A New York state judge struck down part of the state’s Human Rights Law requiring landlords to accept Section 8 vouchers. In an eight-page decision, the judge found the law violated the Fourth Amendment to the U.S. Constitution.
New York Attorney General Letitia James brought the original action against landlord Jason Fane and his companies on October 31, 2022, seeking more than $300,000 in penalties and a set-aside of “five percent of his residential housing units exclusively for Section 8 vouchers.”
New York Attorney General Letitia James today sued a landlord, Jason Fane, his company Ithaca Renting Company (Ithaca Renting), and his related entities for denying housing to low-income tenants. An investigation by the Office of the Attorney General (OAG) found that Mr. Fane and his real estate agents refused to accept Section 8 vouchers at his properties, in violation of New York’s housing laws against source of income discrimination. The lawsuit alleges that agents at Ithaca Renting repeatedly told renters they do not accept government assistance vouchers. Through her lawsuit, Attorney General James is seeking to require Mr. Fane to stop denying housing to New Yorkers with Section 8 vouchers, pay civil penalties, and set aside five percent of his residential housing units exclusively for Section 8 vouchers.“All New Yorkers deserve access to fair and decent housing, regardless of their station in life,” said Attorney General James. “Denying housing to New Yorkers based on their source of income is not only illegal, but it’s also worsening the housing crisis. We are taking action to protect vulnerable tenants, keep New Yorkers in their homes, and enforce the law.”
Section 8 “is the federal government’s program for assisting low-income families, the disabled, and the elderly afford housing.”
The federal government does not mandate landlord participation in the program but requires landlords who choose to participate to submit their property for inspection to ensure habitability and to allow the government to inspect their business records.
The challenged law barred landlords from discriminating against prospective tenants “based on their ‘lawful source of income,'” including Section 8 vouchers, thus making the Section 8 program—and its property and business records inspections—mandatory for New York landlords.
Jason Fane (pictured), a landlord based in Ithaca, New York, challenged the law on several grounds. He argued the law, by requiring him to submit to warrantless inspections of his property and business records, violated the Fourth Amendment.
[Jason Fane – Photo Supplied]
Fane also argued the state law conflicted with federal law and was preempted by the latter, that the state law imposed an unlawful retroactive penalty, and that the law amounted to a regulatory taking.
Fane ultimately prevailed on his Fourth Amendment claim.
One of Fane’s companies hailed the decision in a press release as “a victory for the rights of small business owners and the civil liberties of every citizen.”
“The Constitution protects everyone’s rights to be free from unreasonable government interference – regardless of whether you are a tenant or property owner,” the press release continued.
The judge rejected the state’s argument that landlords have a lower expectation of privacy in their rental dwellings merely because landlords open those dwellings to the public for rental.
The judge cited caselaw that “specifically held that laws which authorize inspections of residential rental properties without either the consent of the owner or a valid search warrant violate the Fourth Amendment, and specifically noted that a property owner cannot be indirectly compelled to consent to a search.”
The judge also rejected the state’s argument that “businesses have little to no expectation of privacy [in] their business records, especially in regulatory regimes” like that imposed by the law. The judge recognized that some businesses with “a history of government oversight” have no expectation of privacy in their business records.
However, this exception to the Fourth Amendment, the judge noted, did not apply to “renting residential apartment units” because that “is not a closely regulated industry” like “liquor sales, firearms dealing, mining, or operating an automobile junkyard,” industries whose business records fall outside the Fourth Amendment’s ambit
The judge’s opinion:
The press release:
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