(a) Applicability. These Harassment rules apply to all Harassment Applications filed with the Loft Board, after September 11, 2013. Harassment Applications are subject to the Harassment rule in effect on the date of the initial filing of the Application.
All orders of Harassment must be kept in the Loft Board's records and in the office of the City Register in accordance with the provisions of 29 RCNY § 2-02(d)(1)(iii).
(b) Definitions. For the purposes of this section, the following definitions apply:
Harassment means any course of conduct or single act engaged in by the Owner, Landlord or any other Person acting on such Owner's behalf that interferes with or disturbs the comfort, repose, peace or quiet of an Occupant in the Occupant's use or occupancy of its unit. Such conduct must be intended to cause the Occupant to vacate the Building or unit, or to surrender or waive any rights of such Occupant under the Occupant's written lease or other rental agreement or pursuant to Art. 7-C. Harassment may also include any act or course of conduct by a Prime Lessee or any Person acting on such Prime Lessee's behalf that would constitute Harassment if engaged in by the Owner or Landlord, against any of the Prime Lessee's current or former subtenants who are residential Occupants qualified for protection under Art. 7-C. Harassment includes, but is not limited to, the intentional interruption or discontinuance of or willful failure to provide or to restore services customarily provided in the Building or required by written lease or other rental agreement or, for residential Occupants qualified for the protections of Art. 7-C, by the Loft Board rules regarding minimum housing maintenance standards. Harassment does not include either the lawful termination of a tenancy or lawful refusal to renew or extend a written lease or other rental agreement, or acts performed in good faith and in a reasonable manner for the purposes of operating, maintaining or repairing any Building or part thereof. There is no requirement that the Landlord's actions or inactions be illegal to constitute Harassment. The Loft Board may find that a particular act constitutes Harassment whether it was directed toward one Tenant or multiple Tenants.
Ongoing Course of Conduct means actions or inactions by or on behalf of the Landlord, Owner or Responsible Party, that when considered together, show a Continuous Pattern of Behavior.
Continuous Pattern of Behavior, includes, but is not limited to, acts, at least one of which happened within one hundred and eighty (180) days preceding the filing of the Harassment Application, that show a sequence of events that are similar in nature or a sequence of events that are reasonably related.
(c) Procedures for considering Harassment Applications.
(1) It is unlawful for a Landlord or any other Person acting on its behalf to engage in conduct constituting Harassment against any Occupant of an IMD Building. A Harassment Application may be filed with the Loft Board by Occupant(s) of an IMD Building. The Application must be filed on a form approved by the Loft Board and will be processed in accordance with 29 RCNY § 1-21, and the specific requirements provided below.
(2) (i) The description of the conduct complained of must contain the actual or approximate date(s) on which such conduct occurred, the manner and location of each occurrence, and if the complaint is filed on behalf of more than one Occupant, the Occupants against whom the occurrence was directed. The Application must be filed within one hundred and eighty (180) days of the conduct complained of, or where an Ongoing Course of Conduct is alleged, the Application must be filed within one hundred and eighty (180) days of the last occurrence.
(ii) Reserved.
(iii) If the Loft Board finds that an applicant has filed a Harassment Application in bad faith or in wanton disregard of the truth, the applicant may be subject to a civil penalty as determined by the Loft Board in 29 RCNY § 2-11.1.
Where a Harassment Application solely alleges that the Owner's or Responsible Party's challenge of a sale of improvements is frivolous, the applicant must serve only the Owner or Responsible Party as an Affected Party.
An answer form must be enclosed with the copy of the Application sent to the Affected Parties. Instructions for filing an answer must advise the Owner or Responsible Party that a finding of Harassment may affect the Owner's or Responsible Party's ability to decontrol or to obtain market rentals for covered IMD units pursuant to MDL §§ 286(6) and 286(12) and the Loft Board's rules. Inclusion of an answer form with the Application at the time of service constitutes compliance with this paragraph.
(4) Parties have fifteen (15) days after the date on which service of the Application was completed, calculated from the mailing date shown on the certificate of mailing filed with the Loft Board, to file an answer with the Loft Board. Copies of the answer with proof of service of the answer on the applicant(s), as described in 29 RCNY § 1-22(c), must be filed at the offices of the Loft Board.
