Perspectives on Urstadt and Evictions
by George S. Locker

June 1, 1997

Dear Councilmember:

Cases that have interpreted the Urstadt Law reveal that the Urstadt Law does not preclude the City Council, pursuant to its police power, from enacting housing regulations, even if more stringent than state law, provided the measure goes beyond mere regulation of rents. See, attached outline of caselaw.

Bruno's threat to ensure that all rent regulations expire raises an immediate concern about massive evictions. Without rent controls, landlords would not be obliged to offer most present tenants a renewal lease.

Not only does the City Council have the authority to act in the face of Bruno's ultimatum, by statute the actual eviction itself is delegated to local government. Warrants of eviction must be executed by county sheriffs or city marshals -- local officials who are subject to local control.

In 1920, fearing the eviction of 100,000 tenants, the state legislature suspended all eviction proceedings for two years where the basis of the landlord's suit was expiration of the lease. This legislation could serve as a model for a more limited local law directed at sheriffs and marshals.

Notwithstanding Urstadt, the City Council is empowered to direct marshals and sheriffs not to execute warrants of eviction in cases where the lease of a (formerly) rent regulated tenant has expired because the rent laws have expired, and the tenant has otherwise adhered to the previous regulated terms.

This act on the part of the City Council would avert chaos and would break open the untenable situation NYC has been placed in. The debate could be refocused as follows:

1. Given the ultimatum by Bruno to either phase out or end all rent regulations on June 15, local elected officials should issue, or at least call for, our own ultimatum: If rent regulations are allowed to lapse, we will draw on previous legislative and judicial precedent to direct marshals and sheriffs not to execute warrants of eviction in cases where the lease of a formerly rent regulated tenant has expired.

2. Stopping evictions has precedent in Albany (i.e. 1920-22), legislation which was upheld by the highest courts in the state and in the country.

3. Neutralizing Bruno's threat by threatening not to permit marshals to evict allows us to say (with the Cardinal): "Now let's study the issues, have a referendum, etc."

4. We know from the 1971-74 vacancy decontrol experience that400,000 units were vacated in a three year period. Given this huge change, we know that Pataki's so-called compromise represents a vision of a city that we fundamentally reject.

5. A challenger can make the point that despite his touted image as a "tough guy", Giuliani will not stand up for New Yorkers and face down fellow Republicans D'Amato/Pataki/Bruno. In reality he accounts to the same real estate interests.

6. Current rent regulations do not apply to and therefore do not prevent construction of new housing.

7. Previous real-estate speculation culminated in the S&L bankruptcies that have harmed the economy and raided 1 trillion dollars from needed social programs, including housing construction. Rent deregulation would (a) siphon money away from all other city businesses and (b) with the promise of ever higher rents, speculation in existing real estate would draw money away from real productive investments in the economy of the city.

8. Staying within the existing terms of the debate as presently framed will only insure two inevitable but avoidable injuries to the city: One, the end or major erosion of rent regulations; the other, the reelection of Rudolph Giuliani.

Please raise this approach with your colleagues and with tenant leaders and feel free to call.

Very truly yours,
George S. Locker

GSL:at
att.

May 12, 1997
Notwithstanding The Urstadt Law,
The City Council Is Empowered to
Pass Laws Regulating Housing

The Applicability of the Urstadt Law is Limited to Rents

1. Purpose of Urstadt (which accompanied passage of 1971 Vacancy Decontrol Law, that itself had legislative findings): "By removing the threat of stricter controls, thereby encouraging owner investment in the maintenance and improvement of existing housing and stemming the tide of abandonment of sound buildings". 241 East 22nd Corp. v. Ramos, 33 NY 2d 134, 142 (1973). Expiration of current laws is accompanied by no legislative finding or purpose.

2. "A reading of the Governor's memorandum at the time of the enactment of the Urstadt provisions, shows that the intent of Chapter 372 was to prevent more stringent economic restrictions from being imposed on owners and not just any restrictions" ... Statutes governing rent regulations ... were not intended to restrict a municipality in adopting public safety legislation or regulations for purposes other than rent regulations even though more stringent". Rose Towers Realty v. Aviv, 121 Misc 2d 1016, 1022 (Civ Ct, Queens Co, 1983).

City Council May Pass Housing Regulations
for Purposes Other Than Rent Regulation

3. The provisions of the Urstadt Law "were not intended to restrict a municipality in adopting public safety legislation or regulations for purposes other than rent regulation even though more stringent than those in effect prior to 1971, and even though they may effect rent controlled housing". Westchester Realty Corp. v. Board Of Health, City of New York, 91 Misc 2d 56 (S Ct NY Co, 1977). Mass evictions are a threat to public safety.

