MJ 95-098A
INTRODUCTION
Background
The Department of Housing Preservation and Development (HPD) is responsible for enforcing the New York State Multiple Dwelling Law and the New York City Housing Maintenance Code in the more than 110,000 privately owned multiple residences in New York City. HPD housing inspectors visit privately owned buildings to investigate tenant complaints. When inspectors find conditions that violate the housing standards, HPD issues notices of violations to the owners of the buildings.
The enforcement process begins when a tenant makes a complaint to HPD's Central Complaint Bureau, which operates 24 hours a day, 7 days per week. Roughly 60 percent of the 276,000 calls the Bureau receives every year are from tenants complaining that building owners are not providing adequate heat and/or hot water. The other 40 percent are complaints about inadequate maintenance and repair, such as peeling lead paint, broken plaster, and rodent infestation.
After recording a complaint, the Central Complaint Bureau notifies the appropriate Borough Code Enforcement Office. Code Enforcement personnel attempt to call the tenant to determine whether the problem persists. If the complaint has not been resolved, the tenant is asked when someone will be home to allow an inspector to gain access to the apartment. An inspection is then scheduled, with heat complaints receiving priority.
If an inspector finds conditions that violate the Housing Maintenance Code, HPD sends the building owner a Notice of Violation (NOV), which directs the owner to correct the violations by a specified "Correction Date" and to certify that he or she has made the corrections by returning an attached certification form by the specified "Certification Date." The NOV states that the landlord is subject to penalties if the violations are not corrected and certified as corrected by the specified dates. Additional fines, penalties, and/or imprisonment are also prescribed for false correction certifications. The Housing Maintenance Code classifies violations as either class A, B, or C, depending upon the hazard involved. The time period allowed for correcting the violations and for certifying that the corrections have been made, and the penalty prescribed for not correcting them, differ according to the class of violation. For example, those violations deemed immediately hazardous are designated as "Class C" violations. According to the Housing Maintenance Code, Class C violations must be corrected within twenty-four hours. A summary of the three classes of violations is presented in Appendix 1 of this report.
The City's Administrative Code specifies that to enforce penalties against owners who do not correct and certify the correction of violations, HPD must initiate litigation and obtain judgments against the owners in the Housing Part of the Civil Court. Litigation also must be initiated to penalize owners who falsely certify the correction of violations. Because HPD does not have the legal staff to take landlords to court for every NOV issued, it has difficulty penalizing landlords for not correcting violations. HPD has for the past 12 years unsuccessfully sought State legislation that would grant it the power to adjudicate NOVs in the same way that NYC's Parking Violations Bureau adjudicates parking violations. Such legislation would allow HPD to impose, docket, and enforce civil penalties for violations without requiring it to go to Housing Court to obtain a judgment. HPD officials have told us that prospects for future passage of the bill are dim.
Although it is difficult for HPD to penalize landlords who do not correct violations, the Administrative Code does give HPD authority to correct the violations, to ensure that tenants do not live in dangerous housing conditions. According to the Administrative Code, HPD can correct those conditions that are "dangerous to human life and safety or detrimental to health." To correct dangerous housing conditions, HPD's Emergency Services Bureau can contact the owner about conditions in an attempt to get the owner to make corrections by an agreed-upon date. If the owner does not comply, the Emergency Services Bureau can arrange for the repair to be made. An HPD repair unit makes the smaller repairs; a contractor hired by HPD's Division of Maintenance makes the larger repairs. The Emergency Services Bureau bills the owner for the cost of the emergency repair, adding on a 15 percent administrative fee. If the owner fails to pay for the repair, HPD has the authority to place a lien on the building and collect rents to recover the repair costs. From fiscal year 1990 through fiscal year 1994, HPD billed owners $48.5 million for the cost of emergency repairs; it recouped $34.1 million (70 percent) of the amounts billed.