(5) (i) Following the expiration of the deadline for filing an answer, the Loft Board or the Trials Division of OATH will send, by regular mail, a notice of conference to the Affected Parties. The notice of conference will schedule a date and time for an informal conference as soon as possible, but no sooner than fifteen (15) days from the date of mailing the notice of conference. The notice of conference sent to the Owner or Responsible Party will advise the Owner or Responsible Party that a finding of Harassment may affect the Owner's or Responsible Party's ability to decontrol or to obtain market rentals for covered IMD units pursuant to MDL §§ 286(6) and 286(12) and the Loft Board's rules.
(ii) The informal conference may be conducted by the Loft Board staff or OATH with the Affected Parties in an effort to resolve and alleviate the conditions and events alleged. Where resolution to the mutual satisfaction of the parties is achieved, a stipulation containing the terms of the resolution and the penalties, if any, for its breach must be executed by the parties and filed with the Loft Board for its approval on the Loft Board's summary calendar.
(6) Where charges of Harassment remain unresolved following the informal conference, a hearing on the allegations in the Harassment Application will be held in accordance with the procedures of 29 RCNY § 1-27 and the following:
(i) The hearing will be limited to the charges contained on the original Application, as modified at the conference, and any additional charges of Harassment arising as a result of conduct occurring after the conference.
(ii) The acts performed by an Occupant in good faith and in a reasonable manner for the purposes of operating a non-residential conforming use will be presumed not to constitute Harassment. The presumption may be rebutted by a showing that the acts were performed on the Landlord's behalf and intended to cause another Occupant to vacate the Building, or its unit or to surrender or waive any rights of such Occupant under the Occupant's written lease or other rental agreement or pursuant to Art. 7-C.
(iii) A finding by the Loft Board that the Owner or Responsible Party has willfully violated the code compliance timetable or has violated the code compliance timetable more than once may be considered as evidence of Harassment. (See rules on Code Compliance - 29 RCNY § 2-01(c)(5)).
(iv) The issuance of a municipal vacate order for hazardous conditions as a consequence of the Owner's or Responsible Party's unlawful failure to comply with the code compliance timetable will result in a rebuttable presumption of Harassment. (See rules on Code Compliance - 29 RCNY § 2-01(c)(6)).
(v) A finding by the Loft Board of unreasonable and willful interference with an Occupant's use of its unit by the Landlord or its Agents may be considered as evidence of Harassment. (See rules on Code Compliance - 29 RCNY § 2-01(h)).
(vi) A finding by the Loft Board of a willful violation of Minimum Housing Maintenance Standards may be considered as evidence of Harassment of residential Tenants. (See rules on Enforcement of Minimum Housing Maintenance Standards - 29 RCNY § 2-04(e)(6)).
(vii) A finding by the Loft Board that the filing of an Application by the Owner or Responsible Party objecting to the sale of improvements was frivolous may be considered as evidence of Harassment of residential Tenants. An objection to the sale may be found to be frivolous on grounds including, but not limited to, the following:
(A) That it was filed without a good faith intention to purchase the improvements at fair market value or
(B) That the Owner's or Responsible Party's 'valuation of the improvements has no reasonable relationship to the fair market value, as determined by the Loft Board. (See rules on Sales of Improvements - 29 RCNY § 2-07(g)(1)(ii)). At the Occupant's request, the Loft Board will issue its findings on a pending Harassment Application based upon the allegation that the Owner's or Responsible Party's objection to the sale of improvements is frivolous, or any other pending Harassment Application in the Building, concurrently with its determination of the Owner's or Responsible Party's challenge.
(viii) A determination by a civil or criminal court of Landlord Harassment of an Occupant(s) may be considered as evidence of Harassment.
(d) Findings of Harassment.
(1) (i) Effect of Harassment finding. A Landlord that is found by the Loft Board to have harassed an Occupant will not be entitled to the decontrol of or market rental for any IMD unit after a sale of improvements pursuant to MDL § 286(6) of Art. 7-C and these rules. This restriction applies to any sale of improvements that takes place on or after the date of the order containing the finding of Harassment until the date the order is terminated in accordance with 29 RCNY § 2-02(d)(2). This restriction may also apply to any sale of rights pursuant to MDL § 286(12) and 29 RCNY § 2-10 that takes place on or after the date of the order containing the finding of Harassment until the date the order is terminated in accordance with 29 RCNY §§ 2-02(d)(2).