City Council May Exercise Police Power and Regulate Housing

4. "A municipality was not restricted by the Urstadt Law from adopting public safety regulations even though they may have effected rent controlled housing". Corlear Gardens Housing Co. v. Ramos, 126 Misc 2d 416, 419 (S Ct Bx Co, 1984). (prohibiting eviction of tenants with pets).

5. Law passed by the City Council in furtherance of the police power (Local Law 22 re: preservation of SRO units) not

violative of the Urstadt Law because part of a broader scheme than just regulation of rent. Seawall Associates v. City of New York, 134 Misc 2d 187, 201 (S Ct NY Co. 1986).

6. "If the Council enacts special laws in furtherance of its police power which conflict with other special laws they are not acting beyond their constitutional authority". Seawall Associates, supra.

Urstadt Does Not Apply To Local Laws and Ordinances

7. "We conclude, in the absence of persuasive evidence of legislative intent to the contrary, that the authority of approval of the State Commissioner of Housing and Community Renewal is limited to local rules and regulations and does not extend to local laws or ordinances". Mayer v. City of New York, 46 NY 2d 139, 152 (1978).

8. Statutes are enacted by the state legislature; local laws by local governments and rules and regulations are promulgated pursuant thereto; ordinances are passed by cities. McKinney's, Statutes, chapter 8, §351.

NYC Has Final Authority Over Execution of Evictions

9. The right to bring an eviction proceeding is not sacrosanct.

10. In 1920, facing the threat of 100,000 expiring leases and threats of 100,000 evictions in NYC, the State legislature in effect imposed leases by staying and suspending all eviction proceedings for two years brought by landlords who simply refused to renew leases at reasonable rents. See, e.g., Durham Realty v. La Fetra, 230 NY 429; New York Legislative Document No. 144 dated September 20, 1920.

11. The judicial proceedings are subject to state control but the evictions themselves are local matters.

12. Evictions must be executed by a sheriff or marshall. "Upon rendering a final judgment of possession for petitioner, the court shall issue a warrant directed to the sheriff of the county or to any constable or marshall of the city in which the property ... is situated". RPAPL §749.

13. Sheriffs and marshals can be directed, as a matter of local law, not to execute any warrant of eviction where the underlying proceeding is based upon expiration of the tenant's lease by reason of the expiration of the Rent Regulations.

14. Thus, the state does not have the last word on the rent regulation debate.

MILLIONS OF EVICTIONS

Beginning June 16th, after the New York Senate permits the state's various rent regulations to expire, landlords will begin the process of evicting 2 to 3 million New Yorkers from their homes. While the impact of deregulation is generally presented in terms of sharp rent increases, the unspoken result will be evictions, mass evictions.

When rent regulations cease to exist, the occupants of 1.2 million apartments will lose their right to a renewal lease. When a tenant's current lease term comes to an end, be it in a month or in two years, the landlord will be under no obligation even to negotiate with the tenant, who will have no legal right to remain in the apartment.

As each lease expires, every formerly rent regulated apartment will be made available to the highest bidder and rent increases will be extreme. But who will pay the inflated rents? Will people of ordinary means be able to outbid all takers in order to stay where they are? In the chaos and frenzy of the deregulated rental environment, only the wealthy will be able to afford the going rate for their own home; most tenants will end up moving from their present home to smaller, more distant apartments.

Once, our elected officials were able to rise to the occasion and enact protective measures when mass evictions were threatened. Following World War I, NYC had a severe housing shortage and widespread rent gouging that had begun to affect even the moderately well-to-do. The Mayor appointed a Committee on Rent Profiteering. More significantly, the Joint Legislative Committee on Housing declared that "never in the history of the city of New York have there been so many evictions".

By September of 1920, in an extraordinary session of the state Legislature, Governor Al Smith warned that, notwithstanding earlier remedial legislation that had prohibited unjust and unreasonable rents, almost 100,000 eviction proceedings were pending in the NYC Municipal Courts. "The housing shortage leaves citizens with nowhere to turn... families have been broken up and dispersed generally throughout the city or huddled into the homes of relatives". Because the landlords' power to force tenants to vacate at the end of the lease term was unregulated, "families have been shifted from place to place without rhyme or reason and the unscrupulous and selfish have profited immensely by it".

Taking action to forestall the evictions, the state legislature suspended the landlords' right to commence summary and plenary holdover proceedings where the landlord sought the tenant's eviction because the lease had expired.

In the words of the Governor, words worth speaking today, "Landlords have been given the special privilege of summary proceedings in order to regain immediate possession of their premises. This privilege does not belong to any landlord as a matter of inherent right".

