Lessons from Kingston, New York

What to watch out for when a municipality opts into ETPA and suggestions for legislative and administrative reform

By Michael McKee, Tenants PAC Treasurer

Since the summer of 2022 I have collaborated with tenant organizers and tenant leaders in Kingston, New York who campaigned successfully to win adoption of rent and eviction controls, and then worked to assure proper implementation of these newly won protections. We encountered many difficulties and obstacles, and learned some lessons.

The experience in Kingston contains important lessons for other municipalities in the process of opting in, or considering opting into ETPA. This memorandum is intended to help tenants and pro-tenant elected officials in other municipalities avoid some of the problems we encountered in Kingston. The memo is necessarily long: my apologies.

Kingston is the first upstate municipality to opt into ETPA – but not the last

The Housing Stability and Tenant Protection Act of 2019 (HSTPA) expanded applicability of the Emergency Tenant Protection Act of 1974 (ETPA) to all 62 counties in the state, ending 45 years of arbitrary geographic restrictions in the original law which limited applicability to New York City and the three suburban counties of Nassau, Rockland, and Westchester.

The late Warren Anderson, long-time Republican State Senate Majority Leader, famously declared that he would never allow the “cancer of rent control” to spread north of Westchester County. Tenants to Warren: Sorry, Charlie.

Kingston is the first municipality in upstate New York to have opted into the ETPA since this transformational change. Other municipalities are expected to opt into this state rent control system in the future. The City Council of Newburgh in Orange County voted unanimously on December 18, 2023 to opt in, becoming the second municipality north of Rockland County to adopt rent and eviction controls.

Statewide applicability of ETPA was the only transformational feature of HSTPA: all the other provisions were “stopping the bleeding,” reversing the steady loss of existing rent-regulated housing in the downstate region, but doing nothing to return deregulated apartments to the system or expand coverage to unregulated housing. A great tenant victory to be sure, but a limited one. [Part M of HSTPA enacted new procedural and substantive protections for both regulated and unregulated tenants, but these mild reforms can hardly be considered transformational.]

As more upstate municipalities opt into ETPA, politics in this state will change for the better, and the pressure for transformational changes in our rent laws will increase.

Public education should begin before opting into ETPA

The City of Kingston conducted a vacancy survey in April and May of 2022 that found a net vacancy rate of 1.57%, well below the 5% or less threshold necessary to declare a housing emergency. Based on this survey, the Kingston Common Council held a public hearing on July 26, then voted 7-1 on July 28 to opt into ETPA effective August 1, 2022.

Once the vote took place, mass confusion broke out and reigned for the next few months. Some landlords engaged in egregious illegal activities, demanding that tenants sign illegal leases and pay rent increases when rents were frozen as of August 1. Organizers from local community groups and city officials tried to educate themselves. The organizers were quick studies, but the amount of information to process was formidable. Tenants were asking for clarification and got different answers from different sources.

The Office of Rent Administration (ORA) of the NYS Division of Housing and Community Renewal (DHCR) sponsored a town hall meeting for tenants in August at which its representatives gave out misleading information and disastrous advice. The mayor’s staff listened only to DHCR and consequently got a lot wrong. Tenants of a seven-unit building who were nominally protected from arbitrary eviction under ETPA lost their homes and the building was eventually emptied, and no one came to their defense.

Everyone was playing catchup. For The Many and Citizen Action of New York, two organizations with organizers on the ground whose members had successfully lobbied the Common Council to opt in, sponsored informational workshops for tenants and elected officials. Organizers went door-to-door to educate tenants and recruit them into the fight. I was writing fact sheets explaining different aspects of ETPA implementation, which we immediately realized should have been ready and available long before August 1, but which were not published until October-November.

Other municipalities considering ETPA should avoid repeating this mistake. Start public education efforts before the vote to opt in.

[These fact sheets are available at nytenantspac.org/kingston-etpa-fact-sheets, and are easily adaptable to other upstate municipalities.]

Prepare for illegal landlord behavior and non-compliance

The moment the Common Council voted to opt into ETPA, rents in Kingston apartments subject to the law were frozen, and tenants in the covered buildings were protected from eviction without good cause. Kingston tenants were long accustomed to a situation where the landlord had all the power, and it was hard to get them to understand that they could now say no.