(ii) Civil penalty for a finding of Harassment. If the Loft Board finds that a Landlord harassed an Occupant, the Landlord may be liable for a civil penalty as determined by the Loft Board in 29 RCNY § 2-11.1 for each occurrence that is found to constitute Harassment. Registration as an IMD will not be issued or renewed for any Building for which fines have been imposed for Landlord Harassment until all fines have been paid.
(iii) Notice of a Harassment finding. The order containing the finding of Harassment is binding on all individuals or parties who succeed to the Landlord's interest in the premises until the Harassment order is terminated in accordance with 29 RCNY § 2-02(d)(2) below. A copy of the Loft Board's order containing the finding of Harassment will be mailed to the applicant, the Owner or Responsible Party, and the Affected Parties to the proceeding. Notice of such order will be filed by the Loft Board in the office of the City Register.
(iv) Effect on other relevant laws. The procedure provided in this rule operates in addition to any procedures provided under other provisions of law and must not be construed to alter, affect or amend any right, remedy or procedure that may exist under any other provisions of law, including, but not limited to the following:
(A) An Occupant may apply to the Supreme Court of the State of New York for an order enjoining a Landlord from Harassment pursuant to § 235-d(4) of the Real Property Law and may pursue all other remedies in relation to Harassment including the award of damages before a court of competent jurisdiction.
(B) Upon the request of a residential Occupant who either vacates, has been removed from or is otherwise prevented from occupying its unit as a result of Harassment, a Landlord must take all reasonable and necessary action to restore the Occupant to its unit, provided that such request is made within seven (7) days after removal, pursuant to § 26-521(b) of the New York City Administrative Code.
(C) Residential Occupants of IMDs are afforded the protections available to residential Occupants pursuant to the Real Property Law and the Real Property Actions and Proceedings Law, including § 223-b of the Real Property Law regarding retaliatory evictions, notwithstanding that such Occupants may reside in an owner-occupied IMD having fewer than 4 Residential Units.
(D) Special proceedings pursuant to Article 7-A of the Real Property Actions and Proceedings Law are available to all Occupants of IMDs, notwithstanding that such IMDs may contain less than three (3) Residential Units.
(v) Violation of 29 RCNY § 2-04. If the OATH Administrative Law Judge assigned to the case finds that the acts alleged by the Occupant do not constitute Harassment, the Administrative Law Judge may, in the alternative and without the need for the applicant to amend his or her Application or pleadings, consider whether the facts alleged in the Application describe an Owner's or Responsible Party's failure to provide a service or an Owner's or Responsible Party's unlawful diminution of services. If so, upon notice to the Owner or Responsible Party, the Application may be processed pursuant to the Loft Board's rules regarding diminution of services as described in 29 RCNY § 2-04. Upon notice that the facts alleged will be processed as a diminution of services claim, the Owner or Responsible Party may seek permission from the Administrative Law Judge to file a response to the claim of diminution of services. The Administrative Law Judge may recommend a fine, in accordance with 29 RCNY § 2-11.1 for any finding of diminution of services.
(2) (i) Termination of Harassment findings. Where the Loft Board has issued a finding of Harassment, the Landlord may apply to the Loft Board pursuant to 29 RCNY § 1-21, for an order terminating the Harassment finding following the expiration of the period of time specified in the Harassment order. The order containing the finding of Harassment must specify the period of time, within a range of one (1) to three (3) years from the date of the order of Harassment, during which the Landlord is barred from applying for an order of termination. However, where a Landlord has been convicted of a crime for conduct found by the Loft Board to constitute Harassment, the Landlord may apply for an order of termination only after at least five (5) years have passed since the date of the order of Harassment. After the period during which the Landlord is barred from applying for termination of the Harassment finding has expired, the Loft Board may terminate the Harassment finding if it finds that:
(A) Since notification of the order, the Landlord has not engaged in the prohibited conduct or any other conduct which constitutes Harassment;
(B) The Landlord has achieved compliance with the fire and safety standards of Art. 7-B, alternative building codes or provisions of the MDL, as provided in 29 RCNY § 2-01(a) governing Code Compliance Work and as may be exhibited by the issuance of a temporary certificate of occupancy, or Art. 7-B certification on the approved Loft Board form, or if Art. 7-B compliance was achieved before the date of the order of Harassment, has obtained a final residential certificate of occupancy for the IMD units;
(C) The Landlord has paid all civil penalties assessed in the order of Harassment, and there are no other orders of Harassment outstanding for the IMD Building; and
(D) The Landlord is in compliance with 29 RCNY § 2-05 relating to registration of the IMD Building.
