It’s 10 AM in Brooklyn Housing Court, and Sookdeo S., who emigrated from Guyana 14 years ago, is puzzling over the legal papers he will have to fill out in order to begin trying to reclaim a part of his home—a maddening process that could take months. A taxi driver by day who works nights in a garage, he took a decade to save enough to buy a two-family house in the Bushwick section of Brooklyn. To help make his mortgage payments, he rented half the house to a couple. When his tenants returned to Guyana in late 1994, their son moved in; he refuses to pay rent or move out. Mr. S. has been filling out forms for two hours but now has to leave for work. He'll come back tomorrow to go on with the paperwork.
"I worked until 3 o'clock this morning," he says in his lilting accent, "got home at 4, and after I gave my kids breakfast and took them to school I came here. I haven't been to bed at all, but now I've got to go back to work." He and his wife, both in their late thirties, count on the $675 monthly rent from their tenant to supplement their wages—he makes $11 an hour at the garage; she earns $8 hourly as an office clerk. But they probably won't collect a dime of rent any time soon. "He knows he can stay for six months free," Mr. S. says of his tenant, "and then move out without paying me anything."
It's a story heard again and again in New York City's housing courts, which dispense a form of "justice" so topsy-turvy that its procedural requirements can bankrupt a landlord who has already met the burden of proof. Three months after that first morning in Housing Court, Sookdeo S. is no nearer a solution to his problem; he is, in fact, on the brink of losing his home in a bank foreclosure.
His Kafkaesque journey through the Housing Court maze to reach this inequitable result is exemplary. It began when he paid a marshal to serve papers on his illegal tenant (a landlord is not allowed to serve papers himself). The tenant returned the papers to the court clerk, who set a hearing date. Mr. S. took the morning off to appear in court, but the tenant didn't show up. In most other courts, the judge would have entered a default judgment against the tenant. But not in Housing Court, where the tenant's failure to show up presents the landlord with yet another set of procedural hoops. The tenant next received a notice by mail that he was threatened with eviction. Then a judge conducted an inquest—another morning in court for Mr. S.—scrutinizing the way in which the papers were served, the way in which they were filled out, and other details, looking for any technical flaws in Mr. S.'s case.
When the judge finally signed the judgment to evict, two more months later, the marshal had to give the tenant three days' notice before serving the eviction warrant. At this point, the tenant—still living in Mr. S.'s house and not paying rent—came to court and requested an "order to show cause," which requires the landlord again to justify his case against the tenant. Tenants are able to postpone eviction for months by filing a succession of orders to show cause, each resulting in a new hearing. In court for the fourth time, missing another day's work as the bills pile up, Sookdeo S. gazes at the sign that reads Landlord Tenants Court. "They should just call it Tenants Court," he remarks wearily.
The State Legislature established a Housing Court in each New York City borough in 1973, primarily to deal with complaints about violations of the housing code the city had enacted six years earlier. But the courts would also take cases involving eviction and non-payment of rent, previously under the jurisdiction of the civil courts and the city and state agencies that administered rent control. Tenant activists and Legal Aid Society lawyers saw in the new court an opportunity to press their anti-landlord cause: they began educating tenants about their exceedingly generous legal rights, rights that expanded as Housing Court judges built up a body of case law.
The system for appointing judges reinforces an anti-landlord bias. The city's chief administrative judge, at present E. Leo Milonas, appoints the 35 judges for five-year terms. Milonas gets recommendations from an advisory council drawn from the real estate industry, tenant advocacy groups, major law firms, and state and city agencies. Nevertheless, according to the biographical information provided in a report published by the Fund for Modern Courts in October 1994, fully one-third of the judges sitting in the Manhattan, Bronx, and Brooklyn Housing Courts today come out of the Legal Aid Society or the Legal Services Corporation. Most of the others come from city and state agencies such as the Department of Housing Preservation and Development and the Division of Housing and Community Renewal or from clerkships in Housing Court or other parts of the court system. Conventional wisdom among the lawyers who frequent Housing Court has it that state and city politicians—mostly liberal Democrats with more tenants than landlords among their constituents—also influence the selection.
As a result, today the Housing Court system functions as a kind of social service agency for the least responsible poor. Its primary concern is preventing the eviction of tenants who cannot or will not pay their rent. "This is the court of last resort," one lawyer says. "All society's problems end up here."
