Broker Fees Lawsuit; Security Deposits & More Housing News

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Brian Lehrer: It's The Brian Lehrer Show on WNYC. Good morning, everyone. We'll have Senator Gillibrand on today's show with our monthly Call Your Senator segment. You know, she's trying to get President Biden to declare the Equal Rights Amendment ratified before he leaves office. That would set off a constitutional fight probably at the Supreme Court, but Senator Gillibrand apparently wants that fight and thinks, according to the letter of the law, the ERA has been ratified. We'll also get her take on this bombshell intervention yesterday from President-elect Trump and Elon Musk blowing up. You've been hearing this on the news if you've been following any news this morning, blowing up a bipartisan government spending deal at the last minute after it had been reached by Speaker Mike Johnson and Democratic leaders. So many implications, including many government agencies possibly shutting down tomorrow night. Johnson possibly losing his speakership over it, and more.

We'll have an advice segment today for anyone dealing with health insurance delay or denial issues with the public outcry over those practices recently. We'll have healthcare navigator Elisabeth Benjamin from the Community Service Society of New York to explain how to effectively appeal insurance company denials even while the current system remains in effect because it doesn't look like it's going anywhere politically anytime soon.

We'll start today with more New York City housing news, especially a new battle over landlords who don't return your security deposits- I just got your attention, didn't I?- after you move out. Some other issues. It's our WNYC and Gothamist housing reporter David Brand joining us for this. Hi, David. Always good to have you on the show. Hey there.

David Brand: Hey, Brian. Thanks for having me.

Brian Lehrer: Your article on Gothamist is headlined, "Nearly 5,000 New York Renters filed complaints for missing security deposits. Here's how to get yours back." What's the issue there? There's 5,000 in New York State since the start of last year. That's your stat. Why are there so many complaints?

David Brand: This is an issue I'd heard about kind of anecdotally from friends, from people I've met in the course of my reporting, even from colleagues, that they paid their deposit when they moved into the apartment. They left the apartment in good condition. The landlord in many cases even said, "All right, this looks good. I'll return your security deposit," and then never did. These are fees that amount to the one month's rent. Talking like $2,500, $3,000.

Then I wanted to find out okay, how common is this? So I contacted the attorney general. They have a complaint form, and they'll help people try to resolve these issues with their former landlord. I found out, as you said, about 5,000 people since the start of last year, more than 9,000 since the start of 2021. Talking to housing experts and attorneys, probably just a fraction of the true number because a lot of people just walk away and say, "Okay, this is a substantial amount of money I'm missing, but how do I get it back and is it worth the fight?"

Brian Lehrer: What are the rules around security deposits? Your article explains them.

David Brand: Well, the rules are pretty clear. In 2019, the state lawmakers passed a package of legislation affecting landlord-tenant relations. One of those laws is that a security deposit can be no more than one month's rent and that at the end of a tenancy, the landlord has to return the money within 14 days or return an itemized list of deductions of why they are keeping the money or why they're keeping a portion of the money. Many tenants do leave apartments in poor condition, and a lot of times the landlord is entitled to keep that money to make repairs and fixes, but the rules state they just have to inform the tenant why within two weeks.

Brian Lehrer: Yes. I was going to say that landlords will say plenty of tenants leave apartments damaged and they, the landlords, have rights here, too, and, "Oh, we landlords, we always get tarred as being evil when are tenants who damage the apartments," not just leave them with normal wear and tear. Just like they'll say, "Hey, there are landlords who really aren't paying their rent," or, "Really are harassing other tenants in the building and stop putting everything on the landlords." Just acknowledging that there is that side of it.

We're going to open up the phones on this. We're also going to get to some other housing news with David Brand. Even after City of Yes, that big rezoning package passed City Council Mayor Adams wants to take a next step now and have another charter revision commission, as it's called, to change what is in effect the constitution of New York City to do something else with housing, we'll get into that.

Listeners, tenants, landlords, anyone else who has a security deposit story or question for David Brand, our housing reporter. 212-433-WNYC. 212-433-9692. Call or text. Is there a new push for reform of policies or practices around this, or is this, David Brand, Enterprise reporter, putting the spotlight on something that you've just been hearing about from a lot of folks?

