New York tenants worry new blacklist ban won’t be enforced

One after another, apartments in Jane Burbank’s sights suddenly became unavailable.

At one potential rental, she was told a more financially qualified applicant had emerged shortly after her lease signing seemed imminent, she said.

At the next apartment, signing a formal agreement was a day away when the 69-year-old psychoanalyst said a background check showed she was in housing court a few years ago. That arrangement fell through, too.

Burbank told an unrelated broker the legal description was inaccurate, and though she said he understood, the broker indicated the landlord would never rent to her. Other potential offers simply disappeared.

“I was going to be homeless at the end of July,” said Burbank, who noted she began apartment hunting in March and located her first potential apartment at the end of June. “We went to see so many things, even things I wasn’t interested in … they think you’re a troublemaker, and they don’t want to rent to you.”

As part of a rent law overhaul, the State Legislature banned the use of so-called tenant blacklists, databases listing Burbank and anyone else named in a housing court action — even in cases that tenants win — over the past seven years, according to lawyers who represent residents.

The measure, which was signed into law by Gov. Andrew M. Cuomo, prohibits landlords from refusing to rent or offer leases to such tenants because of their current or past involvement in housing court matters.

But tenant advocates and attorneys worry that the new prohibition may not be well enforced because only the attorney general can bring cases against landlords that do not follow the rule.

“I worry,” said Carolyn Coffey, director of litigation for economic justice at Mobilization for Justice, which represents low-income New Yorkers. “There might be a false sense that this prohibition means that people are in the clear.”

The Democratic majorities in the State Senate and Assembly did not respond to requests for comment.

Issues with the list go beyond their existence and extend to their accuracy and exhaustiveness. Avoiding getting into the databases is often easier than getting out of them, according to Burbank and her attorney, James Fishman.

Burbank said leaks in her Upper West Side apartment left her with mold and asthma. She said her housing development, which began transitioning from a rental to condo site in 2007, did not prioritize her and other rent-stabilized residents’ maintenance requests.

To incentivize repairs, Burbank began paying rent into an escrow account and filed a lawsuit in 2015 seeking to compel the landlord to address mold, mice, a lack of cooking gas and insufficient heat and hot water, court records show. The owner, then an LLC affiliated with Time Equities Inc., countersued over the unpaid rent, court documents show.

The disputes were settled in a July 2017 agreement, in which Burbank agreed to move out by the end of September 2017 provided the landlord paid her $250,000, according to court filings.

Burbank’s building needed boiler and gas infrastructure upgrades, which impacted rent-regulated residents as well as condo owners, according to Seth Coston, director of residential asset management and operations at Time Equities Inc., which owned her apartment and developed the condos. Coston said he believed there were issues gaining access to Burbank’s apartment to conduct repairs. 

“It’s, in our opinion, a more complex matter than she’s making it sound,” Coston said.

Burbank, who relocated quickly in 2017 and says her credit score is 800, has found the market far less hospitable this time around. Tenant screening reports have suggested her case is pending, rather than settled, Fishman said.

“It was reported as an open case, which is certainly more pejorative than a case that was resolved,” Fishman said. “Also that the case was settled, without her being evicted, is certainly more mitigating than a case that ended up in her being evicted.”

A document formally declaring the case concluded was delayed and ultimately filed last month, Fishman said. It included a clause noting the landlord had consented to the expungement of any record of the case with tenant screening bureaus or credit rating agencies.

Fishman’s office sent a copy of the document to eight or nine tenant screening bureaus, requesting that they erase the case from their records, or at a minimum, accurately report that the matter was concluded. He said his team has not directly heard from any of the firms.

“The thing they keep getting wrong is that they think it’s enough to simply report that there was a case, and the resolution or disposition of the case is really kind of an afterthought,” Fishman said.

Fishman and other advocates have spent years highlighting hurdles faced by those in tenant screening report databases. In 2012, the state announced it would no longer sell streams of housing data with tenants’ names. But Lexis continues to dispatch people to housing courts, where they mine public records for data that is then purchased by third parties and, as recently as 2014, used by some 650 tenant screening bureaus across the nation, Fishman said.

Part of the enforcement issue for the new law is that the new prohibition is written in a way that would require residents to show screening reports were the sole reason — rather than one of multiple factors — in a lease denial, Fishman said.

The measure would also not allow private attorneys to sue over the lists, lawyers said. When the law goes into effect in mid-July, tenants must rely on the attorney general’s office, which could seek between $500 and $1,000 per infraction.

“That’s a real slap on the wrists for most landlords,” said Coffey.

Attorney General Letitia James’ Office declined to comment.

The new rule prohibiting the lists, coupled with another new provision limiting security deposits to no more than one month’s rent, will prompt many landlords to minimize their risks in other ways, according to Adam Frisch, Lee & Associates Residential NYC’s managing principal, who handles broker duties for about 40 buildings in the city.

“I just changed my policies to require two landlord references — your past landlord and the landlord before that,” Frisch said, adding that landlords are also discussing raising rent for some riskier tenants. “We were asking $3,500 let’s say. For you, the price is going to be $3,800 to mitigate your credit. And that way if there’s any issue, we’ll get more rent earlier in the lease to mitigate any issue that comes afterwards.”

The Real Estate Board of New York, a lobbying group for developers and landlords, did not respond to requests for comment.

Frisch said the lawmakers’ use of the term blacklist suggests the real estate industry conspires to keep out tenants on one central database, when most consider several factors in tandem with tenant screening reports. Many do not immediately dismiss prospective renters with a legal history, Frisch said.

“The common practice has been to investigate,” Frisch said. “I would always say to them, ‘Listen, there’s something odd on your credit. Can you explain it?’”

Enforcement will be key to empowering renters, according to Carmen Vega-Rivera, a tenant leader with Community Action for Safe Apartments New Settlement in the Bronx.

Vega-Rivera, 65, said she collaborated with about a dozen neighbors to engage in a rent strike at 888 Grand Concourse in 2016, and sue the prior owner over neglected repairs. Jonathan Bombart, a member of the firm that owned the building at the time, could not be reached for comment.

Vega-Rivera said it was difficult to convince some to get involved, in part, because of anxiety about being blacklisted. She could not fully counter their concerns, especially as someone who once received a notice in the mail indicating a landlord had reviewed tenant screening reports about her history in housing court.

“I’ve gotten rejection letters, not knowing if it was based on the blacklist,” said Vega-Rivera, who has been applying to units for disabled New Yorkers through the city’s affordable housing website for years. “I’m not going to let it stop me.”