But like so many attempts at social engineering gone haywire, this well-intentioned bias has had the unintended consequence of making life worse for working-class citizens like Sookdeo S., who are trying to improve their lot. By stacking the cards in favor of the indolent and the irresponsible, New York's Housing Courts have imposed the costs of their good intentions on those with one foot on the ladder of social mobility, often knocking them off the ladder altogether. At the same time, the courts have destroyed one of the crucial informal mechanisms of social control that formerly ensured civil behavior and orderly neighborhoods. A tenant once had to pay the rent on time, keep the premises clean and undamaged, and not annoy his neighbors to avoid ending up on the street. Today, for many tenants, this sense of obligation has yielded to a cynical knowledge of just how much they can get away with.
Housing Court is almost an extension of New York City's welfare system. While a quarter of all city renters are on welfare, observers agree that at least half of tenant litigants in Housing Court are welfare recipients. The Legal Aid Society, in an unscientific survey of Bronx litigants, put the figure as high as 90 percent. The Legal Aid lawyers bustling around the courtrooms represent the welfare-state ideology, in which poor tenants are victims who deserve help, no matter the facts of the case, and property owners are all exploiters. In Legal Aid's imagination, the tenant is always a penniless single mother with a crying baby in her arms and a toddler clutching at her skirt, shunted from room to room in the chaos of Housing Court.
In fact, of course, the truly impecunious tenant isn't helpless. He or she can count on public support, both legal and financial. Next to the clerk's window in Manhattan's packed Housing Court are two signs, one offering free legal assistance from a publicly funded eviction-prevention service, with two phone numbers to call, the other giving the Legal Aid Society's number. But there's no need to spend a quarter on a call: Legal Aid has an office in the court building.
On the financial side, tenants who claim hardship can apply to have back rent paid by the city's Department of Social Services, though only once a year. And, under a 1991 court decree in a case called Jiggetts v. Grinker, the state must make up the difference when a welfare recipient's shelter allowance isn't enough to pay his rent. The annual cost of complying with this order has already hit $20 million. (See "Government by Decree: The High Cost of Letting Judges Make Policy," City Journal, Summer 1994.)
If the tenants seldom resemble the piteous Victim of melodrama, neither do the landlords have anything in common with the sleekly prosperous, mustachio-twirling landlord who's the villain of the piece. While there are undoubtedly egregious slumlords, in very few cases I observed was a landlord clearly at fault. And while there are wealthy real estate magnates, the landlord in Housing Court is most often a man or woman of modest means who, like Sookdeo S., may be renting a part of his own home to help pay the mortgage, taxes, and other expenses. And he is usually in far more peril than the tenant: if he can't pay his bills, it's his own home he stands to lose. The tenant can always take off.
A study of the owners of New York's rental housing that the Rent Stabilization Association commissioned in 1985—still considered representative—reveals just how far from the truth the stereotype of the landlord really is. Many owners worked full-time jobs and lived in their buildings. Thirty percent reported household incomes of less than $20,000 in 1985, and 9 percent had incomes of less than $10,000. More than half had incomes under $40,000—quite modest for a family in New York City. Less than onequarter of all owners had household incomes over $75,000.
They're an ethnically diverse group, too. Blacks owned 14 percent of the buildings in the survey, Hispanics more than 8 percent. (Puerto Ricans, however, owned only 3.6 percent.) Asians owned 3.6 percent of rental buildings, a number that's doubtless increased as recent immigrants have bought property. Fewer than half of owners were born in the United States. Over one-quarter were born in southern and eastern Europe, and more than 5 percent in Caribbean or Latin American countries.
Undeniably, the ownership of residential property continues to serve as a stepping-stone to financial security for working- and middle-class immigrants and minorities. Fully 60 percent of owners had only one building. Forty-four percent owned ten apartments or fewer, and more than three-quarters owned 40 units or fewer. Less than 10 percent owned 100 apartments or more. Over a third of all owners—and 60 percent of those who own ten or fewer units—bought their buildings primarily to use as a home.