David Brand: Well, I think this started out as some enterprise reporting just kind of explaining the process, finding out how common this is. Then in the course of that reporting, have talked with a number of tenants who had this problem, and actually a number of tenants who had this problem with the same landlord, and so that led to another story about the process that they've had to go through to get their money back. Combined, about $13,000 across 5 tenants spoke with the attorney general. They've received 14 complaints about one particular landlord.

What that reporting shows is just how common this is and how many people even go through the process of getting it back and aren't successful. I don't think there's been a push yet to change the rules or legislate this any further, but I think this reporting shows that I've been doing, that a lot of people, even when they go through a pretty onerous process that involves making that complaint to the attorney general, going to small claims court, preparing documents to show a judge, even when they get a judgment in their favor, they might not actually get the money.

Brian Lehrer: How could that be?

David Brand: Well, the burden is on the tenant. If the landlord doesn't just outright give them the money after a judge rules in their favor, then it's up to the tenant to get a marshal to intervene on their behalf. They pay the marshal a fee to try to seize the money from the property owner's bank account. In some cases, maybe the property owners changed the bank account or the tenant didn't have quite the exact name on the bank account so the marshal can't get the money, and so they have to restart the process if they want to keep this going.

Brian Lehrer: All right. You ready for a question from a listener?

David Brand: Definitely.

Brian Lehrer: Here is Daniel in Manhattan. Daniel, you're on WNYC with our enterprising housing reporter David Brand. Hi, Daniel.

Daniel: Hi. My big question is, what do we do about the commercial deposits? I just had a restaurant for eight years. We shut down because the rent had doubled. When we left in perfect condition, the landlord said, "I never give back rents." It was $15,000. We went back and forth, and I had to tell him I was going to take him to court. He still didn't believe me. He only gave me $5,000 of the $15,000. I did report it to the attorney general. Never heard Anything back. What is the aspects of not only just residential but what about commercial? Because this is really a serious amount of money. Why isn't it a criminal activity when they don't give back money? Robbery with a pen or a paper is still robbery [unintelligible 00:08:28] [crosstalk]

Brian Lehrer: Great question. I'm so glad you brought commercial rent into it. I'm sorry to hear that that happened to you, David, Same rules?

David Brand: Yes, that's a lot of money. I'm sorry that happened to you. I don't know the rules as clearly when it comes to commercial rents and commercial security deposits. I don't know if it's spelled out as clearly as it is with these residential agreements. I would say that small claims court is for amounts $10,000 and below. You were looking, Daniel, for $15,000. That would be too much for small claims court, so you would have to sue, I think, in civil court in the borough that this agreement was in. I guess maybe if you're still looking for $10,000 now because you said the landlord gave $5,000, that could be something for small claims court.

I wonder, did the landlord give any reason? Was there damage, was there any justification, or was it as you said, they just said, "Oh, we don't return"?

Daniel: He just flatly set out, "I don't return anybody's deposit." Like it's his money.

Brian Lehrer: What?

Daniel: Just flatly right out said, "No. No. No."

David Brand: You paid your last month's rent? I mean, sometimes people just skip out on last month's rent.

Daniel: Oh, yes. No, no, no, no. He just pretty much once we left as a [unintelligible 00:09:47] wrap, as they say, back to its normal condition. He just took the keys and locked us out and just laughed and said, "I don't ever give back deposits."

Brian Lehrer: That's a terrible story. If Daniel could prove that in court, would it be a criminal violation, David? I don't think you're a lawyer, but--

David Brand: I don't know. Like Daniel said, why is this not theft? Why is this a civil matter? I don't know the answer to that. I don't think anyone who I've talked to has been able to give like a clear answer on that. It's a lot of money. Like you said, if Daniel could prove that, if there are emails or text messages or recordings, that would probably be pretty strong in court.

Brian Lehrer: Daniel, thank you. Good luck with that. I hope this was at least a little bit helpful. Kind of a related text, listener writes, "I just don't pay my last month and tell them to use my security. Can you do that?"

David Brand: You can do that. A lot of people do that. It's not recommended because it could end up hurting your credit score if the landlord were to go after you for that money. Like, say, for example, you didn't pay your last month's rent. You said, "Keep my security deposit," but then there were problems in the apartment that you left behind that actually required the landlord to spend more money to fix, they could sue you for that money and it could hurt your credit score. They also, I'm sure, wouldn't want to be a reference for future apartments if you needed to provide references, for example.