Tenants can also force landlords to comply with the Housing Code by bringing court cases against their landlords. When a tenant sues a landlord to make repairs, the judge usually orders an inspection, and HPD inspectors assigned to the Housing Court visit the building. In these tenant-initiated actions, in which HPD is named as a respondent, HPD attorneys have two roles: (1) they represent the City's interests, and (2) they assist the Court, educating landlords and tenants about courtroom procedures and each party's rights and responsibilities. Monetary judgments against the landlords that result from such tenant-initiated actions are awarded to HPD, not the tenant. According to the Mayor's Management Report, the litigation process--both HPD-initiated actions and tenant-initiated cases--accounted for 58,019 violations removed in fiscal year 1994. An HPD official stated that, although the exact breakdown is not monitored, the majority of violations removed are the result of tenant-initiated actions.
Some Definitions
The following are definitions of terms used in this report.
Inspection - HPD inspectors visit residences and conduct inspections primarily in response to tenant complaints. If an inspector finds conditions which do not meet codified housing standards, up to three NOVs can be issued, one NOV for each group of violations by particular hazard class, i.e. one NOV lists all Class A "non-hazardous" violations, one NOV lists all Class B "hazardous" violations, and one NOV lists all Class C "immediately hazardous" violations. Each violation is listed separately on the applicable NOV, and is identified by a unique "Item Number."
Certification - NOVs sent to owners direct them to correct the violations listed and to certify the correction by the dates specified. To certify the correction of a violation, the owner circles the Item Number of the appropriate violation, writes the date corrected next to the items circled, and signs by initialling next to the dates indicated. In addition, the owner is directed to complete and sign the certification form attached to each NOV, which must be notarized. The owner is instructed to return the forms to HPD, in person or by certified mail, by the specified date.
REINSPECTION
In general, reinspections of previously issued violations occur for one of three reasons: (1) HPD selects a limited sample of violations "Certified Corrected" by owners, and verifies them (2) HPD attorneys may request a reinspection, or (3) owners request a reinspection (for a $300 fee).[1] Sometimes, when conditions are not corrected, tenants make additional subsequent complaints, and HPD inspectors will be sent to the premises for additional visits. Generally, these are counted as inspections, rather than reinspections.
Reinspections of Violations "Certified Corrected"
According to the Chief Inspector of one borough's Code Enforcement Office, in "some cases, not many," HPD will reinspect a violation certified as corrected to verify that the violation has, in fact, been corrected. If this type of reinspection does not occur within 70 days, the violation is removed and is reported as a "violation removed" in HPD's statistics. If the violation is not reinspected within 70 days, the violation automatically becomes a violation removed with no verification as to the correction of the violation. Violations "deemed corrected" without verification are reported as violation removals in HPD's statistics.
If HPD reinspects a violation within 70 days of an owner's certification of correction of the violation and finds that the owner has not corrected the violation, the violation record will indicate the false certification. The violation will not be removed from HPD's records. (No legal steps are taken against the owner for falsely certifying that the violation was corrected.)
If HPD reinspects a violation more than 70 days after the Certification Date and finds that the owner falsely certified correction of the violation, a new NOV will be sent to the owner. The original violation already will have been removed from HPD's records and counted as a violation removed in HPD's statistics.
Reinspections Conducted at the Request of HPD Attorneys
If a reinspection conducted at the request of HPD attorneys reveals that a violation still exists, the violation will remain in HPD's records and the date of the reinspection will be listed as the "Last Inspection Date"; the original inspection's "Date Reported" will remain on the violation record. If the violation has been corrected, the violation is removed from HPD's records and counted as a violation removed in HPD's statistics.
Reinspections Conducted at the Request of Owners
The process is similar for reinspections conducted at the request of owners: if the violation still exists, the date of the reinspection will be noted as the "Last Inspection Date"; the original inspection's "Date Reported" will remain on the violation record. Violations that have been corrected will be removed from HPD's records and counted as a violation removed in HPD's statistics.
Objective
The objective of this audit was to determine whether HPD is effectively enforcing the Housing Maintenance Code.