In the period between the June 1 publication of the vacancy survey and the August 1 effective date, some landlords pressured tenants to sign new leases and pay another rent increase, even in cases where current leases still had months remaining before they expired. Some of these leases were for five months or nine months. Many tenants signed. This maneuver allowed the landlords to jack up the Initial Legal Regulated Rent, the rent the tenant was paying on August 1.

Even after ETPA went into effect and rents were frozen, some landlords demanded that tenants sign 3-month or 6-month leases and pay rent increases – all illegal. Many tenants later stated, “We didn’t know what to do.” There was no organized attempt to provide lawyers to represent tenants who were being unfairly evicted or pressured to sign illegal leases.

Landlords of ETPA buildings were required to complete Initial Apartment Registration by November 2022; as of June 2023, more than half the landlords had not filed the required forms with ORA, nor served the required copies on their tenants.

In the spring of 2023 only six Kingston landlords submitted the required Income and Expense schedules to the ORA research unit, which the agency uses to prepare annual reports for the Rent Guidelines Boards outside New York City. These I&E reports provide the board members with information needed to inform their decisions on rent adjustments.

As the Kingston Rent Guidelines Board (KRGB) prepared for its second annual vote on June 21, ORA research staff sheepishly reported this information to the board, adding that only five of the six I&E schedules were “readable.”

Consequently, because the universe was so small, the research staff did not provide any I&E data to the KRGB prior to its June 21, 2023 vote. Instead, they gave the board a pathetic chart using data from the American Community Survey. How the DHCR representative was able to get through this embarrassing presentation with a straight face was amazing to behold.

Landlords will sue

It is virtually guaranteed that any municipality that opts into ETPA will be sued by landlords. A hastily-formed outfit calling itself Hudson Valley Property Owners Assn. was incorporated in July 2022. In October HVPOA filed a Supreme Court lawsuit against the City of Kingston, claiming that the vacancy survey was invalid. After the Kingston Rent Guidelines Board voted for a negative rent adjustment on November 9, HVPOA amended its complaint to challenge the actions of the KRGB.

HVPOA is represented by Belkin Burden Goldman, LLP, a major New York City landlord law firm. Some observers suspect that the New York City real estate industry is secretly paying HVPOA’s legal fees.

In February 2023 the lower court judge ruled that the vacancy survey and declaration of emergency by the Common Council were valid, but mistakenly ruled that the KRGB did not have the power to reduce rents and mistakenly found that the KRGB had impermissibly adopted a retroactive rent reduction. He conflated the KRGB’s negative rent adjustment with the Fair Market Rent Guideline, demonstrating a lack of understanding of how these two separate processes work.

The judge stayed several aspects of ETPA but left it in effect: rents are frozen and tenants can remain indefinitely as month-to-month tenants without leases, and cannot be evicted without cause. But he suspended many aspects of the law until the appeal is decided: DHCR can accept certain complaints from tenants but cannot act on them.

The various parties have appealed and/or cross-appealed aspects of the lower court decision to the Appellate Division, Third Department. Oral arguments at the Third Department took place on January 19, 2024. We are waiting for the Third Department justices to issue a decision.

The KRGB is being represented by Attorney General Letitia James. Citizen Action, For The Many and two ETPA tenants, Lisa Lerner and Amanda Treasure, intervened in the lawsuit as parties on the side of the KRGB and are being represented by Marcie Kobak of Legal Services of the Hudson Valley.

Tim Collins of the NYC tenant law firm Collins Dobkin & Miller prepared, pro bono, a “friend of the court” brief supporting Kingston ETPA and the KRGB on behalf of seven organizations that do tenant organizing and/or advocacy in upstate New York: Albany Housing for All, City-Wide Tenants Union of Rochester, Community Voices Heard, Hudson/Catskill Housing Coalition, Ithaca Tenants Union, Syracuse Tenants Union, and United Tenants of Albany. Tim Collins is the former executive director of the NYC Rent Guidelines Board.

The outcome of this litigation will affect not only Kingston, but also every other municipality in upstate New York that opts into the ETPA.

(Link here for the memo “How to Make Sure Your Vacancy Survey Survives a Court Challenge”)

The DHCR Office of Rent Administration is a toothless agency

Tenants quickly came to understand that they could not rely on DHCR for enforcement of ETPA. This is a system that, by design, allows landlords to get away with unlawful behavior, unless the tenant files a complaint with the agency. Even then, it takes ORA many months or even years to adjudicate complaints and issue a decision, at which point landlords can achieve even further delay through administrative appeals within the agency.

