S T A T E   O F   N E W   Y O R K
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                                  5539

                       2009-2010 Regular Sessions

                          I N  A S S E M B L Y

                            February 13, 2009
                               ___________

Introduced  by  M.  of  A. TITUS, SCARBOROUGH, COOK, JEFFRIES, BENJAMIN,
  WRIGHT, POWELL, ROBINSON, BOYLAND -- Multi-Sponsored by --  M.  of  A.
  CLARK,  DIAZ, FARRELL, GLICK, GOTTFRIED, JOHN, LAVINE, MILLMAN, PERRY,
  J. RIVERA, N. RIVERA, ROSENTHAL, TOWNS, WEISENBERG --  read  once  and
  referred to the Committee on Housing

AN  ACT  to  amend  the  real  property  actions and proceedings law, in
  relation to requiring that certain public housing  authorities  estab-
  lish an innocent tenant protection act applicable to tenants of public
  and federally assisted housing

  THE  PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
BLY, DO ENACT AS FOLLOWS:

  Section 1. Legislative intent. The legislature finds that it is imper-
ative that the  forty-nine  public  housing  authorities  in  the  state
provide that any criminal activities that threaten the health, safety or
right  to  peaceful enjoyment of the premises, engaged in by a tenant of
public or federally assisted housing, and members of the tenants' house-
hold, or any guest or other person under the tenants' control, shall  be
cause for termination of tenancy. The legislature further finds that law
abiding tenants are vulnerable to "One-Strike" evictions given the poli-
cy's  breadth  and  the United States Supreme Court's decision in UNITED
STATES DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT V.  DAVIS. Anyone who
leases public or assisted housing is a potential target of  "One-Strike"
evictions. It is of little consequence that a tenant may be law abiding,
despise  drug activity or have made his or her home a drug-free environ-
ment. Any link to guest or family members involved in drug  activity  on
or  off  the public housing premises can trigger eviction. Therefore the
legislature finds the adoption of  an  innocent  tenant  protection  act
vital to law abiding tenants of public and federally assisted housing in
New York state.
  S  2.  The  real  property  actions  and proceedings law is amended by
adding a new section 711-a to read as follows:

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD07559-01-9
              

A. 5539                             2

  S 711-A. INNOCENT TENANT PROTECTION. 1. EACH PUBLIC HOUSING  AUTHORITY
AND  OWNERS  OF  FEDERALLY  ASSISTED  HOUSING SHALL UTILIZE LEASES WHICH
PROVIDE THAT ANY CRIMINAL ACTIVITY THAT THREATENS THE HEALTH, SAFETY  OR
RIGHT  TO  PEACEFUL  ENJOYMENT  OF  THE PREMISES, ENGAGED IN BY A PUBLIC
HOUSING  OR FEDERALLY ASSISTED HOUSING TENANT OR ANY DRUG RELATED CRIMI-
NAL ACTIVITY ON OR OFF SUCH PREMISES ENGAGED IN BY A PUBLIC  HOUSING  OR
FEDERALLY ASSISTED HOUSING TENANT, ANY MEMBER OF THE TENANT'S HOUSEHOLD,
OR  ANY GUEST OR OTHER PERSON UNDER THE TENANT'S CONTROL, SHALL BE CAUSE
FOR TERMINATION, EXCEPT THAT NO TENANCY OF AN INNOCENT LESSEE  SHALL  BE
TERMINATED PURSUANT TO THIS SECTION.
  2.  THE  BURDEN  OF PROOF SHALL BE ON THE GOVERNMENT TO ESTABLISH BY A
PREPONDERANCE OF THE EVIDENCE  THAT  SUCH  TENANT  ENGAGED  IN  CRIMINAL
ACTIVITY AS DESCRIBED IN SUBDIVISION ONE OF THIS SECTION.
  3.  FOR  PURPOSES  OF  THIS SECTION THE TERM "INNOCENT LESSEE" MEANS A
LESSEE WHO:
  (A) DID NOT KNOW OF THE CRIMINAL ACTIVITY GIVING RISE TO THE  POSSIBLE
TERMINATION OF TENANCY; OR
  (B)  UPON  HEARING  OF  THE CONDUCT GIVING RISE TO THE POSSIBLE TERMI-
NATION OF THE TENANCY, DID ALL THAT REASONABLY COULD BE  EXPECTED  UNDER
THE  CIRCUMSTANCES  TO TERMINATE THE CRIMINAL ACTIVITY.  FOR PURPOSES OF
THIS SUBDIVISION, WAYS IN WHICH A PERSON MAY SHOW THAT SUCH  PERSON  DID
ALL  THAT  REASONABLY  COULD  BE EXPECTED MAY INCLUDE DEMONSTRATING THAT
SUCH PERSON, TO THE EXTENT ALLOWED BY LAW: (I) GAVE TIMELY NOTICE TO  AN
APPROPRIATE LAW ENFORCEMENT AGENCY OF INFORMATION THAT LED THE TENANT TO
KNOW  THE CONDUCT GIVING RISE TO A POSSIBLE TERMINATION OF TENANCY WOULD
OCCUR OR HAD OCCURRED; OR (II) IN A TIMELY FASHION  REVOKED  OR  MADE  A
GOOD  FAITH  ATTEMPT  TO  REVOKE  PERMISSION  FOR THOSE ENGAGING IN SUCH
CONDUCT TO USE THE PROPERTY, OR TOOK REASONABLE ACTIONS IN  CONSULTATION
WITH  A  LAW ENFORCEMENT AGENCY TO DISCOURAGE OR PREVENT THE ILLEGAL USE
OF THE PROPERTY.
  4. A TENANT IS NOT REQUIRED BY SUBDIVISION THREE OF  THIS  SECTION  TO
TAKE  STEPS  THAT  THE  PERSON  REASONABLY  BELIEVES  WOULD BE LIKELY TO
SUBJECT ANY PERSON, OTHER THAN THE PERSON WHOSE CONDUCT GAVE RISE TO THE
POSSIBLE TERMINATION OF TENANCY, TO PHYSICAL DANGER.
  S 3. (a) Within six months of the effective date of this act and after
granting notice and an opportunity to comment to affected  tenants,  the
executive  directors  of  the  public  housing authorities and owners of
federally assisted housing shall review the drug-related eviction proce-
dures of all jurisdictions having federally  subsidized  units  for  the
purpose  of determining whether procedures meet state due process stand-
ards.
  (b) Upon conclusion of the review mandated by subdivision (a) of  this
section, if the executive directors of public housing authorities or the
owners  of  federally assisted housing determine that due process stand-
ards are met for a jurisdiction, such directors and owners  shall  issue
such jurisdiction a waiver of the procedure that mandates an administra-
tive grievance hearing.
  (c)  Within  sixty  days  of  the completion of the review mandated by
subdivision (a) of this section, the executive directors of  the  public
housing  authorities  and  owners  of  federally  assisted housing shall
report to the mayors in those cities where such housing authorities  and
owners  are  under  the  auspices  of that government body or county, or
state body of government, the findings of the review including all waiv-
ers granted in accordance with subdivision  (b)  of  this  section.  The
tenancy  of a tenant of a public housing authority or federally assisted
housing shall not be terminated without cause and without reason  there-

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for  given  to  said  tenant  in writing prior to such housing authority
and/or federally assisted housing filing an action for  summary  process
or seeking an injunction.
  S  4.  This  act shall take effect on the thirtieth day after it shall
have become a law.