CTRC Fact Sheet Index

TenantNet note: These Fact Sheets were published by CTRC in the mid-1990's. Some information will be out-of-date. As far as we know, there have been no updates to these fact sheets. While much of the information may still be valid, the reader should exercise caution.

CTRC Fact Sheets -- reproduced with permission.
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The Community Training Resource Center (CTRC) is a city-wide not-
for-profit organization that champions the rights of modest and
low-income tenants and promotes the preservation, improvement,
and expansion of affordable housing. CTRC provides training and
technical assistance for neighborhood housing groups, community
based organizations, legislative staffs and social service
providers.

CTRC produces fact sheets on tenants' rights, develops and
publishes research reports, and provides a written guide to New
York City government processes. CTRC advocates on budget policies
that affect housing and related services in low-income
neighborhoods. CTRC has led the campaign for the improvement and
expansion of the city's Housing Maintenance Code inspection and
enforcement services.
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CTRC Fact Sheet #009

HOW TO USE THE NEW YORK STATE
ANTI-RETALIATORY EVICTION LAW

In 1979, section 223b was added to the Real Property Law. This
section provides legal protection for tenants who have been
retaliated against by landlords after engaging in certain kinds
of "protected activities" . The statute is of special value to
two classes of tenants: (1) tenants in areas of the state without
rent control or rent stabilization laws. 2) tenants living in
areas that have rent regulatory laws but whose buildings or
apartments, for one reason or another, are exempt from those laws
(i.e., in NYC, buildings with less than six dwelling units,
buildings constructed post 1974, apartments rented after a
vacancy in coop or condo buildings, luxury deregulated
apartments, etc.).

Rent regulated tenants, as well, need protection from landlords
who sue to evict them on a so called "breach" of a substantial
clause in the lease, when, in reality, the landlord is acting in
retaliation against the tenants' efforts to enforce their legal
rights. But, the rent regulatory laws have provisions to protect
against this type of landlord abuse.

Section 223b applies to all rental residential premises in the
state except those in owner-occupied one-, two-, or three-unit
buildings.


Main Features

The statute has four principal features:

First, it contains a list of tenant activities which are to be
"protected" from landlord retaliation. These activities are:

     1.   A good faith complaint by or on behalf of the tenant to
          a governmental authority of a landlord's alleged
          violation of any law, regulation, code, ordinance, or
          any law which has as its objective the regulation of
          premises used for dwelling purposes.

     2.   Actions taken in good faith by or on behalf of the
          tenant to secure or enforce any rights under the lease
          or rental agreement, under the Warranty of Habitability
          Law, or under any local, state, or federal law which
          has as its objective the regulation of premises used
          for dwelling purposes.

     3.   The tenant's participation in the activities of a
          tenants' organization.

Second, it prohibits a landlord from taking certain actions in
retaliation for any of the protected activities.

Third, it creates a "rebuttable presumption" that the landlord is
acting in retaliation if he undertakes a proscribed action within
six months after the occurrence of any of certain events.

Fourth, the statute has important consequences if there is a
finding of retaliation; it provides an affirmative defense in an
eviction proceeding. Retaliation can also be the basis for a
civil suit by the tenant against the landlord, but the rebuttable
presumption will not apply.


Presumption

The "rebuttable presumption" clause is the most significant
feature of the law. It suggests that there is a motive of
retaliation on the part of the landlord if he attempts to evict
the tenant, substantially raise the rent, decrease services, or
refuse to renew an expiring lease within six months after the
tenant has undertaken any of the protected activities.

The effect of this clause is to place the burden of proof on the
landlord that his action is not retaliatory, rather than on the
tenant to prove that it is. In other words, the landlord must
satisfy the court that he has some other legitimate reason for
acting against the tenant. As a practical matter, complaints to
some governmental agency (NYS Division of Housing and Community
Renewal, municipal housing or code enforcement agencies,
municipal or county health departments, municipal or county
social service departments) provide the basis on which tenants
may then proceed to claim the benefits of presumption, and not on
complaints made only to landlords.