DHCR is reluctant to take proactive action against scofflaw landlords because they fear being sued, and they know that landlords have a greater capacity to sue than tenants.

And in ways subtle and not so subtle, the agency discourages tenants from filing complaints. Anything to keep their workload down.

Moreover, agency staff are close-mouthed and reluctant to provide meaningful information, even when members of the Kingston Rent Guidelines Board (KRGB) ask for it – despite the fact that DHCR is mandated by law to provide staff assistance to all the Rent Guidelines Boards outside New York City (the NYC RGB has its own staff, the others do not).

To get answers to their concerns, KRGB members drew up a list of formal questions for DHCR staff to answer in advance of the June 21, 2023 vote. One question was how many Kingston landlords had complied with the requirement to register rents and services by the November 2022 deadline. A DHCR representative grudgingly reported to the board that fewer than half the owners had done so – ten months after Kingston opted in and seven months after the deadline for them to register.

A KRGB member asked what actions the agency had taken to force landlords to comply with registration. A DHCR staffer said that they had sent reminders to the landlords, and if landlords continued to stonewall, DHCR would sic the much-hyped Tenant Protection Unit on them, and then possibly fine them.

You might ask why an agency whose very purpose is tenant protection needs something called the Tenant Protection Unit.

The TPU was created administratively in 2011 by then-Governor Andrew Cuomo. This was a political deal he made with several state legislators who were unhappy with his failure to support meaningful reforms when the state rent and coop conversion laws were renewed, leaving all the deregulation loopholes in place, in June 2011.

DHCR has always had the power to engage in proactive enforcement, but has chosen not to use it. The TPU is the first entity at the agency designed to go after bad landlords on its own initiative rather than waiting for tenants to file complaints. The TPU has subpoena power and can sue landlords who flout their legal obligations. The TPU operates independently of ORA.

In hindsight, we should have asked the TPU to set up a temporary office in Kingston to take action against the many scofflaw landlords. A lesson for other municipalities.

State law needs to be strengthened to give ORA additional enforcement powers, but this is an agency that will not use the enforcement tools it already has.

Landlords will seek loopholes to escape regulation

The Kingston vacancy survey in April and May 2022 found a net vacancy rate of 1.57% for ETPA-eligible housing, well below the 5% or less threshold “housing emergency” trigger for ETPA.

The study identified 59 buildings with 1,270 apartments as eligible for coverage, as these homes were in buildings with six or more units built before 1974. These estimated numbers have changed from time to time, from a high of 1,300+ units in 64 buildings to a low of about 1,100. According to a DHCR staffer, the 1,200 number is “a moving target.”

At the June 2023 KRGB meeting, DHCR officials reported that landlords of “four to seven” buildings are claiming exemption from ETPA on grounds that at some point between 1974 and 2022 the building was “substantially rehabilitated.” This is a common landlord ploy; any factual evidence of a major renovation that supposedly took place years or even decades ago can be hard to locate. DHCR also told the KRGB that “a couple of buildings” are vacant.

It seems that some Kingston landlords are holding their buildings off the market and plan to claim substantial rehab exemption in due course. There is no certainty that ORA will require landlords to produce credible proof of substantial rehab, including replacements of major systems such as wiring, plumbing risers, heating and cooling mechanisms, windows, roof, etc.

This is an area rife with fraud. Tenants in a building where the landlord is claiming past substantial rehab, or apparently planning such a renovation, would do well to organize and consult with a tenant lawyer.

Organizers report that a group of bad actors are buying and selling ETPA buildings in Kingston using different LLCs (Limited Liability Companies) to hide their identities.

Tenants will need lawyers to represent and advise them

Like some landlords in other rent-regulated areas, bad actors in Kingston ignored the August 1 rent freeze, raising rents illegally. Some made direct threats, promising eviction if tenants refused. Tenants who for years had accustomed themselves to a power relationship where their landlords could dictate terms or even terminate their tenancies without cause had a hard time adjusting to the new reality: tenants had to be reminded, and reminded again, that they had some new rights, if only they were willing to stand up for them.

And some tenants lost their homes, even though they were now nominally protected by ETPA. In March 2022 a speculator bought a seven-unit building at 58 Fair Street. He told the tenants he intended to empty the property and flip it for $1 million. Some tenants took small buyouts and left. He refused to accept rent, including illegally refusing payment from one tenant whose rent was paid through public assistance.

