(The Center Square) — A New York appeals court has stricken down a state law that bans discrimination against people who use government assistance to pay their rent.
The state Supreme Court’s Appellate Division, Third Department, ruled Thursday that a 2019 New York law prohibiting “source of income” discrimination against low-income tenants who use federal Section 8 vouchers violates the constitutional rights of property owners because it requires intrusive building safety inspections.
In the nine-page ruling, the five judge panel said it “beyond dispute” that New York, like many states, faces a housing affordability crisis and that “there is no question” that the Section 8 housing choice voucher program — the largest rental assistance program in the nation —”is a critical tool in advancing the availability of affordable housing.”
“Nonetheless, as a consequence of this law, landlords are now forced to consent to governmental searches of their rental properties and records,” they wrote. “Given that, for the reasons that follow, the source-of-income discrimination law violates landlords’ Fourth Amendment rights to be free from unlawful searches, we are constrained to conclude that the law is unconstitutional on its face.”
The ruling is a blow to Attorney General Letitia James, who sued a Ithaca property owner and his companies in 2022 after a group of tenants claimed they were denied housing because they used Section 8 vouchers to pay rent.
James had asked the court to force the property owner, Jason Fane, to pay $300,000 in civil penalties, update employee policies and training for his rental agents, and set aside 5% of his residential rental units exclusively for housing vouchers.
Lawyers for Fane argued in court filings that his company, Ithaca Renting Company, chose not to participate in the Section 8 program because it would force him to consent to “unconstitutional” inspections of his buildings and company records by federal, state and local government officials.
“Local agencies, HUD and the inspector general have no business in my personal affairs, and I do not consent to their inspections,” Fane wrote in court filing. “My books and records are mine, not the governments. If I participated in Section 8, I would be forced … to waive my Fourth Amendment rights and open myself up to inspection of my books, records and computers. I do not agree to do that.”
A state Superior Court Judge sided with Fane, ruling in July 2023 that the state’s anti-discrimination law authorized “warrantless searches” of private property. James appealed the ruling.
Under Section 8 program, low-income tenants who meet the state and federal requirements generally pay no more than 30% of their earnings toward rent, with the government issued voucher covering the remainder. Currently, more than 343,000 New Yorkers use the program to help pay rent, including 123,000 households in New York City, according to federal data.
James issued a statement late Thursday saying her office is disappointed by the appellate court’s decision and is considering an appeal.
“Every New Yorker deserves access to safe and dignified housing regardless of their income or background” she said. “Housing vouchers help thousands of New Yorkers stay in their homes, make ends meet, and raise their families. My office has always fought to protect New Yorkers’ right to housing.”
