The inexorable Law of Unintended Consequences is at work in an unexpected controversy caused by some sloppy wording by the legislature when it passed the Housing Security and Tenant Protection Act of 2019.
HSTPA added a new section 702 to the Real Property Actions and Proceedings Law, the statute that establishes procedures for Housing Court. The problematic sentence of the new law provides::
No fees, charges or penalties other than rent may be sought in a summary proceeding pursuant to this article, notwithstanding any language in any lease or rental agreement.
According to tenant advocates who were involved in drafting HSTPA, this provision was inserted to prevent landlords from seeking late fees, interest and other ancillary charges in nonpayment proceedings. Apparently tenants, particularly upstate, were getting evicted for not paying, say, a $50 late fee even though they paid the actual rent
The first judge to address this issue has held that the language bars any claim for attorney’s fees by the winning party. In 744 E 215 LLC v Simmonds, Judge Shorab Ibrahim dismissed both the tenant’s and the landlord’s claims for fees, citing §702.
If upheld, this ruling could make it more difficult for tenants to recover fees that they are otherwise entitled to under their lease. Instead of just making a simple post-trial motion, a tenant would have to start a separate lawsuit against the landlord. This will not only delay the tenant’s recovery, it will, inevitably, increase the tenant’s expenses. In some cases, the additional expenses could dissuade a tenant from even pursuing the claim. The silver lining, of course, is that a landlord who prevails at trial would be in the same boat.
There is sure to be more to come on this issue, so stay tuned.