In order to obtain the benefit of the presumption, it is
necessary to allege an actual violation by the landlord. This
does not mean that an enforcement agency must have already
determined that the violation exists or occurred; the court may
decide that for itself.


Retaliation As A Defense

The law makes "retaliation" available as an affirmative defense
in an eviction proceeding, but the court must find that the
landlord is not only acting in retaliation, but must further find
that the landlord would not otherwise have commenced such action
or proceeding. This means that the defense applies only if the
court concludes that retaliation was the decisive or determining
factor leading to the landlord's bringing the eviction
proceeding.

The defense does not apply if the court concludes that the
landlord would have brought the proceeding regardless of the
retaliatory motive.


Affirmative Action By Tenant

The law establishes the right of a tenant to start a legal action
against a landlord based on an allegation of retaliation as well
as using retaliation as a defense against legal action started by
the landlord. However, the rebuttable presumption would not be
available if the tenant started the legal action. The statute
provides that an affirmative action by the tenant would be
governed by a one-year statute of limitations.


Lease Renewals

A tenant may assert the defense of retaliation if, after a tenant
has exercised a protected activity, the landlord refuses to renew
the lease, and then attempts to evict the tenant. But, if,
following the tenant's protected action, the landlord offers a
new lease for at least one year, the tenant may not raise the
retaliatory defense again at the end of that lease if the
landlord refuses to offer yet another renewal lease.

There is then, in effect, a limit of a one-year lease renewal,
after which the tenant can no longer use the retaliatory defense
if the landlord seeks his removal.


Altering Terms of Tenancy

Apart from barring evictions, the law prohibits the landlord from
"substantially altering" the terms of the tenancy in retaliation
for any of the protected activities. The usual ways the terms
might be altered would be to raise the rent, or decrease the
services. Whether an attempted alteration of the terms is
"substantial" is determined by the court, on the facts, in each
case, but the word is included so that relatively minor or
insignificant changes in services or rent will not be used to
invoke the statute.

Rent Increases

Because rent increases typically follow major repairs, an issue
under this statute is whether a rent increase can be considered
retaliatory. Simply showing that an increase was the result of
recovering the cost of repairs should not be an adequate excuse,
since the landlord is required to provide habitable, violation
free, premises to begin with.

Thus, this statute may provide an opportunity to challenge in
court the reasonableness of any rent increase demanded by a
landlord subsequent to a tenant complaint of code violations. It
is important that tenants in this situation not accept an
attempted increase in rent if they wish to challenge it as being
retaliatory.

In addition, although the rebuttable presumption is not available
to the tenant in a normal non-payment proceeding, it is available
if the non-payment proceeding involves an increase in rent to
which the tenant has not agreed.


Use

The Anti-retaliatory Eviction statute, unfortunately, has not had
a significant impact in defending tenants who exercise their
rights, against landlord abuse. As previously mentioned, rent
regulated tenants have in their laws, protective provisions
against retaliatory tactics, so this statute overlaps with
others.

The retaliatory defense, however, is raised by tenant attorneys
but it is a difficult defense, the rebuttable presumption
notwithstanding; "motive" and "intent" on the part of the
landlord can be a highly subjective and debatable matter.

                               ###

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These article are Copyright 1995 and 1996 by Community Training Resource
Center (CTRC) and reproduced by TenantNet. They may be freely
redistributed in their entirety provided they are reproduced exactly
as in the originals, including this copyright notice, the opening and
closing informational banners and any references to either CTRC
or TenantNet must be included.

These article are provided as is without any express or implied
warranty. While any information in these article is believed to be
correct at the time of writing, these articles are for educational
purposes only and do not purport to provide legal advice. If
you require legal advice, you should consult with a legal
practitioner licensed to practice in your jurisdiction.

Community Training Resource Center                (212)964-7200
47 Ann Street
New York, NY 10038

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