While some of the details of this case are murky, it seems that the new landlord ignored the notice requirements in Part M of the Housing Stability and Tenant Protection Act of 2019 before raising everyone’s rent to $2,000 per month, fully aware that the tenants could not afford that. He concocted “arrears,” claiming three of the four remaining tenants each owed exactly $4,500. In July he commenced non-payment proceedings in Kingston City Court. The three tenants were unable to obtain counsel and had to represent themselves at their court date on August 11.

The judge, instead of questioning why all the tenants allegedly owed exactly the same amount of arrears or requiring the landlord to prove his prima facie case, helped pressure the tenants to agree to “settlements” whereby they agreed to vacate by September 30 in return for a $2,000 payment. But the tenants were aware that they were being railroaded: even though they had “agreed” orally, they refused to sign the formal agreement presented to them by the landlord’s attorney. As two of them later told me, “We didn’t know what else to do.”

Attempts to find a lawyer in time to try to reopen the cases failed, despite the best efforts of Alderwoman Michele Hirsch and County Legislator Phil Erner. Eventually all the tenants were forced to leave their homes ahead of the sheriff; residents of the last three households vacated in April 2023.

The failure to provide legal representation for the tenants who were being victimized, especially the tenants at 58 Fair Street, was a grotesque failure by the City of Kingston, the State of New York, and by everyone else, including the tenant movement.

Municipalities opting into ETPA should consider funding legal representation for tenants for at least a year following the opt-in. Ideally this should not be through a legal services organization that is restrained by federal guidelines, nor through any legal organization that is restricted to representing only very low-income tenants.

Pay attention to the Rent Guidelines Board composition

When a municipality opts into ETPA for the first time, the local legislative body is charged with recruiting nine residents to serve on a new municipal Rent Guidelines Board. The Kingston Common Council sent out a notice inviting Kingston residents to apply, and from 26 applicants chose two tenant members, two landlord members and five public members. DHCR then appointed the nine members of the Kingston Rent Guidelines Board (KRGB); note that under the law DHCR can appoint only persons who are chosen by the local legislative body.

The KRGB met for the first time on September 21. Under the capable leadership of chair Noah Kippley-Ogman, and facing a steep learning curve, the KRGB members set about mastering the task before them. They scheduled two public hearings, October 25 and November 5, and a final vote on November 9. For The Many and Citizen Action of New York did an excellent job of turning tenants out and prepping tenants for testimony at the two public hearings.

On November 9, the KRGB voted 6-3 for two guidelines: (1) a rent adjustment for renewal and vacancy leases that commence between August 1, 2022 and September 30, 2023, and (2) a Fair Market Rent Guideline, a benchmark to aid ORA in deciding Fair Market Rent Appeals (see next section for details on the FMRA process).

For renewal and vacancy leases, the KRGB adopted a 15% negative rent adjustment: whatever the tenant was paying on August 1, 2022 (or the last rent before that if the apartment was vacant on that date) would be reduced by 15% when a new lease is signed. [The normal “guidelines year” is from October 1 to the following September 30, but because Kingston opted in as of August 1, the initial guidelines cover 14 months, not the usual 12 months.]

Of course, all this is in abeyance: The lower court judge stayed the KRGB order, thus freezing rents until the appeal to the Appellate Division, Third Department is decided.

On June 21, 2023 the KRGB voted 5-3 for a zero rent adjustment for renewal and vacancy leases that commence between October 1, 2023 and September 30, 2024. This second-year rent adjustment is also stayed until the Third Department rules.

The tenant-friendly 2022 and 2023 votes by the KRGB are attributable to the careful selection of members by the Kingston Common Council. A different choice might have led to very different outcomes. Tenants in other municipalities opting into ETPA should work with sympathetic members of the local legislative body to assure that new RGBs are not tilted in favor of landlords.

The importance of the Fair Market Rent Appeal

This is the most confusing part of ETPA implementation. Tenants have a one-time opportunity to file a Fair Market Rent Appeal (FMRA) to challenge the Initial Legal Regulated Rent (ILRR), also referred to as the base date rent, or base rent. In Kingston the ILRR is the rent the tenant was paying on August 1, 2022, or the last rent payment before that date if the apartment was vacant on August 1, 2022.

