TESTIMONY OF LEGAL SERVICES NYC AND
THE LEGAL AID SOCIETY REGARDING PROPOSED
REGULATIONS REGARDING SUCCESSION RIGHTS,
VETERANS’ PREFERENCES, AND NOTICE REQUIREMENTS
IN MITCHELL-LAMA HOUSING
November 7, 2013
Legal Services for New York City (LSNYC) is the largest provider of free civil legal
services in the country. The nineteen neighborhood offices of LSNYC throughout the City
represent thousands of low-income tenants annually in disputes involving tenants’ rights to
remain in their homes.
Founded in 1876, the Legal Aid Society’s Civil Practice is the oldest and largest program
in the nation providing direct legal services to the indigent. Annually, the Society’s Civil
Practice provides free direct legal assistance in some 30,000 individual cases involving
immigration, domestic violence, family law, and employment, in addition to housing, public
benefits and health law matters, through a network of 10 neighborhood offices in all five
boroughs and 17 specialized units and projects for under-served client groups.
Introduction
We welcome the opportunity to testify before the Department of Housing Preservation
and Development in connection with its proposed new rules governing city-aided limited profit
housing companies. As further discussed below, we urge HPD to delay these new regulations
until the administration has an opportunity to determine whether it supports such significant
changes to the program.
There are three major proposals that our comments will focus on: 1) the changes to the
veterans’ preference, 2) the changes to the succession regulations and 3) the changes to the rights
of tenants to receive notice when housing companies reconstitute as a housing development fund
companies under Article XI. We strongly object to all three proposals.
Succession policy
In 1993, in accordance with the Court of Appeals’ seminal decision in Braschi v. Stahl
Assoc. Co., 74 N.Y.2d 201 (1989), HPD promulgated the regulations that currently govern the
rights of remaining family members in Mitchell-Lama housing. Now, on the eve of a new
administration, HPD suddenly and inexplicably proposes to radically restructure the succession
rules that have been applied in its Mitchell-Lama buildings for the past two decades. For the
reasons that follow, HPD should withdraw the proposed regulatory changes to allow for more
thorough public comment and for review by the incoming mayoral administration rather than
precipitously proceed with its drastic revision of regulations that need no revision.
Ironically, it was just last month that the New York Court of Appeals reiterated the
importance of succession rights in protecting low income families living in Mitchell-Lama
housing. In Murphy v. DHCR, --N.E.2d---, 2013 WL 5637985 (2013), decided on October 17th,
the Court of Appeals found:
Regulations providing for succession rights to Mitchell–Lama apartments serve
the important remedial purpose of preventing dislocation of long-term residents
due to the vacatur of the head of household ( see Notices of Emergency/Proposed
Rule Making, NYS Register, Nov. 29, 1989, at 23–29). Succession is in the spirit
of the statutory scheme, whose goal is to facilitate the availability of affordable
housing for low-income residents and to temper the harsh consequences of the
death or departure of a tenant for their “traditional” and “non-traditional” family
members (see Braschi v. Stahl Assoc. Co., 74 N.Y.2d 201 (1989); see also Rent
Stabilization Assn. of New York City v. Higgins, 83 N.Y.2d 156 (1993)).
HPD’s proposals do not serve the “important remedial purpose of preventing dislocation of longterm residents due to the vacatur of the head of household”, instead, they do the opposite by
narrowing the definition of both family and vacatur. In the proposed regulatory changes, HPD
proposes severely limiting families’ succession rights in three ways: 1) limiting the definition of
family 2) limiting the events that give rise to succession claims; and 3) imposing a narrow and
draconian time frame within which a potential successor must apply for succession. We oppose
all three amendments.
Since 1993, HPD’s succession rules have mirrored the provisions of the rent control and
rent stabilization laws in following the holding of the Court of Appeals in Braschi. The Braschi
court firmly stated that it was inconsistent with the purposes underlying the rent laws to rest
protection against eviction on “fictitious legal distinctions or genetic history, but instead should
find its foundations in the reality of family life.” 74 N.Y.2d at 211. The Court concluded that
entitlement to succession rights “should be based on an objective examination of the relationship
of the parties,” not on the legal formalities accompanying that relationship. Id., at 212. These
principles apply no less to Mitchell-Lama housing, which constitute a scarce oasis of
affordability for middle income families in the midst of New York’s steadily worsening housing
crisis.