These homeowners are the kind of citizens every city needs, the backbone of their neighborhoods. Far from being absentee landlords dispatching agents to collect rent, they and unpaid family members are involved in every aspect of maintaining their buildings. Half of them spent two to four days a week operating their buildings. Most (87 percent) collected the rent themselves; almost as many kept the books themselves. They maintain and preserve their buildings largely by sweat equity, putting energy and time into collecting the trash, cleaning the public areas, doing their own painting, minor plumbing, and electrical repairs, and even repairing leaky roofs themselves.
It's disquieting that the burden of Housing Court's pro-tenant bias falls squarely on owners like these, the strivers who invigorate the economy and contribute to the civic culture. "The ultimate result of present Housing Court policies is to foster an understandable reluctance to invest in New York City residential property," says Dan Margulies of the Community Housing Improvement Program, a landlord organization.
Yet one Legal Aid Society lawyer I spoke with says such people simply shouldn't own rental property. Because the city's Byzantine regulations make it impossible for unsophisticated purchasers of two- or three-family houses to predict their income and expenditures, ownership is an unviable proposition for them, this lawyer argues. New York, he says, is no place for "amateur landlords." In other words: a supposed champion of the poor is arguing, in effect, that ownership of property is a suitable aspiration only for the rich.
A tenant's most common response to charges of non-payment is, "I don't have the money; I need more time." The court's procedures are designed to provide it—in abundance. When an eviction case goes to trial, the landlord faces an almost insurmountable burden of proof—even in the most extreme circumstances. Is a tenant vandalizing the property? The landlord must provide witnesses to testify as to who drew the graffiti or threw the toilet seat out the window. A tenant dealing drugs out of his apartment? There can be people coming and going night and day, but he can't be evicted unless caught in the act.
What happened to one family in that situation is a cautionary tale. Lena B. and her family emigrated from Albania in 1962, and, like many, other Albanian immigrants in New York, her father and brothers immediately went to work as building janitors, handymen, doormen, and superintendents. "The whole family worked," she says, "and we saved and pooled what we had. In a few years we bought a building, then eventually another one, and now we own four small apartment houses."
Mrs. B. is here in Bronx Housing Court with her husband and a cousin, both of whom work in the family's buildings in the north Bronx. Some of their tenants get federal Section 8 housing subsidies for low-income renters; others are employed and self-supporting. The biggest headache, Mrs. B. explains, used to be tenants who didn't pay rent. Now it's drug dealers operating out of the apartments.
"To get them out, you have to prove they're selling from the apartment. But how can you be where the action is?" she asks with a shrug. "We tried videotaping —the activity on the floor, but the court said that wasn't good enough. So we hired private investigators to try to make a sale. But there has to be arrest, prosecution, conviction. I have one old lady: her son stays with her, and he's a dealer. Her home-care attendant tells me about it. I ask the tenant to tell her son to keep away, but she says, 'What can I do? He's my only son.' So we bring them to court, and the judge sees an old lady on crutches. He talks to her, tells her not to let her son live there and to come back in 30 days. And the same thing happens all over again."
Going beyond merely delaying, any competent tenant attorney can win in Housing Court just by manipulating the procedures and laws that already favor tenants. Example: if a landlord doesn't start non-payment proceedings within three months, case law allows the tenant to maintain that the owner deliberately waited to bring an action until so much time had passed that the tenant could not possibly pay the large outstanding balance.
Tenants without lawyers don't lack for training in such maneuvers. Tenant-advocate organizations have maintained information and assistance tables at the entrance to each Housing Court almost since the courts' inception. (Landlord organizations, in contrast, were barred from setting up such tables until 1991, when one such group, the Rent Stabilization Association, won a lawsuit against Housing Court itself.) The tenants' assistance table features literature informing tenants threatened with eviction for not paying rent that "some possible defenses are ... violations that the landlord has refused to repair ... or you tried to pay the rent and the landlord refused to accept it." These are helpful hints indeed, since such claims, true or not, will at least delay matters. just to make sure, the information sheet tells exactly how "to postpone or adjourn your case to another day."
What if a tenant loses an eviction proceeding and the judge orders him to vacate an apartment? The literature assures him that "the judge should give you a set amount of time by which to move, sometimes as long as six months." Even then, "if you have already been evicted by a marshal you can still go to court and fill out an order to show cause" to stop the owner from renting what's described as "your" apartment to a new tenant. Since by this time you may not have paid any rent for as long as six months, an owner might be forgiven for thinking it was his apartment.