Since 2017, or even earlier according to some accounts, the Kingston residential real estate market was heating up, with increased demand allowing landlords to jack up rents. When the Kingston Common Council began discussing opting into ETPA in 2019, that was a signal to landlords to rent gouge before the law was implemented. The Covid pandemic resulted in many New York City residents relocating to the Hudson Valley, putting more housing pressure on localities. By the time Kingston opted into ETPA in 2022, rents had soared to previously unthinkable levels.

The Fair Market Rent Appeal process in the ETPA was designed specifically to address this problem. After considering testimony and data, the KRGB voted that any tenant whose rent had increased by more than 16% between January 1, 2019 and July 31, 2022 could file a Fair Market Rent Appeal with ORA and seek a one-time downward adjustment of the ILRR.

DHCR representatives repeatedly suggested that the KRGB limit the lookback period, suggesting 6 months or even 2 months. Fortunately, KRGB members understood why it was important to have a multiple-year lookback, to allow tenants to challenge rent gouging that occurred during the last 3.5 years. A brief lookback period would have denied many tenants that opportunity.

A new Rent Guidelines Board only adopts a Fair Market Rent Guideline once, when the municipality first opts into ETPA. The FMR Guideline is a benchmark intended to guide DHCR when it adjudicates FMRAs.

This is a one-time opportunity: If Kingston tenants do not file a FMRA with ORA by the deadline, they are forever time barred from doing so and the rent being paid on August 1, 2022 becomes the legal rent. [For detailed information about FMRAs, see the fact sheet “Fair Market Rent Appeals: What Kingston Tenants Need to Know”. Easily adapted to your locality.]

Despite efforts by For The Many and Citizen Action, including workshops and one-on-one sessions where organizers helped tenants fill out the form, it seems that few Kingston tenants have filed FMRAs. A DHCR staffer told the KRGB that about 50 Kingston tenants had filed as of June 2023. Local organizers think the number is somewhat higher.

DHCR/ORA staff do everything possible to discourage tenants from filing FMRAs. Until September 2022 there was not even a form for this purpose. The night before the September 21 KRGB meeting, someone at the agency added a checkbox “Fair Market Rent Appeal – for Kingston only” to the RA89 form. This form, “Tenant’s Complaint of Rent and/or Other Specific Overcharges in a Rent Stabilized Apartment,” is used for rent overcharge complaints, and is inappropriate for FMRAs: it demands a slew of information irrelevant to FMRAs, and is confusing and intimidating.

ORA requires the RA-89 form be used for three different kinds of cases: Fair Market Rent Appeals; complaints of rent overcharges; and challenges to the initial apartment rent registration. It is absurd that the agency does not have separate forms for each.

Among other required information, the RA-89 form requires tenants to attach copies of leases for up to the last six years, as well as six years of cancelled checks (front and back), money orders or rent receipts as proof of payment. This information is useful to ORA rent examiners when adjudicating a complaint of rent overcharge, but contrary to state law in terms of FMRAs.

Indeed, the statute is quite clear: “ … Such tenant need only allege that such rent is in excess of the fair market rent and shall present such facts which, to the best of his [sic] information and belief, support such allegation. …” [ETPA, Section 9(b)]

DHCR’s stubborn insistence of using Form RA-89 for Fair Market Rent Appeals is a deliberate attempt to make it hard for tenants to file.

When the KRGB chair asked ORA representatives if the agency would be amenable to creating a more appropriate FMRA application, a DHCR counsel replied, “The board cannot dictate what forms the agency uses.”

Many months after Kingston opted into ETPA, DHCR finally amended its ORA Fact Sheet #6, Fair Market Rent Appeals, to include a scant two paragraphs describing the FMRA process for “New ETPA Municipalities.” The bulk of this fact sheet is devoted to describing a more complicated FMRA process for formerly rent-controlled apartments that transition to rent-stabilized status in New York City.  This new version of Fact Sheet #6 appeared briefly on the DHCR website, but as recently as January 25, 2024 the old Fact Sheet #6 was on the DHCR website. Inquiries by the author of this memo to ORA staff asking what happened to the revised fact sheet have gone unanswered.

Some Kingston tenants have reported that the DHCR online portal that tenants use to file such applications will not accept a FMRA unless the tenant attaches copies of prior leases. Some tenants thus were stymied in their attempts to file because they did not have copies of leases, and could not obtain them from management. More and more, lease renewals are handled online, and tenants never receive a written copy.

