Building Owner Heating Obligations as Heating Season Begins

During the previous “heat season,” the Department of Housing Preservation and Development (HPD) fielded 232,621 heat complaints, an increase of 8.1 percent compared to the previous heat season. The current heat season begins on Oct. 1 and continues through May 31, 2020. During this time period, residential building owners with tenants are required by law to provide heat and hot water to their tenants.

Heat and Hot Water Requirements

Building owners are legally required to provide heat and hot water to their tenants. Hot water must be provided 365 days per year at a constant minimum temperature of 120 degrees Fahrenheit. Heat must be provided between Oct. 1 and May 31—“heat season”—under the following conditions:

Day. Between the hours of 6 a.m. and 10 p.m., if the outside temperature falls below 55 degrees, the inside temperature is required to be at least 68 degrees Fahrenheit; and

Night. Between the hours of 10 p.m. and 6 a.m., the inside temperature is required to be at least 62 degrees Fahrenheit. Local Law 86 of 2017 removed the outdoor temperature threshold for overnight heating. Owners had been required to heat buildings overnight when the outside temperature fell below 40 degrees. Now, regardless of the outside temperatures, buildings will be required to heat units to 62 degrees during overnight hours in heat season.

HPD’s Response to Heat and Hot Water Complaints

If a tenant files a 311 complaint related to heat or hot water, HPD attempts to notify the building owner or managing agent and may also attempt to contact the tenant to see whether service has been restored. If service hasn’t been restored, an HPD inspector will go to the building to verify the complaint and issue the appropriate violation.

If an owner fails to restore heat and hot water after receiving a violation, HPD’s Emergency Repair Program (ERP) may contract with private companies to restore essential services and bill the owner for the cost of the repairs, plus related fees. The city is subject to laws governing procurement, contracting, and wages that may make such work significantly more expensive than the price owners could obtain themselves. If the property owner fails to pay, the city will file a tax lien against the property. The tax lien will bear interest and may be sold and/or foreclosed to collect the amount owed through the city’s Tax Lien Sale.

During the 2018–2019 heat season:

• HPD inspectors attempted 128,052 heat and/or hot water inspections (this number includes multiple inspection attempts in response to a complaint).
• HPD inspectors wrote 4,553 heat and 5,731 hot water violations, which is a decrease of 4.2 percent and increase of 9.3 percent as compared to the previous heat season.
• HPD completed a total of $1.7 million in heat-related emergency repairs, such as fuel delivery, boiler repairs, or hot water heater repairs. All ERP costs are billed to the property.
• HPD filed 2,229 heat cases in court and collected $1,507,145 in civil penalties related to those cases. An additional $249,250 was collected in heat settlement penalties for fiscal year 2019 (FY19).
• HPD collected $147,626 in heat inspection fees during FY19.

Penalties and Fees

HPD typically starts a court proceeding for all issued heat violations and some hot water violations. The agency can seek the following penalties, effective on the posting date of the Notice of Violation until the date that the violation is corrected:

• $250–$500 per day for each initial heat or hot water violation; and

• $500–$1,000 per day for each subsequent violation at the same building that occurs within two consecutive calendar years, or, in the case of HMC §27-2029(a) (hot water), during two consecutive periods of Oct. 1 through May 31 (heat).

If the owner fails to pay the court-ordered civil penalties, HPD will enter a judgment against the owner and the property and seek to enforce that judgment.

In addition to HPD penalties and fees, the DHCR is authorized to reduce the rent of any rent-regulated apartment in New York City when required heat and hot water services are not maintained. Tenants may file a “Tenant’s Application for Rent Reduction based upon the Owners Failure to Provide and Maintain Heat and/or Hot Water Service(s)” [DHCR Form HHW-1]. If more than one tenant wishes to file a complaint, the tenants must attach a schedule to the HHW-1 form or file “Statement of Complaint of Decrease in Building-Wide Services” [DHCR Form RA-84].

Applications based on lack of adequate heat or hot water must be accompanied by a report from the appropriate city agency finding such lack of adequate heat or hot water. If the DHCR finds that the owner failed to provide adequate heat or hot water, it will order a rent reduction for rent-stabilized apartments and may order one for rent-controlled apartments, and the owner will be prohibited from collecting any additional rent increases until the service is restored.

Where owners may obtain separate fuel cost adjustments for rent-controlled apartments, no fuel surcharge may be collected until one year after the DHCR issues an order finding that services are restored.

Eligibility for Payment in Satisfaction of Civil Penalties

Some owners may be eligible to satisfy the penalty by submitting a $250 payment with a timely Notice of Correction. The Notice of Violation will clearly indicate whether the violation is eligible for payment in satisfaction of civil penalties, based on whether the heat violation is the first such violation of the current or prior heat season, or the hot water violation is the first such violation of the current or previous calendar year. An owner who chooses to submit a Notice of Correction and payment in satisfaction may do so by mail or by using eCertification.

The condition must be fixed within 24 hours of the violation posting (the same as the inspection date), and the $250 payment must be made within 10 days. Payment can be made via credit card or debit card (there’s a 2.49 percent convenience fee for credit cards), or by certified check or money order. If the Notice of Correction and payment aren’t received within the 10-day period, HPD may pursue an order to correct and civil penalties in Housing Court.

Inspection Fee

HPD will charge a $200 fee for all inspections after the first two, if they result in a heat violation within the same heat season or a hot water violation within a calendar year. This fee is in addition to any civil penalties that may be imposed by the Housing Court. This fee isn’t paid directly to HPD, but will be billed to the owner though the Department of Finance on the quarterly bill following the inspection. All unpaid fees become a debt owed by the owner and a lien upon the premises. The tax lien will bear interest and may be sold and/or foreclosed to collect the amount owed through the city’s Tax Lien Sale.