Brian Lehrer: Right. Is there a standard? You know what I mean? Is there a certain amount of damage or a way to quantify damage or certain kinds of damage that legitimately would get you denied all or part of your security deposit? Is that in the law?

David Brand: It's relatively vague. It can't be just normal wear and tear, they say, so it can't be just like nail holes in the wall or scuff marks that could be easily painted or spackled. That's kind of why the landlord has to provide that itemized receipt of deduction saying, "You left a huge hole in the wall. I'm going to need to repair that. That will cost X amount of money. That's why I'm withholding that." It is open to interpretation.

People I've talked to, either landlords, tenant advocates, housing experts, they say you should talk to the landlord before moving out and say, "Can you do a walkthrough of the apartment and show me what I might need to fix so we can avoid some security deposit problems?" If you're in a big building, you can ask the super and say, "Hey, I have a few nail holes here. I'm going to have to spackle and want to paint over that to avoid any fees. Do you know what paint you use? Can you give me a small can of paint so I could just touch it up before I move out." Just avoid any kind of problems like that.

Brian Lehrer: Now that we heard that horror story from Daniel about his landlord, who says, "I never return security deposits," just said that to his face, Emily in Huntington has a suggestion, I think. Emily, you're on WNYC. Hello.

Emily: Oh, hi. Thank you. I've done this before. Put your phone on voice memo and you can very surreptitiously record somebody. They don't have to know. Not that that will shorten the process, but as your guest was just saying, having recordings, that's a really easy way to get one. If you do that with the walkthrough, all the better.

Brian Lehrer: Emily, thank you very much. Yes, of course, there aren't many landlords who are going to be as brazenly transparent as the one the caller Daniel was describing. What about photos, David? It's in your article. What kinds of photos should a tenant routinely take of the apartment they're leaving?

David Brand: Well, they should take photos on move-in day and maybe if there is a problem, just take a photo of that right away. Talk to the landlord or the property manager, but take photos so you also know what it looked like when you're moving out. You say, "Oh, right, this was slightly different, I'll fix that." Then, when you move out, take photos again so you can prove this is what it looked like when I moved in. This is what it looked like when I moved out.

Like Daniel said, "wrapped" in good condition, clean, no big holes, no problems that the landlord can't say later that's the reason that they withheld the money. Could also take videos. Something that is recommended by housing attorneys is ask the landlord or the property manager to do a walkthrough and even sign off and say, "Everything is in good condition. The tenant will receive their security deposit back after moving out."

Brian Lehrer: Really interesting about taking the photos upon moving in, not just upon moving out. I once brought a car in for inspection and the service station took photos of little minor spots of body damage that were on the car before they took it in for an inspection.

David Brand: That's smart, yes.

Brian Lehrer: Of course, they weren't checking the body, they were checking the engine under New York state law. They took the photo on your way in so you couldn't turn around afterwards and say, "Oh, look, you dented my rear left door," or something like that.

David Brand: Yes, you can't sue them.

Brian Lehrer: Yes. Really good advice for tenants that almost nobody probably thinks of.

David Brand: Well, it's like all the hubbub of moving into an apartment that could be really easy to forget to do, but if you could take a moment and just walk through the empty apartment and take some photos and videos. You mentioned bringing your car to the mechanic and them taking the Photos. Reminds me of the advice you get when you rent a car is to do a walk around the car, make sure there's no dents, that when you return it, they say, "Oh, you owe us $500 for that."

Brian Lehrer: Yes. Listener texts, "Took my last landlord to small claims court in Albany. He kept $400 for no reason. We split it $200 each out of court." Is small claims court effective? That is in your article?

David Brand: It can be effective. I mean, it can take a long time. It's pretty clear if the landlord didn't give the money back or the reasons why and the tenant does sue in small claims court, they probably will win. Like I said earlier, it doesn't mean they're immediately going to get the money. Talking to the landlord out of court and trying to do it that way could be more effective. In this person's case, they negotiated. I'm sure they wanted the full amount of money, but maybe they just decided," I'm going to cut my losses, take the $200." It's not ideal. That person probably should have been entitled to the full amount, but I guess they decided the full court process wasn't worth it.

Brian Lehrer: Let's get a landlord call in here. John in Brooklyn, you're on WNYC. Hi, John, thanks for calling.