Organizers report that many tenants, especially those in smaller, unorganized buildings, were reluctant to file a FMRA for fear of finding themselves in conflict with their landlord. The organizers did not have the capacity to organize tenant unions in all 59 buildings. Earlier public education might have made a difference.

On March 29, 2023 attorney Louis Cholden-Brown and I addressed a meeting of the Stony Run Tenants Union during their fight with Mayor Steve Noble over his plan to convert the complex to workforce housing (see next section for details).

Stony Run management complied with rent registration by the November 1, 2022 deadline, so tenants had 90 days, until the end of January 2023, to file a FMRA. After the meeting, during which I fielded many questions about FMRAs, I was approached by four tenants, each with a sheepish explanation of why they had not filed. One tenant had planned to move out of the complex and therefore did not file, but their plans fell through so they were staying, and were now stuck with the higher rent. The stories were all like that. But my sense was that the real issue was uncertainty, or fear.

Some Kingston tenants can still file FMRAs because their landlord has not yet complied with the requirements of rent registration. Thus, the clock has not started ticking.

Marcie Kobak of Legal Services for the Hudson Valley created excellent sample answers to guide Kingston tenants who want to file FMRAs or challenges to rent registration. These samples are available at “Sample Fair Market Rent Appeal (FMRA)”.

Proper administration and enforcement of the Fair Market Rent Appeal process is a crucial aspect of ETPA implementation. It is the only way to give relief to tenants who have been victims of rent gouging before a municipality opts in. The state legislature must intervene to force the agency to take its legal obligations in this matter seriously (see Proposals for Legislative and Administrative Reform).

Tenants must rely on their organizing power rather than elected officials

Tenants can expect only so much support from their elected officials.

Kingston Mayor Steve Noble and the Common Council deserve credit for adopting ETPA and (in the case of the Council) for choosing fair-minded residents for the Kingston Rent Guidelines Board. But in many areas of tenant protections, they have come up short.

Democrats took control of the Common Council in 1987, and Kingston has had a Democratic Mayor since 1994. All but one of the Common Council Members in July 2022 were Democrats: the lone negative vote on opting in was from the Republican. But the Mayor and Common Council have catered to private real estate developers. The City has sent clear signals that developers will be supported and subsidized with tax breaks.

Mayor Noble has made ominous statements that raise questions about his commitment to maintaining rent and eviction protections. His constant mantra has been, "We won't always have ETPA,” or the variation, "We might not have ETPA in ten years.” In fact, in its 49 years of existence, no municipality has voluntarily opted out of ETPA, so Noble’s statements are disquieting. [May 29, 2024 will be the 50th anniversary of enactment of ETPA.]

Not only that, soon after opting into ETPA, Kingston Corporation Counsel Barbara Graves-Poller, who represents both the Mayor and the Common Council – an obvious conflict of interest, as she clearly takes orders from the Mayor – proposed that the Council pass another law requiring the City to conduct a new vacancy survey every three years. The Council promptly followed suit. Thus, Kingston is the only municipality anywhere outside New York City that is required to do this, and it's a mandate not of state law as in NYC, but of local law.

The only purpose of this local law can be to give Kingston landlords an opportunity to warehouse apartments and manipulate rent rolls to skew the survey results above a 5% net vacancy rate, at which point the Common Council would be required to end rent regulation. Where the ETPA universe is as small as it is in Kingston – 1100 to 1300 apartments – it takes only a small number of vacancies to distort the numbers. This is what happened in 2019, when Kingston put out a Request for Proposals, hired a consultant who several months later produced survey results showing that the net vacancy rate in ETPA-eligible buildings was almost 7%, a result everyone knew was absurd. But legally it was too high to allow the City to adopt ETPA.

By contrast, with the 2022 survey, which was competently done “in-house” by the Mayor's Office of Housing Initiatives, landlords were given a very short window to submit answers to the questionnaire, and, most importantly, were told that if they failed to submit the information it would be assumed that they had no vacancies. Both are important considerations to ensure the accuracy of a vacancy survey. The ETPA statute was amended in December 2023 to enshrine in state law the practice that non-response by landlords = zero vacancies, plus the new law provides for landlords to be fined if they do not supply the requested information.

Kingston landlords know that sometime in 2025 there will be a new vacancy survey, giving them plenty of time to plan. Methodologically, warehoused apartments should drop out of the calculation, as the net vacancy rate is that percentage of housing accommodations that are vacant, habitable, and available for rent at the time of the survey. But it can be difficult to tell if a vacant apartment is being offered for rent or being held off the market. If the universe is 1200 apartments, a finding of 61 vacancies would produce a result mandating termination of ETPA.

