can perpetuate patterns of segregation and to devise an action plan to do better. REBNY also continues to support the expansion of the Right to Counsel program, the City’s mandatory inclusionary housing program, expanded use and eligibility criteria for vouchers and better enforcement of bad actors to address systemic patterns of segregation, housing access and discriminatory practices such as against sources of income.

REBNY also takes seriously its role in educating brokers on their responsibilities under the Fair Housing Act, state and city licensing laws. There is zero tolerance for fair housing violations in the REBNY Residential Listing Service.

Of course, there is more work to be done. REBNY looks to continued discussion and engagement on proactive, data based solutions that will expand access to housing for all New Yorkers.

The data is clear that expanding access to vouchers is an effective tool to help integrate neighborhoods of opportunity and provide financial security for tenants in neighborhoods experiencing significant change and transition. Furthermore, providing housing support vouchers to people on the verge of homelessness is a prudent use of taxpayer money. Research from both the Center on Budget and Policy Priorities and the National Bureau of Economic Research document that it is more cost-effective for government intervention to keep or place someone in their home than it is to provide temporary shelter. Stabilizing an individual or household prior to experiencing housing instability, the trauma of an undeserved eviction process and entering the shelter system will always be less expensive than providing legal services at a hearing, paying for emergency hotel rooms and dealing with the long-term health and social impacts of losing one’s home. More than that - It is simply the right thing to do.

Moreover, while these issues are important for all New Yorkers facing housing instability, they are particularly acute in communities of color and for people experiencing mental health challenges. This is the case because of the deep unjust impact of the justice system on communities of color and people experiencing mental health challenges. Fair housing guidance also recognizes the disparate impact to communities of color when there are blanket rules against housing anyone with a criminal record.

For this reason, REBNY appreciates the efforts being made by the City Council to expand access to stable housing.

The principle criteria for identifying if a tenant is qualified for housing should be their ability to pay without regard to the source of income from which the tenant pays their rent. But the ability to pay is not the only criteria an owner is obligated to take into consideration. An owner has an equal obligation to tenants already in the building to provide a safe, healthy and livable environment – the warrant of habitability. Lease terms speak to the obligations of both parties to not engage in behavior that is dangerous, hazardous or detrimental to life, health or safety. As currently framed, unfortunately, Intro 2047 does not adequately address the rights of other tenants nor even the owner to appropriately balance the warrant of habitability with greater access to housing.

Indeed, achieving this balance is important and consistent with the Fair Housing Act, which only prohibits arbitrary and overly broad bans related to criminal history. According to the U.S. Department of Housing and Urban Development (HUD), "policies that exclude persons based on criminal history must be tailored to serve the housing provider’s substantial, legitimate, nondiscriminatory interest and take into consideration such factors as the type of the crime and the length of the time since conviction."

With the need to strike this balance in mind, Intro 2047 should be revised to align with this guidance and allow for consideration of prior convictions to the extent that such information could help a housing provider make informed decisions on behalf of the larger tenant community.

Fair chance housing statutes in Oakland, Berkeley, Detroit, Seattle and Chicago allow for screening of these types of convictions as part of the application process, and provide redress for potential discrimination. In particular, the Detroit Fair Chance Housing Ordinance strikes a reasonable balance between the rights of persons with a criminal history and property owners’ requirement to provide safe housing to tenants. The law states that owners may only investigate the applicant’s criminal history if they have determined the tenant is qualified to rent under all other phases and if the applicant has a criminal record, they may be denied housing only for crimes relevant to the safety of other people or property.

Lastly, by effectively barring any consideration of criminal history instead of delineating into specific types of criminal convictions may have the unintended consequence of not diminishing discrimination at all. A report by the Pew Charitable Trust indicated that broad legislation that aims to target criminal history discrimination could exacerbate the racist discrimination they intend to fight against. Additionally, a study conducted by the University of Washington on several new ordinances in Seattle found owners adopted stricter criteria for rental housing, not less.

REBNY does not propose doing nothing. Coupled with implicit bias training and other education tools, if the Council modifies this bill to explicitly define what criminal conviction history can or cannot be considered by property owners’ and for those convictions that can be considered, to allow for a set time period to remove that history from consideration, mirroring the success of the Detroit law, it will better achieve the anti-discrimination goals of other successful Fair Chance laws.

Doing such will also support owners’ legal obligation to keep all tenants safe and will be consistent with existing Fair Housing law.

Additionally, in an effort to address the root cause of these discriminatory issues, government should consider solutions that allow individuals who have been convicted of certain criminal history to have their records sealed and expunged, so that property owners are not able to view any criminal history in relation to minor and non-violent charges.

Thank you for the consideration of these points.

Download the full testimony for bill-specific feedback.