John: Hi, Brian. Hi, David, how are you?

David Brand: Hey, John.

John: I'm glad it was mentioned without a landlord having to mention it, which is that sometimes tenants leave without paying the last month's rent like they're supposed to. They don't get permission to do it. That's one thing in and of itself. If the apartment is left in good condition, you could argue, "Okay, well then it's an even wash. I don't give them back to security. They didn't pay the last month's rent." Doesn't make it right, but you could say it's an even wash.

Just recently I just had a tenant that did that and they also left tons of holes in the apartment. They had a baby girl, so they painted all the walls pink. They didn't pay the rent, which wipes out me not giving them the security deposit, but now I have to have someone on my own expense, patch up holes, paint the walls from pink to white, clean up, stuff like that. They even left me food in their refrigerator. It's okay to bash landlords, but you got to hear the other side of it also.

The other guy who called with the commercial security deposit, that is thievery. He needs to get his money back.

Brian Lehrer: Yes. John, is there any recourse for you in the situation when a tenant doesn't pay their last month's rent and then does leave an apartment damaged?

John: It's like David said, I could report it to their credit bureau, I could make a file in housing court and then whenever their Social Security number gets run, it comes up as a hit. Just like tenants go into small claims court, it's a process. Is it worth it for one month's rent? That's the answer.

Brian Lehrer: John, thank you, and good luck out there. If we aren't infuriated enough by some of these stories from the tenant side, I think Jack in East Village is going to get you infuriated a little more. Jack, you're on WNYC. Hello.

Jack: Yes. Hi. Thank you. At the end of the year, each year I get a statement from my landlord. It's a 1099-INT. What that is, that's interest on my security deposit. Now, I don't get that interest, but I get the tax implications from it. How does that work? B, why don't I get the interest that they're earning on my security deposit?

Brian Lehrer: Good question. The interest goes both ways, right? David?

David Brand: Thank you for that call. I hadn't heard about the tax implications of the interests on the security deposit. What I do know is that after you move out and get your security deposit, you are entitled to the interest. I think this is honestly not that common that people pursue this or even know about it. You should be entitled to the interest that accumulated on your security deposit check, less 1%, which is to cover additional expenses for the landlord over the period.

I was talking to somebody not that long ago who had lived in their apartment for 30 years and said that they are excited when they finally move out that they should be entitled to a few grand in insurance on top of the security deposit. I had not heard of the tenant actually getting taxed on that interest each year, though. That's really interesting to learn about.

Brian Lehrer: Last thought on this topic. Listener writes, "I'm a tenant attorney and know how to get security deposits back, as that's a very common question we get from clients. However, the last time I moved, it took an inordinate amount of my time and resources to get my security deposit back. There's also no right to counsel in small claims court, which is where a suit for a security deposit needs to be brought so I imagine there's a large number of people who are forced to just let the money go."

Even a tenant attorney who does this for a living, wound up spending what they call an inordinate amount of their time and resources to get their security back.

All right, next topic with our housing reporter David Brand. Let's look at Mayor Adams's recent proposal, which City Council apparently doesn't love for other reasons, over his new charter revision commission to address what he calls the generational housing crisis, which I think everybody will agree with that characterization. We just had City of Yes so what is this next thing that Mayor Adams is looking to do?

David Brand: Well, Mayor Adams has established a new Charter Revision Commission tasked with taking on housing in the city charter. The city charter is basically the constitution for the city. It's our governing document, and it spells out rules about a lot of stuff, including the process for approving rezonings and new development in the city. This, basically task force of 13 people is going to be reviewing that and holding public hearings to find out what members of the public want to see and maybe community board members and other local leaders to weigh in. Then they're going to ultimately issue some proposals that New Yorkers will see on the ballot next election. We don't quite know what it's going to be. It's going to be about the housing and rezoning process, but I guess TBD on just how extreme they're going to go.

Brian Lehrer: Yes. At this week's weekly mayoral news conference, our colleague Elizabeth Kim asked the mayor about this charter revision commission, particularly City Council Speaker Adrienne Adams's belief that the mayor is weaponizing the charter revision Commission to take away power from the council. Really just doing this so they can't place their own charter proposals on the ballot, like they want to have new rights to approve or deny commissioners who the mayor wants to appoint.

