By Brandon Zlotnick

In a case of first impression, Supreme Court, Cortland County has held that a provision of New York State law that prohibits housing discrimination based on lawful source of income is unconstitutional, as a violation of the Fourth Amendment, to the extent that it requires landlords to accept vouchers under the federal Housing Choice Voucher Program, otherwise known as Section 8.

In 2019, New York State amended the state’s antidiscrimination law, the New York State Human Rights Law (“Human Rights Law”), to prohibit the refusal to rent housing accommodations to any person based on his or her “lawful source of income,” New York Executive Law § 296(5)(a)(1). The State defined “lawful source of income” such as to include “any form of federal, state, or local public assistance or housing assistance including . . . section 8 vouchers . . . whether or not such income or credit is paid or attributed directly to a landlord.” Executive Law § 296(36).

However, to accept a Section 8 housing voucher as payment for rent, a landlord must agree to participate in Section 8 by entering into a Housing Assistance Payment (“HAP”) contract with a Public Housing Agency (“PHA”). A HAP contract must be in the form required by the United States Department of Housing and Urban Development (“HUD”). The form HAP contract requires a participating landlord to consent to inspection of “the contract unit and premises at such times as the PHA determines necessary.” Such contract also requires the landlord to provide the PHA, HUD, and the Comptroller General of the United States “full and free access to the contract unit and the premises, and to all accounts and other records of the owner that are relevant to the HAP contract,” including access to “any computers, equipment or facilities containing such records.” The HAP contract does not require the entity conducting a search of the premises or records to obtain a search warrant prior to conducting the search.

In People by James v. Commons West, LLC, 60 Misc. 3d 446 (Sup. Ct. Cortland County 2023), the state attorney general’s office sued landlords in Ithaca for violating the Human Rights Law by refusing to accept Section 8 vouchers. In that case, Supreme Court, Cortland County held the Human Rights Law unconstitutional insofar as it required landlords to accept Section 8 vouchers, because Section 8 participation requires landlords to enter into HAP contracts, which, given the language in the HAP contract, compels such landlords to authorize warrantless searches of the rental property and the landlord’s records. This was found to violate the Fourth Amendment of the United States Constitution, which provides,

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

U.S. Const. Amend. IV. Based on a New York Court of Appeals decision from the 1980s that had found that laws authorizing inspections of residential rental properties without either the consent of the owner or a valid search warrant violated the Fourth Amendment, Sokolov v. Village of

Freeport, 52 N.Y.2d 341 (1981), Commons West found that the Human Rights Law’s requirement that landlords accept Section 8 vouchers violated the Fourth Amendment, because it required landlords to consent to warrantless searches of their properties.

The attorney general’s office then moved to renew, arguing that there had been a change in the law since the initial decision in Commons West that remedied the constitutional defect. The same court, in People by James v. Commons West, LLC, 224 N.Y.S.3d 364 (Sup. Ct. Cortland County 2024), found that there had been no valid change in the law, and, even if there had been, landlords would have remained required to consent in advance to warrantless inspections of their real property and records, so that the Fourth Amendment would have still be violated. The court noted that the attorney general’s office’s counsel had characterized the landlords’ objections as nitpicking, and the court forcefully held, “The US Constitution may not so easily be disregarded,” and “[t]he means of achieving any policy goal through law, no matter laudable, must comply with the Constitution.” Id. at 372. The court commented that the constitutional violation could be avoided in the event that federal regulations were amended such as to replace, in the HAP contract, “the requirement that landlords provide advance consent for all such searches with a requirement that all searches or inspections occur only with the consent of the landlord or pursuant to a valid search warrant.” Id.

The attorney general’s office has appealed the decision in Commons West to the Appellate Division, Third Department, though it has not yet filed its opening brief in the appeal.