On the principle that the best defense is a good offense, tenants often effectively turn the landlord plaintiff into a defendant. A tenant can get the Department of Housing Preservation and Development, the city agency that deals with code violations, to join with him in filing a complaint against the owner. This ploy costs the tenant nothing; if he says he can't afford it, the $35 filing fee is waived. He simply has to request an "order granting leave to prosecute as a poor person"; no one even asks about his income.
Often even the judge will offer the tenant helpful advice in this vein, as I observed on my visits to courts in the Bronx, Brooklyn, and Queens. In the basement of the imposing but run-down Art Deco Bronx County Building on the once elegant but equally run-down Grand Concourse is the Housing Court. The Honorable Ava Alterman, one of the newest judges, is presiding. Peering through spectacles at the 60 or so litigants crowded into her tiny courtroom, she listens to a question about the day's calendar. "Every day is a party here," she says to no one in particular, throwing up her hands and smiling wearily. "Every day it's something else."
The tenant sitting at the table in front of her looks to be in her mid-thirties. Carefully made up, her hair slickly arranged, she wears a shearling jacket and soft leather boots. Nearby, her landlord's lawyer is clearly exasperated and controlling himself with obvious effort. The interpreter translates as the story emerges. Welfare gave her the money she said she needed to pay her back rent. Instead, she used it for a new apartment: a month's security, a real estate agent's fee, and the first month's rent. The arrears are still outstanding. Her welfare caseworker, also in the courtroom, is not pleased: the tenant has perpetrated a fraud on the welfare system as well as the landlord. Judge Alterman orders her to repay the landlord in monthly increments over two years. Meanwhile, she will remain on public assistance. It's unlikely that she will be able to make the payments, and the owner's lawyer expects to see her in court again before long.
In this, as in every hearing about non-payment, Judge Alterman asks, "How is the apartment?" The tenant will usually report some lack of services or necessary repairs. One tenant thinks for a moment and says, "The hallway. The plaster is bad." The judge asks, "Is that the hallway in the building or in your apartment? Do you have to walk by it on the way to your apartment?"
A man who is about to be evicted says he is waiting for his welfare and disability checks and will pay his back rent when he receives them. He now owes $1,632. The judge asks: "Sir, any problems in your building—heat, hot water? How are things in your apartment?" He hesitates, then mumbles, "Not so good." Windows leak and two burners on the stove don't work; the bathroom door doesn't close properly. The judge assures him repairs will be made: "[The owner] has to pay his lawyer every time you bring him back to court." She vacates the judgment to evict and postpones the case to give his caseworker time to work out how much he can pay and when. The owner's lawyer, a young woman wearing a rumpled suit and a dejected expression, rolls her eyes and sighs.
Over and over one hears the same litany. Source of income? Public assistance. How are things in the apartment? ...
In every borough I visited, the same sorts of stories unfolded. Most of the owners in Brooklyn's Housing Court, a depressing series of makeshift courtrooms and crowded hallways in a dilapidated office building, have no lawyers and represent themselves before the judge. On most days, the line of landlords consists entirely of blacks and Latinos.
Judge Marc Finkelstein explains to a tenant who has filed a motion to delay her eviction the advantages and disadvantages of various courses of action. Can she get the money from the Department of Social Services? He tells her where to go for an application. He mentions that she can file a claim for repairs with the Department of Housing Preservation and Development.
Roy C., the owner, looks dejected. A registered nurse, he says he needs the rent for his children's college tuition. He has brought this tenant into court four times already for non-payment and says he's at his wit's end. "The apartment is full of dirt," he says, adding that most of the tenant's counterclaims are for conditions caused by her own neglect. "The sawdust is still on the floor from the last time we tried to fix things up." Mr. C. has already lost $5,700 in unpaid rent but says he would take the loss if the tenant would just "leave me in peace and quiet in my own place."
Marie Michel, a widow who emigrated from Haiti in 1968, spent her savings on a house in Brooklyn's Flatbush area. A nursing-home attendant with two children in college, she hasn't collected any rent from her tenants in eight months. They keep telling her they'll move "tomorrow."