HPD’s proposal to abolish succession rights for family members in non-traditional,
“Braschi” relationships with the tenant of record contravenes the remedial purposes of the Court
of Appeals’ decision and contravenes two decades of settled law. The recent legislation
permitting gay couples to marry provides no basis for HPD’s regulatory change. Even after the
legalization of same-sex marriage, numerous families will continue to consist of individuals
united not by legal ties, but by close ties of affection and interdependence. Indeed, in Braschi,
the Court of Appeals cited with approval cases endorsing succession rights for unmarried
heterosexual couples and other non-traditional relationships. See, Braschi, at 213, citing,
Zimmerman v Burton, 107 Misc.2d 401, 404 [unmarried heterosexual life partner]; Rutar Co. v
Yoshito, No. 53042/79 [Civ. Ct, NY County] [unmarried heterosexual life partner]; Athineos v
Thayer, NYLJ, Mar. 25, 1987, at 14, col 4 [Civ. Ct, Kings County], affd, NYLJ, Feb. 9, 1988, at
15, col 4 [App. Term, 2d Dep’t] [orphan never formally adopted but lived in family home for 34
years]; 2-4 Realty Assocs. v Pittman, 137 Misc.2d 898, 902 [two men living in a “father-son”
relationship for 25 years]. Inexplicably, HPD also proposes to bar the succession rights even of
adoptive children, who are generally treated the same as natural children in New York law. See
e.g., N.Y. Domestic Relations Law § 117; N.Y. E.P.T.L. § 4-1.1(d). HPD should heed the
holdings of New York State’s highest court – last month in Murphy and twenty years ago in
Braschi – underscoring the importance of preventing dislocation of low income families from
regulated housing and withdraw its changes to the definition of family.
Further, HPD proposes restricting the definition of vacatur to the head of household’s
death or removal to a long term care facility and to require potential successors to apply for
succession within 90 days from vacatur. This change would mean that family members who
have lived in apartments, some for their entire lives, will lose their homes unless the head of
household vacates under the limited circumstances required by HPD. Children, for example,
who have grown up in Mitchell-Lama apartments, should not be forced from their family home
based on a parent’s decision to relocate for retirement, remarriage, or indeed, for employment in
another locality.
Additionally, in situations where the head of household removes to a long term care
facility, it is often unclear for quite some time whether the head of household intends or is able to
return to their homes. This ninety day time limit would ensure that families in this situation
would lose their homes simply because the reality of dealing with sick, elderly and disabled
family members does not comport with HPD’s arbitrary time frame. Because HPD’s proposed
amendments would lead to dislocation of low income families from affordable housing, we
oppose these amendments.
Veterans’ preference.
The proposed regulations weaken the existing protections for veterans in 28 RCNY § 302, conflict with the plain language of and undermine the legislative intent of PHFL § 31(7).
Indeed, HPD seeks to curtail preferential treatment for veterans only three years after the
Legislature voted to broaden the reach of the veterans’ preference by including veterans of the
nation’s most recent conflicts, and to reaffirm its intent to “ensure that our fellow New Yorkers
who are serving in the military know that they will always be welcomed home.” N.Y. Spons.
Memo., 2010 A.B. 9501. With these proposed regulations HPD has taken what is a clear and
unambiguous law and added additional requirements not found in the plain language of the
statute, and contrary to the legislative intent of the 2010 amendments to PHFL § 31(7).
First, HPD proposes changes to the regulation which would apply the veteran’s
preference only to those veterans lucky enough to have their applications picked in a lottery. By
first subjecting veterans to a lottery before they can even be considered for placement on a
Mitchell-Lama waiting list greatly diminishes their chance of successfully being placed in a
Mitchell-Lama apartment. The statute does not allow for this kind of limitation on the
application of the veteran’s preference. The plain language of the statute is that the preference is
applied after closed waiting lists are reopened without making any provision for a lottery.