Noble and Graves-Poller also threw the Kingston Rent Guidelines Board under the bus after the lower court judge issued his decision. Both made public statements defending the vacancy survey and the declaration of emergency, but were silent about the actions of the KRGB. And the legal papers submitted by the Corp. Counsel in the litigation make no attempt to defend the KRGB.

In February 2023 Mayor Noble announced that he had negotiated a deal with two hotshot developers who had purchased the Stony Run apartment complex two years earlier for a commercially unreasonable price, thinking they could convert it to luxury housing. Stony Run is the largest ETPA complex in Kingston, a garden-apartment development of 266 apartments on the outskirts of the city.

The new owners, Aker Companies, vastly overpaid for the property, and underestimated the cost of necessary repairs; the prior owner, E&M, had seriously run the complex down. Aker quickly found itself in trouble. In the spring of 2021, shortly after they bought Stony Run, Mayor Noble had unsuccessfully tried to persuade the Common Council to grant Aker a tax break.

Two years later, Noble announced with great fanfare that he and Aker had agreed on converting the complex to “workforce housing” under a program that would qualify the property for federal renovation funds; Noble stated that going forward, rents would be set pursuant to the workforce agreement, not the ETPA.

The announcement caught Stony Run tenants by surprise: the Tenants Union demanded clarification and quickly drew up a list of five demands they wanted to be included in the regulatory agreement. The alderwoman representing them at first pledged to oppose the plan, then reversed herself; tenants were understandably angry with her.

Taken aback that the tenants did not immediately embrace his plan, Noble accused the Stony Run Tenants Union of “bad faith” because they went to the media with their complaints. Never mind that he negotiated with the landlords behind the tenants' backs, apparently for two years.

At a Common Council “emergency” meeting to approve the plan, several alderpersons engaged in ad hominem attacks on Stony Run tenants and their leaders. One alderman accused For The Many, which provided invaluable organizing help to the TU, of bad faith. The tone was scolding, treating the tenants as recalcitrant children who could not possibly know what was best for them. It was disgusting to watch.

This is all too typical of Democratic politicians who talk up “community empowerment” but get bent out of shape when their constituents act to hold them accountable.

As has consistently been the case, Alderwoman Michele Hirsch was the only Common Council member the tenants could count on, and the only “no” vote on the resolution giving the Mayor carte blanche to negotiate a final deal with Aker.

In the end, thanks to the organizing power of the Stony Run Tenants Union, and thanks to attorney Louis Cholden-Brown who represented them pro bono, the Mayor was forced to modify the agreement, adding two elected tenant representatives to a committee to decide on future repairs. And the Mayor and his Corp. Counsel were forced to acknowledge that the workforce housing agreement would in no way take away any rights tenants have under the ETPA, including the crucial proviso that future rent adjustments will be under the jurisdiction of the Kingston Rent Guidelines Board.

The members of the Kingston/Ulster County Democratic “club” (you can’t really call them a machine, they’re not that powerful) spend a lot of time patting themselves on the back about how progressive they are. And they spend a lot of time and effort trying to undercut truly independent and progressive officials such as Michele Hirsch and Assembly Member Sarahana Shresta.

What happens if landlords continue to refuse to comply with ETPA?

Assuming the outcome of the litigation ultimately upholds ETPA in Kingston, and upholds the actions of the KRGB, what happens then?

The rent stabilization system relies on voluntary compliance by landlords, who are required to offer tenants a renewal of their lease, and are required to offer tenants without a current lease a new one, for a term of one or two years, at the tenant's option. What if a substantial number of Kingston landlords refuse?

When they offer tenants a renewal lease, landlords will be obligated to reduce the rent the tenant was paying on August 1, 2022 by 15% and tenants will be entitled to a refund of any excess they have paid after that date. It is not hard to anticipate that some landlords might refuse to offer tenants a lease. This impasse could go on for some time, possibly years.

In a sense, it doesn’t matter if landlords offer renewal leases, as it is the law that protects tenants, not the lease. This is a hard reality for tenants to understand.

If landlords do not offer renewal leases, they cannot raise rents because only when a lease is renewed can an authorized rent increase go into effect. While the KRGB has not yet done so, in future years it is likely to adopt a positive rent adjustment.

