Building and Realty Institute of Westchester and Putnam Counties, Inc., et al. v. New York, et al.

New York’s Emergency Tenant Protection Act applies to properties constructed prior to 1974 with 6 or more units. It requires findings of less than a 5% occupancy rate in the appliable municipality. It anticipated that a “sunset Clause” could take effect removing the community from ETPA if there were more than 5% vacancies in a community. The law protected tenants in various ways. The Housing Stability and Tenant Protection Act (HSTPA), (June 2019) removed statutory protections by repealing vacancy decontrol, limiting Maor Capital Improvements (MCI) and Individual Apartment Improvements (IAI) expenditures; removing the benefit of preferential rents; extending rights of tenants’ roommates; repealing deregulation of tenants exceeding a threshold of the tenant’s income exceeding $200,000.00 for two years prior, or removing a vacancy increase when the unit becoming vacant; and preventing cooperative or condominium conversions on reasonable terms. The HSTPA limited the owner’s control of renting to tenants by limiting the ability to consider a refusal based on prior rent history. The questions presented are whether the changes made by the HSTPA effect physical takings, and as applied takings, and violate both the Due Process and Contract Clauses of the Constitution. The case fits squarely with the partial dissent in 74 Pinehurst LLC v. New York, No. 19 Civ. 6447, 2024 WL 674658 (U.S. Feb. 20, 2024) and should be reviewed in that context. (i)