The Queens County Housing Court, located in Borough Hall, is a much pleasanter place, surrounded by grass, flower beds, and trees you can see out of the windows of the spacious and orderly hearing rooms. What goes on inside, however, is no different from what happens in the windowless basement rooms of the Bronx or the airless cubicles in Brooklyn.
Ragore S., a slight, dark man in jeans and a bright, patterned sweater, came here from Guyana 18 years ago. Working as an ophthalmologist's assistant, he had saved enough money to buy a two-family house a year ago. He established his in-laws in one unit and rented the other to the couple he is now trying to evict. They haven't paid their $875 monthly rent for four months, and they are destroying the property. A new front door Mr. S. had installed was torn off its hinges; when Mr. S. replaced it, the new door was torn off, too. "People tell me they do that so when I bring them to court for the rent they can claim something needs fixing," he says miserably. Another owner standing nearby nods and commiserates: "A professional tenant."
Studying the owners' information sheet, Mr. S. says he can't believe it is "so very complicated." He must start by going to a stationery store and buying the various forms he will need, starting with the summonses that a marshal must serve on each member of the tenant's family. Mr. S. must document three attempts to serve the summonses before he can claim it was not possible to do so. He will have to fill out three forms for each tenant and have them all notarized.
"I've got no money for a lawyer," Mr. S. says. "I need it for my mortgage and my family and repairs. It's nerve-racking. I'm intimidated [he pronounces the word slowly, syllable by syllable] by my tenant. And this system bends backward for the tenant." Mr. S.'s father and fatherin-law have come with him this morning, and they nod glumly as he continues: "You work hard because you want to progress in life, not live off someone else. My morals are: I pay my rent and I do the right thing. But these other people . . . " His voice trails off in frustration.
Back in the Bronx, it's 9:30 AM, but the courtroom clock is stuck at 1:25. Much of the action takes place not in the hearing room but in the hallways, where litigants reach compromises and make deals. The building owner and his lawyer are aware of the traps the law lays for them. It takes a month for a marshal to collect back rent, by which time a tenant may have moved out without paying anything. Thus, a landlord will usually settle for less than he's owed rather than risk ending up with nothing.
"My tenant hasn't paid any rent since September," says Jay M., the owner of a small building. (It's now April.) "She owes me $4,000. The Legal Aid people advise her: she says there are necessary repairs, but she never complained about them before."
Tenants trying to avoid paying rent have a set of standard complaints: bathroom tiles are missing; the kitchen floor has cracked linoleum; the tank cover on the toilet is broken; kitchen cabinets need painting. "The judge always asks what needs to be done, the dates are set to do the work, then the tenant isn't home," Mr. M. laments. "She says she had to leave, she had an emergency—no further explanation. I had to make a motion to restore the case to the calendar and seek a warrant to evict the tenant. She misses the court date; then she applies for an order to show cause. The excuse she gives the judge? She couldn't be here because she had 'personal business.' She gets a return date; we're back in court. This place is like prison—they learn how to be better criminals."
Despairing of collecting the $4,000, Mr. M. accepts a stipulation that requires his tenant to pay back half that amount over three months and to move within 30 days of her last payment. If she leaves without making the payments, however, there's little Mr. M. can do.
Francisco R. is a middle-aged Puerto Rican security supervisor who bought a four-family house in the north Bronx. He lives in one apartment and rents the others, one of which he had renovated with his son in mind, "for when he gets married." He installed new appliances, refitted old window sashes, and retiled the bathroom floor and walls. He shows a batch of Polaroids, carefully labeled and dated, showing the freezer door hanging off the refrigerator, gaping holes in plaster and tile walls, and broken window handles. "They're breaking up the place whenever they fight. And she's so dirty. Garbage all over. I spent $8,000 renovating, and now I've got to fix the apartment up all over again. These people here"—he gestures around the court—"don't care."
Some of the landlords done in by Housing Court are elderly New Yorkers who had planned to retire in their homes, supplementing their pensions with rental income. Berenice Boston had to sell her Bronx house because of non-paying tenants. "It took years to make enough for the down payment, then it took nine months to get a tenant to pay rent," she says.