After the abolition of rent regulations this June, the landlord's eviction privilege will become the City's nightmare.

At the end of June, the 70,000 Rent Control units that are without a written lease agreement will receive a notice from their landlords that their tenancy has terminated. Thereafter, eviction proceedings will be brought in Housing Court.

In the absence of rent regulations, these Rent Control tenants will lack any statutory right to remain in their apartment and any defense to their landlord's claim for possession. In a matter of weeks, experienced landlord's counsel will be able to move each summary holdover proceeding inexorably toward a judgment of possession and the issuance of a warrant of eviction.

By Labor Day, we could witness the actual eviction of the entire Rent Control population.

In addition, starting in July, there will be 45,000 new eviction proceedings commenced each month as the written leases affecting Rent Stabilized units expire and are not renewed. Within two years, 2 - 3 million people will have been evicted or forced to move by threat of eviction.

Proponents of deregulation today know that mass evictions have been successfully hidden from view and public concern and that, in isolation, tenant resistance is ineffective. A New York state investigative committee concluded that 400,000 New York City households were improperly evicted in the period between the enactment of Vacancy Decontrol in 1971 and the reimposition of controls by the Emergency Tenants Protection Act of 1974.

This time, the landlords must not prevail, for the life of the City is at stake. Without mandatory lease renewals, neighborhoods will have no permanence and tenants' rights will vanish. Fear will govern and living conditions will deteriorate.

Responsible people must not permit Albany to sanction the largest mass eviction in the history of New York.

New York, New York
April 20, 1997

An End to Evictions
George S. Locker

Introduction

The threat to eliminate rent controls should immediately focus our attention on the key feature of the landlord/tenant relationship that is more significant to us even than the condition of our apartment or the amount of our rent. We can live without hot water (as many do) and we can take in a roommate, but whether we seek repairs or sublet a room it presumes that we are entitled to be where we are in the first place.

Rent Regulations Protect Tenancies

In its truest sense, the end of rent controls means that every protected tenant will face eviction when their current rental term expires, because your landlord will be under no obligation to renew the lease. The primary issue is evictions, not rent levels.

The boldness with which mass evictions can be proposed by government leaders in 1997 has its tradition in centuries of laws that gave overwhelmingly preferential treatment to owners of real property over any other category of creditor. If this historic legacy is understood, it will become easier to undo it.

Landlord Self-Help

In the agricultural setting, rent was a portion of the food output of the land. A tenant farmer who did not or could not pay the rent could be removed by the landlord, who had the legal right to exercise self-help, re-enter the premises, with force if necessary, and take possession.

Moreover, the aggrieved landlord was permitted to seize all of the personal property on the premises and to sell it to satisfy rent owed, a process known as distress for rent.

Echoing the lament of today's landlords, it was argued that without distress for rent, "it would tend to check the growth and prosperity of our cities if the law did not afford the landlords a speedy and effectual security for their rents, against the negligence, extravagance, and frauds of tenants".

The landlords understood that without the power of distress, landlords would be "driven in every case to the slow process of a suit at law for their rent" or the intricate action in ejectment.

Among all creditors, the right to reenter without need of court process and to seize and sell the tenant's personal property as distress for rent, were privileges that were uniquely enjoyed by landlords. The noted legal commentator Blackstone observed that the landlord's right of self-help was one of the few instances where a person was entitled to take the law into his own hands.

Shays' Rebellion

In post-Revolutionary America, patriots returning to their farms faced rampant inflation, worthless paper money, personal debt, high taxes, foreclosure and eviction. In 1786, in Berkshire farm country not far from today's Tanglewood Music Festival, Daniel Shays organized his neighbors into a campaign to resist evictions and to close the courts. Shays' Rebellion and its call for public ownership of property shook the young government. It is said that George Washington, one of the largest landowners of his day, was so alarmed by our nation's first rent strike that he volunteered to personally hunt Shay down. A state militia saved him the trouble.

Distress and Re-entry Attacked

Entering the 19th Century, the urban tenant population began to grow more rapidly. Landlords found that their traditional rent collection remedies of self-help through forcible reentry and distress for rent were becoming less effective.

The risks associated with violent evictions were less acceptable in the city environment.

Distress for rent was increasingly viewed as barbaric because it left a family with nothing but the shirts on their back and the family Bible.

Because the home also was a worksite, landlords routinely seized craftsman's tools and other materials that did not belong to the tenant but to entrepreneurs and businessmen. This rising group did not appreciate their unexpected loss to the landlords.

The legislators struggled to find a practical way to limit the landlord's right of distress without eliminating the remedy altogether.

Introduction of Summary Proceedings

In 1820, responding to the landlords' demand for an effective means of collecting rent, the state of New York enacted the first summary eviction proceeding and in so doing entered into the eviction business, where it has been ever since.