The mayor has the right under the city charter to supersede that with any charter revision or ballot proposals of his own. Here's part of the mayor's answer, which really has to do with housing less than politics. When he was asked why is he ruffling council's feathers this way and trying to jump ahead of them again. He did the same thing this year with another charter revision proposal or set of proposals from him.

Mayor Eric Adams: City of Yes is putting us on a pathway of now doing a charter commission to see what else we need to do so that we can build more housing for the people of this city, and so we need more and we're going to do that. That is, we know we have a generational housing crisis. I would think everyone would say keep doing whatever we can to get people in their homes. Too many people are not in their homes. Too many people are housing insecure. Too many people are growing up in shelters. We need to do more. We may do this charter commission. Then finally we have to do something else. We have to go up to Albany and get something else done. It's a continuous flow on what we need to do.

Brian Lehrer: You know, David, I don't think anybody would disagree with anything in that statement by the mayor. Right? The housing crisis is that serious. They do need to attack it on multiple fronts. Zoning changes like City of Yes, ballot questions if he gets the right thing on there, that the public wants, changes in Albany, which he mentioned at the end of the clip. Probably no listener right now would disagree with any of that so why is it controversial?

David Brand: Well, maybe we should take a step back and explain what this Charter Revision Commission could potentially do. I guess. Right now, in the city charter, it outlines the specific steps for any rezoning proposal. That's to change the land use rules to be able to build bigger or to build residential on what's currently a commercial space. This is called the Uniform Land Use Review Procedure, you hear ULURP a lot. Basically, these rules say, okay, the first step is the application is submitted. The community board has public hearings and then weighs in. The borough president weighs in. Then it goes to the city planning commission for a hearing and for a vote. Then it goes to a city council committee. Then, finally, after all that, goes to the city council for a binding vote. This is a month-long process. There's a lot of stumbling blocks, I guess.

Also, this is where individual council members may wield their very biggest powers, I guess, their most power. That's because of a tradition here in our city council. It's called member deference, where the full council will side with that local member on rezoning applications in their district. If a council member opposes it, then it's pretty clear the rest of the council is going to vote it down. The developer might as well just stop right there and just kill it and stop this process and all the fees associated with it. The Charter Revision Commission could be reviewing components of ULURP. I think it's highly doubtful that they would just end or propose ending that, but try to tinker around with some of the requirements that are currently part of the process to make it more streamlined.

Similarly in Chicago, we call it member deference. They call it, I think aldermanic preference, where HUD, the Department of Housing and Urban Development said that that was actually holding up affordable and fair housing projects in Chicago. Now there's legislation to bring a vote even if the local member doesn't support it. Maybe that's something we could see here in New York City. That's what makes this so interesting.

Brian Lehrer: Yes. That's a complicated question, right? What's in the interest of the people? Is it to have their local representative, who they elected and who's most concerned with local interest in a particular neighborhood, have the sway and the say over what kind of development project takes place in the neighborhood, or should it be the whole city council looking at any individual neighborhood, maybe through the lens of citywide interests?

David Brand: Yes. That's a great question because there is layers here. There are some council members in some communities who will just say no to everything. Then there are others who will say, "No. We want to have an active role in this planning process because we know our communities, we know the type of housing. We know we need much more affordable housing." To cut them out completely, there's the risk of just totally being overridden, overrun, or overwhelmed, I guess.

Brian Lehrer: By the way, on City of Yes, now that it's passed, you and I talked about this before it passed when it was being debated. I want to get your take because I think the listeners will find this interesting on how it turned out in one respect. I think they were considering what they call as-of-right development. That is, you don't need any special zoning from the city on an individual project, meaning you don't have to put any affordable housing, below-market-rate housing, in at all. You can just use your right to that property to build whatever you want there. That City of Yes was going to include, as-of-right development for anything up to five stories. Only if you built more than five stories, depending on the neighborhood, would you even have to consider asking for permission by including a certain percentage of below-market-rate housing. Is it in City of Yes like that, the way it passed?

David Brand: Yes. I think that's basically correct. Like you said, depends on the neighborhood. What the city council negotiated with the Adams administration was now projects above a certain square footage in what they call transit-oriented development, so new projects located near train stations and train lines, projects above 50,000 square feet. We'll say 50 units, basically, now have to include a percentage of affordable units. The council is touting that as the first time ever there's affordable housing requirements in these lower-density areas close to transit.