Scope and Methodology
To determine whether HPD is effectively enforcing the Housing Code, we (1) examined performance indicators used by HPD management and (2) investigated whether a statistical sample of violations issued by HPD for immediately hazardous conditions other than lack of heat and hot water[2] were corrected.
To ascertain how successful HPD is at enforcing the Housing Code, we obtained performance reports used by HPD management and the performance indicators published in the "Mayor's Management Report." We also examined HPD's records of inspection information as they are recorded on HPD's database of violations. In particular, we analyzed the violation history of three buildings for which HPD had recorded hundreds of violations. We also surveyed the administrators of housing code enforcement programs in nine U.S. cities to compare these cities' performance measures with the measures used by HPD.
We found that HPD's performance indicators do not indicate whether owners correct violations cited by HPD. (This finding is the major focus of this audit). Therefore, to determine the correction rate of violations, we tested a statistical sample of 430 Class C violations selected from 38,036 immediately hazardous maintenance and repair violations identified by HPD inspectors during fiscal year 1994 and listed on HPD's database of violations as of July 1994.
We did not include heat violations in our sample for three reasons. First, HPD does have procedures which help reduce the risk that tenants are subjected to lack of heat for long periods or that landlords with recurring heat violations go unpenalized. Second, heat violations may be intermittent, and as such, determining whether particular violations were corrected from the population of heat violations issued during fiscal year 1994 would not be feasible. For example, several heat violations for a particular apartment may be issued in a year, each one indicating a specific instance when an inspector determined the heat was inadequate. The landlord may have ignored some violations and provided heat in response to others. To determine which exact violations were corrected and which were not corrected by visiting the premises months after the violations were issued would not be feasible. Third, because heat violations are substantially different from other types of hazardous violations, determining an overall correction-of-violation rate for both heat and non-heat violations would be erroneous and misleading. For one heat repair condition, tens of violations may be issued (one heat and one hot water violation for each apartment an inspector visits in a building). When the boiler is repaired and the heat is restored, all of these violations would be considered corrected. Therefore, the violation correction rate for such heat violations would not be comparable to the correction rate for other immediately hazardous conditions, where each violation requires a separate action to be corrected.
Although we attempted to determine whether 430 violations were corrected, 65 violations in our sample contained inaccurate information or could not be verified as corrected or not. Therefore, we excluded these 65 violations from the calculation of the correction rate of violations, and, likewise, excluded the portion of the total population of immediately hazardous violations these sample results represented.[3] As a result, we reduced our population of violations from 38,036 to 32,286.
In some of these cases, the violation information appeared to be incorrect: the building number or apartment number did not exist, the tenant said the violation never existed, or the violation was a duplicate of another in our sample. In some cases we could not determine if the violation was corrected because the apartment was vacant, the address was a vacant lot, the building was unsafe to enter, etc.
This audit was conducted in accordance with Generally Accepted Government Auditing Standards (GAGAS), and included tests of the records and other auditing procedures considered necessary. This audit was performed in accordance with the City Comptroller's audit responsibilities as set forth in Section 93, Chapter 5, of the New York City Charter.
Agency Response
The matters covered in this response were discussed with HPD officials during, and at the conclusion, of this audit. An exit conference was held on April 26, 1995. A written response was received on June 10, 1995. HPD, in its response, disagreed with most of the audit's findings and recommendations. A full discussion of the agency's response begins on page 28 of this report. The full text of the agency's response is appended at the end of this report.
Notes
1. HPD's Dismissal Request Program allows owners to file an application with HPD and pay $300 for a reinspection on an expedited basis. Sometimes an owner will want to clear the violation record on a building if the violation records jeopardize financing, J-51 tax abatements, or impair the collection of rents of rent-controlled apartments.
2. For ease of discussion in this report, we will refer to violations for conditions other than lack of heat and hot water as "Maintenance and Repair" violations; violations for lack of heat and hot water will be referred to as "Heat" violations.
3. Based on 65 violations in our sample of 430 violations, with a precision rate of 3.5 percent, we are 95 percent confident that 5,750 violations contained inaccurate information and/or could not be considered either corrected or not corrected.