But without a lease renewal, how will tenants get the benefit of the one-time 15% negative rent adjustment?

If the Kingston experience demonstrates anything, it proves that a rent regulation system based on lease renewals shuts down when landlords refuse to comply, especially with an agency that does nothing to enforce the law unless a tenant files a complaint.

It is probable that tenant organizers and lawyers will ultimately have to design some means of self-help, whereby Kingston tenants reduce their own rents, and/or some form of legal intervention. Stay tuned.

Proposals for legislative and administrative reform

The last 18 months have been an intense and stressful period for Kingston tenants and organizers, who have demonstrated unwavering determination, grace, and good will. Personally, it has been a privilege to work with them.

Here are some ideas for how to improve implementation of ETPA:

  1. Mandate a new Fair Market Rent Appeal application. ORA refuses to develop an appropriate form for FMRAs, insisting that tenants use the intimidating RA-89. This is a deliberate attempt to discourage tenants from filing. The legislature should enact a law dictating the content of a new FMRA form (plus a separate rent registration challenge form). Normally such a bill would leave it to the agency’s discretion to design the form, but in this case, it makes sense for the legislature to include the actual mandatory form in the legislation.

  2. Mandate fines for landlords who fail to comply with their obligations. Landlords who do not comply with rent registration, or who do not submit the required Income and Expense schedules to ORA, or who do not offer lease renewals, should face mandatory fines. These fines should increase for repeated violations.

  3. Reconsider the lease renewal system. The ETPA was cloned from the New York City Rent Stabilization Law of 1969, which was designed by the real estate industry itself in collaboration with the administration of Mayor John Lindsay. Instead of using the statutory tenancy provisions of rent control, whereby tenants can remain in occupancy permanently without a current lease (in effect, a permanent lease), the RSL ties tenure protections to periodic lease renewals. When I served as a tenant rep on the NYS Temporary State Commission on Rental Housing from 1978 to 1980, TSCRH chair Jack Ward, one of three Lindsay administration officials who drafted the RSL, told me, “We wanted it to be a lease system because we didn’t want tenants to think they could stay forever.” To this day, thousands of rent-stabilized tenants mistakenly believe that if the landlord doesn’t renew their lease, they can be evicted, when it is the law that gives them the right to remain, not the lease. Given the problems with widespread landlord non-compliance in Kingston, much of it related to leases or the lack thereof, and faced with the likelihood that landlord defiance will happen in future ETPA municipalities, perhaps it is time for a restructuring of the RSL/ETPA. Replacing lease renewals with statutory tenancy would greatly simplify administration and enforcement, but would also require a public education campaign.

  4. Create a state fund for legal representation and assistance. The state legislature should create a local assistance fund to enable municipalities that opt into ETPA to hire an attorney for a period of one year to advise and represent tenants.

  5. Activate the DHCR Tenant Protection Unit. The Office of Rent Administration is hopeless. DHCR Commissioner RuthAnne Visnauskas should direct the TPU to monitor each municipality that opts into ETPA and intervene as soon as it becomes apparent that landlords are abusing tenants and/or stonewalling on complying with their obligations under ETPA. She should establish a direct line of contact between the TPU and local tenant organizations and municipal officials.

Tips for tenant organizers and tenant leaders

  1. Educate yourselves early about how ETPA works. Tenants put a huge effort into ETPA campaigns, convincing the municipality to undertake a vacancy survey, and lobbying individual legislators to vote to opt in. It is a mistake to wait until the opt-in vote to start learning about how the law works. And plan public education for tenants and legislators, ideally before the opt-in vote.

  2. Develop relationships with legal services providers. You will need their help.

  3. Help recruit candidates for the municipal Rent Guidelines Board. When a municipality first opts into ETPA, the city/common council or board of trustees must find nine residents to serve as members of the new RGB. It is especially important to find fair-minded residents to serve as the five public members, as they constitute a majority on the board.

FOR MORE INFORMATION/YOUR COMMENTS:

Michael McKee, Treasurer, Tenants Political Action Committee mmckee@tenantspac.org

Sincere thanks to the tenant leaders, tenant organizers and tenant attorneys who provided invaluable input into successive drafts of this document.

Housing Justice for All, the statewide coalition, can provide a range of services to tenants who want to bring ETPA to their municipality. Email Naomi Dann at naomi@housingjusticeforall.org or click on this link: https://hj4a.org/ETPASupport.