By: WBG, LLP Published: May 2018

How to Comply with Notice Requirements for the Safe Construction Bill of Rights and Tenant Protection Plans

Suppose you are a general contractor, hired by a landlord to renovate the atrium of an apartment building in Bushwick. It looks like a simple job that will take a month, but it will generate significant noise and dust, and it will require interruption of the hot water and gas lines. In this case, you need to make sure that the landlord has provided sufficient notice to the occupants of the building.

In 2017, the New York City Council enacted a package of ordinances dubbed as the “Stand for Tenant Safety”. These laws were enacted to curb egregious abuses like the case of Daniel Melamed, a Crown Heights landlord so determined to evict rent-stabilized tenants that he hired contractors to perform illegal construction work. Melamed hired his contractors to conduct partial demolition of the building while tenants were still living in it, exposing tenants to friable asbestos and toxic concentrations of lead dust, and intentionally cutting off heat in the dead of the winter. The Attorney General filed criminal charges, and Melamed was ultimately convicted on three counts of unlawful eviction.

The City Council’s stated intent in enacting these new notice requirements is to provide tenants with relevant information when their Landlord conducts significant renovations in the building, and to deter the misuse of construction contractors for the ulterior purpose of harassing rent-stabilized tenants.

The Safe Construction Bill of Rights

One ordinance in the “Stand for Tenant Safety” package is Intro-960 sponsored by Rosie Mendez (D-Lower East Side), more colloquially known as the “Safe Construction Bill of Rights” (or in this legal alert, “SCBOR”). Substantively, the only thing that SCBOR does is establish an affirmative obligation for landlords to provide written notice to their tenants about any significant construction or renovations on the premises. It is a best practice for every contractor to take care that the landlord follows this new notice rule.  

In any such situation in which a Landlord’s obligations attach, the Landlord must make available a document titled the “Safe Construction Bill of Rights” to all of the Occupants (“SCBOR Notice”). For new buildings, the SCBOR Notice requirements attach whenever a landlord applies for a temporary certificate of occupancy. For existing buildings, the notice requirement attaches “contemporaneously” when a landlord applies for a work permit for any work significant enough that it requires a permit; i.e. anything more than mere “ordinary repairs” or “minor alterations”.  Note, however, that if the landlord applies for an emergency work permit, the notice requirement attaches “immediately.”

According to the Safe Construction Bill of Rights, the SCBOR Notice must inform occupants of the following information:

  1. A description of the construction work being conducted (“Work”)
  2. The location of the Work
  3. The projected timeline for completion of the Work
  4. A description of the services anticipated to be interrupted during the Work, such as hot water, an elevator, a stairwell, an entrance, etc.
  5. Contact information for an agent or an employee of the landlord who can be reached for emergency matters and non-emergency matters
  6. Contact information for 311 or other city or state agencies

The Landlord can comply with the Notice requirements by distributing the SCBOR Notice to each occupied dwelling unit. The Landlord can also comply by posting the SCBOR Notice “in a conspicuous manner” in the building lobby next to the Housing Information Guide required to be posted on every floor next to every elevator and every stairwell.

The Tenant Protection Plan

A separate ordinance, Intro-936-A, establishes the requirements of a valid Tenant Protection Plan (“TPP”). New York City landlords will also have to provide a TPP (“TPP Notice”) in any scenario in which there will be construction or demolition work in “buildings containing occupied dwelling units”. This includes buildings that are partially occupied while contractors are still conducting construction work elsewhere in the building.

At minimum, the TPP Notice must include specific, detailed provisions for:

  1. Egress. The TPP must include how tenants can exit the building during construction
  2. Fire Safety. The TPP must include how construction will comply with the Fire Code
  3. Health Requirements. The TPP must specify means and methods to be used to control dust, disposal of construction debris, pest control, maintenance of sanitary facilities, and limitation of noise. The TPP must include a statement of “means and methods” of compliance with applicable laws on lead and asbestos.
  4. Housing Code. The TPP must state how to comply with the NYC Housing Maintenance Code and the New York State Multiple Dwelling Law (if applicable)
  5. Structural Safety. The TPP must state that no structural work shall be done that may endanger the occupants.
  6. Noise Restrictions. The TPP must state the limitations where the hours of the day or days of the week in which construction work may be undertaken are limited pursuant to the NYC Noise Control Code.
  7. Maintaining Essential Services. The TPP must specify the “means and methods” to be used for maintaining heat, hot water, cold water, gas, electricity, or other utility services; if such “essential services” are anticipated to be disrupted, for how long what “means and methods” will be employed to minimize the disruption of “essential services”.

The TPP Notice must contain a statement that “the building contains dwelling units that will be occupied during construction” and must list those units. The TPP Notice must also include the specific “means and methods” which the contractor will employ to safeguard the safety and health of all occupants throughout the construction. You have to explain your safety and health procedures  with particular detail – a bare recitation of the law, or writing “legal” or “code compliant” will not suffice.

Once the TPP Notice responsibilities attach, the landlord will have to make the TPP Notice available to all of the tenants. The TPP Notice can also be distributed to each occupied dwelling unit, or posted “in a conspicuous manner” in the building lobby and on each floor next to the elevators or stairwells.  Landlords will have to use the DOB-approved form.  

In Practice

The next time you have to conduct any significant work on a residential building, make sure that the Landlord has complied with the Notice requirements of the Safe Construction Bill of Rights and a Tenant Protection Plan. Otherwise, DOB can issue fines to the landlord on the order of a Class 1 Violation – and if that happens, there is a good chance that many landlords are going to try to pin the blame on the contractor.

Remember that the Tenant Protection Plan is not a toothless notice requirement; it is a part of your “Contract Documents”. The owner must provide written notice to DOB at least 72 hours before the contractor commences any work requiring a TPP. The contractor is obligated to comply with the TPP upon issuance of work permits.

When drafting a contract, you may want to specifically provide that the landlord is obligating to provide due notice of the Safe Construction Bill of Rights and a Tenant Protection Plan to all tenants and to DOB. If you get to the job site, and you do not see the Notice posted at entrances, stairwells, and elevators, make sure to get in writing from the Landlord that Notice has been distributed directly to all of the tenants.

According to the ordinance, DOB is going to conduct inspections of at least 5 percent of all building sites to determine compliance with the TPP. DOB is also going to conduct inspections after receiving a complaint about any such work. If DOB determines that work is noncompliant with the approved TPP, DOB can issue a stop work order.

Be wary of contracting with unscrupulous landlords. If you have any reason to believe that a potential client has ulterior motives in hiring you to do construction work, think twice about signing that contract.

If you are already on the job site, and your client asks you to do anything suspicious, give your lawyer a call. It is better to err on the side of caution than to be named as a defendant in a messy, highly-publicized lawsuit that could result in major liabilities and jeopardize your ability to obtain future work permits and future public contracts in New York City.

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