The Real Estate Board of New York to The New York City Council Committee on Civil and Human Rights on Intro 0632-2022

Download the Testimony

REBNY thanks Chair Williams and the Civil and Human Rights Committee members for the chance to testify today on this important issue.

REBNY strongly supports the goal of ensuring access to quality housing for all New Yorkers. For this reason, REBNY has in recent years supported the expansion of the Right to Counsel program, the City’s mandatory inclusionary housing program, expanded use and eligibility for vouchers, and better enforcement to prevent source of income and other types of housing discrimination.

REBNY takes seriously its role in educating brokers on their responsibilities under the Fair Housing Act and 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 to eliminate housing discrimination.

Challenges accessing housing are particularly acute in communities of color and for people experiencing mental health challenges, partly because of the uneven impact of the justice system on these communities. 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 principal 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 must consider. 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 both parties' obligations to not engage in dangerous, hazardous, or detrimental behavior. As currently framed, Intro 632 does not address the rights of other tenants nor 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 crime and the length of the time since conviction." With the need to strike this balance in mind, Intro 632 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 the property owners’ requirement to provide safe housing to all tenants.

Looking more specifically at the Detroit model as an example, this ordinance prevents property owners from asking potential renters about their criminal background until the property owner has determined that the candidate is qualified to rent under all other phases of the application process. At that time, the property owners may investigate the applicant’s criminal history. If the applicant is found to have a criminal history, the only crimes that may be considered include violent crimes, crimes resulting in a lifetime registry on the sex offenders list, arson, and felonies committed within the past 10 years or resulting in imprisonment within the past five years.

If the property owner wants to deny an applicant based on their criminal history, the property owner must allow the applicant to provide evidence of rehabilitation that would show they are a suitable candidate despite their criminal record. Tenants also reserve the right to file a complaint with Detroit’s Department of Civil Rights, Inclusion and Opportunity if they feel they have been discriminated against under the ordinance.

As New York State already has a strong anti-discrimination policy for assessing justice-involved applicants for state-funded housing, this model could be adapted to apply to all housing. Existing State policy already references as an appropriate category for consideration those convictions or pending arrests that involve physical violence to persons or property, or affected the health, safety, and welfare of others. As a result, a template is available for succinct changes to be made to Intro 632.

Language that is too broad, such as what is proposed in Intro 632 currently, would have negative unintended consequences. However, REBNY also acknowledges that any solution should also consider the realities of what it would take to implement and the practical implications of what an apartment application entails. If requirements are too complicated to administer, this too could have unintended consequences. This is a challenging balance to strike.

With this said, REBNY does not propose a lack of action. The Council can modify this bill to explicitly define what criminal conviction history can or cannot be considered by property owners. For those convictions that can be considered, the law could allow for a set time to remove that history from consideration, mirroring the success of the Detroit law. When coupled with implicit bias training and other educational tools, these measures will better achieve the anti-discrimination goals of other successful Fair Chance laws.

This will also support owners’ legal obligation to keep all tenants safe and will be consistent with existing Fair Housing law. 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 more easily sealed and expunged, so that property owners are not able to view any criminal history of minor and nonviolent charges.

In addition, REBNY feels strongly that language in the bill to indemnify property owners, managers, brokers, and agents against liability needs to be strengthened. This is important as the obligation for owners and managers to abide by the warrant of habitability must not be infringed upon, and no potential local law should undermine that warrant. In addition, brokers and agents often facilitate the most complicated processes relative to housing access and are held to a rightfully high standard in existing law to ensure that an applicant is not being discriminated against. This is something that REBNY brokerage and agent members take very seriously. Ensuring that indemnification language also applies to these professionals will ensure that any unintended consequences, particularly created by the early implementation of this potential local law, will not create a liability for those who often are on the front lines of housing access.

Finally, most of the housing in New York City is rental housing. While housing discrimination is present in all types of housing transactions, residential lease and sales processes are quite different. Processes for cooperative and condominium sales could necessitate the need for screening to account, for example, cases of fraud that if not fully understood could have serious implications for the solvency of buildings down the road.

While a challenging issue, REBNY looks forward to the continued opportunity to work together to identify ways to further our shared goal of greater housing access. Thank you for your consideration of these points.