Olivia R., a small black woman in her sixties in a worn beige coat and matching hat, is a former welfare administrator. She and her husband bought a two-family house as a retirement home. Asked if her tenants are on welfare, she says, "In the neighborhoods where we could afford to buy, of course some of them are on welfare."
"We didn't expect this," Mrs. R. continues. "They don't pay the rent, and then they think up these little complaints they never told us about. We take care of the place ourselves, clean the hallways, and take out the garbage. My husband does the handyman stuff. I have my own system for repairs: I give them a list to check off, within ten days things are fixed, and then they sign the list. This tenant, she never asked for repairs, and now she's behind four months. That's almost $2,500 she owes us. She says she's lost her job and she's applied for welfare. Welfare's supposed to issue a check in both our names, to make sure she uses it to pay the rent. But I don't know when we'll see it."
Things are no easier for veteran property owners. Charles W. and his wife have owned four adjacent brownstones in the Bronx for almost 40 years. They are finding it difficult to maintain them. "Five tenants owe me money," says Mr. W. "They're all on welfare. It's been over a year, and I can't get any of them out. How am I supposed to pay my bills?" He's in court today trying to evict a tenant who hasn't paid rent on her two-bedroom apartment for a year. By now she owes him $6,100. "We keep going back and forth," he says. "I get a warrant to evict her, she applies for an order to show cause, and then she doesn't show up, and we start all over."
Dan Margulies of the Community Housing Improvement Program sums up the injustice of the Housing Court system when he asks: "Why is it that someone who steals $6,000 is called a thief, while someone who steals a $600 apartment for ten months is a member of a protected class whose rights are threatened?"
To begin leveling the field, Housing Court judges themselves could adopt fairer procedures. For starters, they should act as impartial referees rather than advocates for tenants. That means imposing sanctions on tenants who miss court dates and ending the practice of prompting tenants for complaints about apartments. Judges should also set a strict limit on the number of orders to show cause in any given case.
One way to reform the system is to make the appointment process for Housing Court judges more open, replacing the advisory council with a nonpartisan committee of the Bar Association, which would establish criteria for judgeships, review candidates' qualifications, and see that they do not come, as they do today, primarily from the ranks of poverty professionals.
A more radical proposal is to abolish Housing Court as a separate entity, folding its caseload into the larger Civil Court. Judges can hardly be expected to retain perspective when they hear only one kind of case. The need to analyze contractual obligations between the business person and the consumer gets lost when the entire universe seems to consist only of landlords and tenants. Hearing a mix of civil cases could be expected to lessen the tolerance for multiple adjournments and orders to show cause that plagues the system today.
The State Legislature is considering a reform that would go to the root of Housing Court's unfairness: requiring tenants to deposit disputed rent in escrow until their case is resolved. At present, a tenant can live rent-free for months even if his claim has no merit, and a landlord has no assurance that he'll be able to collect back rent even if he prevails in court. A law requiring deposit of disputed rent would correct this imbalance without letting landlords off the hook for legitimate complaints. Some observers estimate that such a requirement would reduce Housing Court's caseload by as much as 60 percent from the current 125,000 cases heard each year.
The State Senate has already passed a bill that would require tenants to deposit money with the court on applying for a second order to show cause. Similar legislation is pending in the Assembly, but that body, dominated by liberal Democrats, is unlikely to pass it on its own. Governor Pataki should weigh in with a strong push to enact a tough rent-deposit provision.
Such legislation would go a long way to ease the plight of people like Easton L. A tall, heavyset black man in his late thirties, Mr. L. is a nursing attendant who came to America from Jamaica at age 12. He lives in a two-family house in the Bronx with his wife, an office clerk, and their four-year-old triplets. They manage by pinching pennies: "You set goals and you go for it." But three months ago their tenant stopped paying his $550 rent. "He lost his job," Mr. L. says, 'but I can't do anything about that. They're going to foreclose on the house if I can't make the mortgage payments, and if he don't pay the rent, I haven't got the money. I went to the police, and they told me about tenants' rights. It seems the owner's got no rights."
He's understandably bitter. "You save your money, you work overtime, you do whatever it takes, you get tired. My tenant, he sits home and relaxes. I'd like to be able to do that too." By restoring fairness to New York City's Housing Court, the Legislature would give upwardly mobile working-class citizens like Easton L. a reason to feel they have a stake in the city's future.