(ii) Orders terminating Harassment findings. An order terminating a prior Loft Board finding of Harassment applies prospectively only, and the Landlord, Owner or Responsible Party is not entitled to the decontrol of or market rental for any Residential Unit for which a sale of improvements pursuant to MDL § 286(6) and these Rules has taken place in the period from the date of the order finding Harassment to the date of the order terminating such finding.
(iii) Suspension or revocation of termination of Harassment orders. If the Loft Board at a regularly scheduled meeting or at a special session called in accordance with 29 RCNY § 1-20 has reasonable cause to believe that Harassment is occurring or has occurred at the IMD after the date of an order terminating a prior finding of Harassment, the Loft Board shall suspend such order of termination immediately. Notice of such suspension shall be mailed to the Landlord and to all Occupants. Upon the Landlord's written request, the Loft Board shall schedule a hearing as soon as reasonably possible but not later than thirty (30) days after the date of receipt of such request to determine whether the order of termination should be reinstated or revoked.
(iv) Filing at the City Register. The order of termination or suspension, reinstatement or revocation of termination must be included among the IMD registration material on file with the Loft Board. The Loft Board will file the notice of termination or notice of suspension, reinstatement or revocation of termination in the office of the City Register.
(e) Harassment by prime lessees.
(1) "Prime lessee." For the purposes of this Harassment rule, the term "prime lessee" means the party with whom the Landlord entered into a lease or rental agreement for use and occupancy of a portion of an IMD Building, which is being used residentially, where the prime lessee is not the residential Occupant qualified for protection of the unit, regardless of whether the lessee is currently in occupancy of any portion of the space the prime lessee has leased from the Landlord or whether the lease remains in effect.
(2) It is unlawful for a prime lessee or any other Person acting on his or her behalf to engage in conduct that would constitute Harassment if engaged in by the Landlord, against any of the prime lessee's current or former subtenants who are residential Occupants qualified for the protections of Art. 7-C. A Harassment Application may be filed with the Loft Board by a residential Occupant qualified for the protections of Art. 7-C against the prime lessee. The Application will be processed in accordance with the procedures described in 29 RCNY § 2-02(c). The deed Owner of the Building must be listed as an Affected Party in all Applications brought under this subdivision (e).
(3) (i) If the Loft Board finds that a prime lessee harassed an Occupant qualified for Art. 7-C protection, the prime lessee may be liable for a civil penalty as determined by the Loft Board in accordance with 29 RCNY § 2-11.1 for each occurrence that is found to constitute Harassment.
(ii) A prime lessee found by the Loft Board to have harassed an Occupant qualified for Art. 7-C protection is not entitled to recover subdivided space pursuant to 29 RCNY § 2-09(c)(5)(i) and (c)(5)(v) relating to subletting and is not entitled to the rent adjustment provided for in 29 RCNY §§ 2-09(c)(6)(ii)(D)(b).
(4) (i) After the period of time barring the Landlord, Owner or Responsible Party from terminating a Harassment finding provided in the Loft Board order, the prime lessee may apply to the Loft Board pursuant to 29 RCNY § 1-21 for an order terminating such finding. The order containing the finding of Harassment will specify the period of time, within a range of one (1) to three (3) years from the date of the order of Harassment, during which the prime lessee will be barred from applying for an order of termination. However, where a prime lessee has been convicted of a crime for conduct found by the Loft Board to constitute Harassment, the prime lessee may apply for an order of termination only after at least five (5) years have passed since the date of the order of Harassment. The Loft Board may grant such relief if it finds that:
(A) Since notification of the order the prime lessee has not engaged in the prohibited conduct and has not engaged in any other conduct which constitutes Harassment, and
(B) The prime lessee has paid all civil penalties assessed in the order of Harassment, and there are no other orders of Harassment outstanding for the prime lessee.
(ii) An order terminating a prior Loft Board finding of Harassment by a prime lessee applies prospectively only.
(Amended City Record 3/1/2023, eff. 3/31/2023)