Second, HPD proposes a change to the regulation under which they will only apply the veterans’
preference to Mitchell-Lama applicants who are the “head of household”. This proposed move
has the potential cut out many families who would otherwise be eligible for the preference but
where the veteran is not the head of household.1
This change will act to deny Mitchell-Lama housing to some of the most vulnerable of
our veterans. Sadly, many veterans are profoundly disabled due to injuries suffered during their
service. These veterans are often in the care of their family members and due to their disabilities
would be unable to act as head of household on a Mitchell-Lama housing application. A veteran
suffering from traumatic brain injury (TBI) may not be able to sign the forms required or manage
1
It is troubling that HPD is currently operating as if this change to the regulations is already in place.
The Veterans Justice Project at South Brooklyn Legal Services, along with the Veterans Advocacy Project at the
Urban Justice Center, recently filed an Article 78 proceeding in New York County Supreme Court alleging that
HPD and a Mitchell-Lama development failed to go through applications for a reopened Mitchell-Lama waiting list
and apply the veterans’ preference before conducting a lottery. As a result, Aaron Glover, a decorated veteran of the
United States Air Force and current employee of the United Stated Department of Veterans Affairs, was improperly
denied a space on a waiting list. This case is currently pending before the Court. See, Glover v. Visnuskas et. al.,
Index # 101413/2013 (New York Co. Sup. Ct.)
their affairs to the extent needed to act as the head of household on a Mitchell-Lama. These
veterans will be denied the ability to benefit from the veterans preference for Mitchell-Lama
housing if the proposed changes to the regulations are enacted. Moreover, it would clearly
contradict to the intent of the statute if a veteran who has volunteered for another tour of active
duty would be denied the veteran preference because he or she was overseas serving our country
and was not available to be listed as the head of household on an application for a Mitchell-Lama
apartment.
Not only is the proposed change deleterious from a policy point of view, but it
contravenes the statute that makes no reference to a “head of household” requirement. Indeed,
while PHFL § 31(7) does not contain the phrase “head of household,” the concept of head of
household is not one that is foreign to the drafters of the PHFL. One need only look two sections
down in the statute to find the term “head of household” in reference to rent setting where the
“head of household” is age 62 or older. PHFL § 31(9)(b). The presence of the term “head of
household” in the same statute demonstrates the ability of the legislature to use the term
deliberately. If the legislature intended the concept of “head of household” to apply to the
Veteran preference, they would have specifically included such language as they did later in the
same statute.2
Limitation of tenants’ right to notice of HDFC conversions
2
Again, HPD has been acting as if this proposed change to the regulations is already in place. In Bumagin v.
Wambua, et. al., Index # 402217/2012 (New York Co. Sup. Ct.), Ret. Sergeant Martin Bumagin was forced to sue
HPD after his family was denied a veterans’ preference on the grounds that his mother was listed as the “head of
household” while Sergeant Bumagin was on active duty in the United States Marine Corps and was deployed in
support of Operation Iraqi Freedom. HPD agreed to afford the Bumagins the statutory preference only after Supreme
Court Justice Michael D. Stallman issued a Temporary Restraining Order preventing the leasing of the subject
apartment.
Under current regulations, when a building leaves the Mitchell-Lama program, or when a
building undergoes a preservation reconstitution, tenants receive one year’s notice of this change.
HPD proposes that when a development reconstitutes as an Article XI HDFC, in contrast, tenants
be given only thirty days’ notice. In addition to severely limiting the time tenants have to learn
about, understand and respond to such proposals, HPD restricts the information that tenants
receive about Article XI reconstitutions. Where developments either dissolve and privatize or
reconstitute for preservation purposes, tenants are entitled to numerous documents relating to the
housing company and its plan. This allows tenants to understand what is proposed and to
provide input about the plan moving forward. Restricting the information available to tenants
and limiting notice to tenants, serves only to ensure that tenants lack the ability to respond to the
housing company’s plan. This leaves the decision about whether this reconstitution preserves
affordable housing in the hands of HPD. The only requirement in the regulations is that there be
a thirty-year regulatory agreement. There is no mention of the need to preserve these
developments as affordable housing. For all these reasons, we oppose these amendments.
Conclusion
The proposed changes to HPD’s rules governing City-aided limited-profit housing
companies are significant and would greatly affect the low income families that reside in such
housing. Considering that in two months there will be a new administration in New York City,
we urge the agency to hold these proposals in abeyance until the new administration has an
opportunity to review them.
As always, we look forward to working closely with HPD in the future to discuss any
need for amendments to the rules. Thank you for giving us the opportunity to testify today.