Brian Lehrer: How much cynicism are you hearing about that provision? I know when we were covering City of Yes, we definitely heard from tenant advocates who say this really isn't going to do anything to lower prices or even significantly slow the growth of rent prices in New York City. It's mostly a giveaway to the developers whether or not it's intended to be that.

I wonder if that's a lot of what you're hearing or if evidence indicates that it's going to turn out to actually be that. Based on what you just said, I could imagine the scenario where we're going to see a lot of buildings go up that are just below that square footage limit.

David Brand: Yes. That's definitely a possibility. That is something that especially tenant groups and affordable housing advocates will point out that this didn't go far enough to mandate affordable housing. Then, on the other side of the coin, the argument that this is the first step and this is a building block and now we could see more affordable housing and more incentives for affordable housing. Really what we just need right now is all kinds of housing.

Brian Lehrer: Last thing, and in a way it cycles back to our first topic, which is security deposits, at least indirectly, because last month, as you've reported on, as we've covered on this show, City Council passed a bill spearheaded by Council Member Chi Ossé that would abolish broker fees for tenants who move into a new home. Answer an ad where there's a broker fee involved. Now it looks like the real estate industry, as represented by the group REBNY, is going to court to try to block that end of tenants' broker fees law, which would put the broker fees entirely on the landlords.

Just to remind everybody, here's Council Member Ossé on this show addressing the argument that if landlords were required to pay broker fees, it would result in higher rents because they would bake them into those rents. Council Member Ossé replied to that concern on this show.

Council Member Ossé: The average upfront cost of moving into a new apartment in New York City is over $12,000. If you're a single mother, a union worker, someone trying to get out of a domestic violence situation, or a family that's trying to grow, and you don't have $10,000 on hand to move into a new apartment, you are trapped within a current apartment that you're in, you're trapped within a current apartment where your landlord's trying to increase your rent so you would rather pay a broker fee in that small case that it's baked into a rent over 12 or 24 months, rather than having to save multiple paychecks to move out an apartment immediately.

Brian Lehrer: Do you understand that argument? Give us very briefly, then we're going to be out of time, REBNY's legal objection to the broker fee bill.

David Brand: Sure. Like you said, similar to security deposits, it's just another upfront cost. You talk about New York City excellence. I was with a friend recently who lives in Kansas City and explaining to him this legislation, he's like, "Wait, so is the broker fee a tax? Does it go to the landlord or does it go to the city somehow?" I said, "No. This is a uniquely New York thing where the broker, who's usually not hired by the tenant, gets this big commission from a tenant before signing the lease." Ossé's bill would instead shift that cost to whoever hires the broker, which is almost always the landlord or the management company. That was passed in November. Mayor Adams didn't sign or veto it within 30 days so it officially became law on Monday.

Big surprise here. The Real Estate Board of New York, which represents landlords and real estate brokers and brokerages, sued on Monday to try to block this from taking effect. Their lawsuit has three main components. They make a freedom of speech argument, First Amendment argument, saying that brokers won't be able to do what they call open listings, where you take a listing, even if you're not officially hired by a landlord, and you post it on some online listings platform. A lot of the platforms already ban those kinds of things, but maybe like Craigslist, and then you communicate with the tenant, show them the apartment, and get the fee that way.

The second is saying that it violates existing contracts because a lot of landlords, especially bigger companies, have exclusive agreements with brokerages where, in that agreement, it says the tenant will pay the fee to the broker. They say that this will violate those contracts.

Then thirdly, they. It's a jurisdictional issue. They say actually the city doesn't have the right to legislate this, that this is a state issue. We'll see. People I talk to are skeptical, I think, of the First Amendment and also the contracts issues in this legislation. Say they might have an argument with the state jurisdiction because the state's Department of State licenses brokers. We'll see. The city passes laws all the time. We'll see what happens.

Brian Lehrer: Not supposed to take effect even until June, right?

David Brand: Right. Right.

Brian Lehrer: We'll wait to see if the courts put it on hold. All right. WNYC housing reporter David Brand, always so much to talk about, obviously, on the housing beat. Thank you for filling us in on so much.

David Brand: Thanks a lot, Brian. Have a good holiday.

 

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