This special proceeding, as it is known today, provided landlords with a speedy way to obtain a judgment awarding possession of the realty and the right to force the eviction of the tenant with the help of a City marshall, sheriff, or peace officer.

With the enactment of the summary eviction proceeding in the era of the great migrations to NYC, it became easier to have someone removed from their home and put on the street than to sue and collect on a $100. debt.

The legal privilege given to landlords of a speedy eviction proceeding, "that they not be kept out of their estate by unprincipled, perverse and roguish tenants", in the words of one commentator of the time, was a key element in the transformation of urban housing, always in short supply, into the only commodity capable of producing a high rate of return and appreciate in value, regardless of its age or condition, over an unlimited lifetime.

Anti-Rent Wars

From 1836-1850, tenant farmers in the upstate New York counties where Joseph Bruno now holds court, waged the often violent Anti-Rent Wars. The anti-Renters, as they were called, protested and resisted the right of their patroon landlords to reenter and take possession of their property and all improvements upon the slightest default, the imposition of so-called quarter sales, or taxes on subleasing, distress for rent, and other onerous lease terms imposed by the descendants of Stephen van Rensselaer. Landlords had the legal right, for example, to follow and seize a delinquent tenant's property even after it had left the household and to break open any house, barn, or other place to which the goods had been taken.

Illustrating the power of political alliances, the anti-renters, joined by their urban cousins, crusaded against distress for rent by electing their candidate for governor. In 1848, quarter sales were forbidden, heavy taxes were levied on long-term leases, distress for rent was abolished, forcible (as opposed to peaceable) entry and detainer was forbidden and proceedings by complainants in unlawful detainer were simplified.

The anti-landlord public sentiment even was incorporated into amendments to the state Constitution.

Thus, by the mid 19th century and the abolition of distress and forcible re-entry, the summary eviction proceeding, a creature of the legislature, had become the landlord's primary tool in the business of rent collection.

The Crisis of 1920

In the period following World War I, NYC, among a number of American cities, faced severe housing shortages and widespread rent gouging that had begun to affect even the moderately well-to-do.

How the government responded, or was compelled to respond, when faced with a housing crisis far less severe than our own, is a lesson for all of us today.

The Mayor appointed a Committee on Rent Profiteering.

The Governor appointed a Joint Legislative Committee on Housing, which declared in its report that "the most flagrant and the most acute form of extortion and one which is almost inescapable is rent profiteering. And as for evictions, never in the history of the city of New York have there been so many evictions".

On April, 1920, the state Legislature proclaimed a public emergency due to "unjust, unreasonable and oppressive agreements for the payment of rent endangering the public welfare, health and morals".

In effect enacting our City's first rent control, in all proceedings for non-payment of rent, tenants were permitted to plead as an affirmative defense that the rent sought was "unjust and unreasonable".

Moreover, the failure to provide building services was made a criminal misdemeanor.

By September of 1920, in an extraordinary session of the state Legislature, Governor Smith warned that, notwithstanding the earlier legislation, almost 100,000 eviction proceedings were pending in the NYC Municipal Courts. "The housing shortage leaves citizens with nowhere to turn... families have been broken up and dispersed generally throughout the city ... without rhyme or reason and the unscrupulous and selfish have profited immensely by it".

Taking action to forestall the evictions, the state legislature suspended all summary and plenary holdover proceedings for two years where the basis of the suit was expiration of the lease.

In the words of the governor, words that are more appropriate now than ever, "Landlords have been given the special privilege of summary proceedings in order to regain immediate possession of their premises. This privilege does not belong to any landlord as a matter of inherent right".

The 1920 Rent Laws were considered to have been generally successful in preventing evictions but having failed to stop exorbitant increases in rent, which is no surprise.

Mass Evictions Today

If rent regulations are eliminated in June, we face the imminent eviction of perhaps a million rent regulated tenants. Let us remember that mass evictions have happened before.

It is reported that 400,000 households were evicted in the period between the enactment of vacancy decontrol in 1971 and the reimposition of controls by the Emergency Tenants Protection Act of 1974.

In the year 1996 alone, 114,000 warrants of eviction were issued in New York City and 30 - 50,000 lawful evictions are known to have been conducted by City marshals and sheriffs, often affecting entire families.

It is time for the evictions to end.

Conclusion

Before its demise, the landlord's right to distress for rent was regarded as the "last lingering relic of tyrannical power... sprung from a barbarous age".

In 1997, it is time that we fight to legislate evictions out of existence by removing the remedy of the summary proceeding that too has sprung from a barbarous age.

New York, New York
March 29, 1997