Business

The state Legislature passed a law in 2021 that requires qualifying housing providers — including co-op boards and landlords — to provide written notice to their shareholders and tenants of their rights to reasonable accommodations and modifications. The new law also required the New York State Division of Human Rights (DHR) to promulgate regulations regarding its notice requirements. It has taken almost a year for the DHR to accomplish this, but they have finally provided their rules.

And the deadline is looming. The notice must be given to existing residents by June 17th, and within 30 days of occupancy for all future residents.

On May 18, 2022, the DHR issued new rules regarding the required written notice that a qualifying “Housing Provider,” (i.e., “owner, lessee, sub-lessee, assignee, or managing agent of, or other person having the right to sell, rent or lease a housing accommodation…”) will have to provide to their existing and new tenants regarding their right to request a reasonable accommodation or modification. As a reminder, a reasonable “accommodation” is a change in rules and policies necessary to afford a person with a disability an equal opportunity to use an apartment, such as permitting emotional support animals in no-pet buildings, or assigning a parking space to a disabled resident who may not be next on the waiting list. On the other hand, a reasonable “modification” is a physical change to the building, such as installing ramps, automatic doors and grab bars.

Housing providers that are required to provide such notice include all co-ops, rental properties and other community associations that are renting out residential housing. For example, a condo board or homeowners association is not subject to the notice requirement — unless it owns a unit and is leasing it for home residency. Commercial tenancies are not included under the notice requirement.

The following are the notice requirements:

• The notice must be in 12-point font (or other easily legible font).

• It must include the telephone number and e-mail address of the property manager or other person responsible for receiving accommodation and modification requests. 

• It may be sent electronically, by email, fax or other means. Links are acceptable provided the notice can be downloaded and printed. 

• It must be posted physically, but posting the notice does not satisfy the requirement to send the notice to all existing and future residents. 

• It may be sent along with other documents, such as leases and application documents. 

• If you have a community website, you must post the notice or a link to it on the homepage of your website.

Many bylaws include an arbitration provision. Something like, any dispute between the Unit Owners and the Condominium shall be submitted to binding arbitration in accordance with the rules of the American Arbitration Association and that the decision in any arbitration shall be binding upon all of the parties thereto and may be entered in any court of appropriate jurisdiction. Complaining unit owners often overlook it and boards may stay away from it. Some argue that an arbitration agreement in the condos governing documents only applies to breaches under the governing documents and not disputes outside the four corners of the documents; however, the usual “any dispute” and “shall be submitted” language in an arbitration provision, is awfully broad and arguably goes beyond the four corners.

That said, there are drawbacks of arbitration. For example, discovery is not a right of the parties (that is, unless the arbitration provision covers discovery. Instead, an arbitrator or even a arbitration panel of several decision makers, decides whether the parties need discovery. Another issue is getting discovery from third parties. Although an arbitrator or panel can subpoena third parties to testify at an arbitration hearing, there is no right to subpoena third parties for pre-arbitration discovery. The third party can simply ignore a subpoena and unlike a court, an arbitrator is essentially powerless to compel compliance.

Some people believe that arbitration is a less expensive approach that a litigation, but that is not always the case. Some arbitrations can be as contentious as litigations and sometimes take longer than a court lawsuit.

Unit owners and boards should consider what their governing documents say about arbitration and if appropriate in a given case, consider arbitration instead of litigation. Consulting with counsel who is experienced in both litigation and arbitration like Colbert Law, is always recommended.