BARRISTER'S BRIEFING: Update: Reasonable Modifications and Accommodation Notification

Brian Levine | June 16, 2022

Brian Levine, Esq.

As you all may recall, back in 2021, as a part of sweeping legislation designed to curb discrimination, Gov. Kathy Hochul signed into law a provision that empowered the New York State Division of Human Rights to “promulgate regulations requiring every housing provider … to provide notice to all tenants and prospective tenants … of their rights to request reasonable modifications and accommodations.” We know this regulation as the Reasonable Modification and Accommodation Notice. After it was signed into law, there was a 45-day comment period. That 45-day comment period ended on April 30, 2022 and the NYS Division of Human Rights published the final, approved regulations on May 18, 2022, adding 9 NYCRR 466.15 that provides guidance for compliance for all real estate licensees and landlords. The regulations include definitions, examples of reasonable modifications and accommodations as well as a sample copy of the notice. Below I have provided a breakdown of the key components.

The Regulation

The regulation requires real estate licensees and landlords to provide a notice that sets forth the rights a disabled individual has with regard to requesting reasonable modifications or accommodations to or in the “housing accommodation.” It applies to any and all rental properties.

Broker/Agent/Team Requirements

Form

• The writing must be in 12-point font or larger, or some other easily legible font.

• It may be physically presented or presented by e-mail, text, electronic messaging systems or facsimile.

• It can be sent via an electronic communication containing a link to the notice, provided the communication also contains text to inform the prospective tenant that the link contains information regarding the tenants’ rights to reasonable accommodations for persons with disabilities.

• Additionally, the notice must be available for printing and downloading.

• If the communication is in paper form, the notice may be included either with the communication or as an accompanying document.

• Oral notification is not permitted.

• Notification is not permitted by posting the notice on a bulletin board, notice area or electronic bulletin board.

• There is no requirement to have the form signed.

• Electronic delivery would provide “proof” that it was presented.

When Presented

• It is NYSAR’s opinion that the tenant’s agent must provide the notice to all prospective tenants.

• The notice must be provided at “first substantive contact” with a prospective tenant, which is similar to the notice required when providing an Agency Disclosure Form and the Housing and Anti-Discrimination Disclosure Form.

• It is also recommended that the notice be provided to current clients as well.

Posting on Websites

• A link to the division’s notice must be prominently and conspicuously displayed on the homepage of all broker/agent/team websites.

Posting at the Rental Property

The notice must be posted at all property locations conspicuously, in an easily accessible and well-lighted place, where it may be readily observed by those seeking such housing accommodations and/or modifications

Posting at Real Estate Offices

The notice must be conspicuously displayed in all real estate offices in an easily accessible, well-lighted location where the notices may be readily observed by those seeking housing accommodations.

Landlord/Managing Agent Requirements

• The landlord/managing agent requirement for posting the notice are similar to those of general licensees, with only a few differences:

• The notice is required to be provided to a tenant within 30 days of the beginning of tenancy.

• The notice is required to be provided to current tenants within 30 days of the effective date of the regulation (Note: The regulation became effective 3/2/21, so the notice must be provided as soon as possible for current tenants).

• If provided in writing, it must be in 12-point font or larger, or another easily legible font.

• It must include the telephone number(s) and e-mail of the property manager or other person responsible for accepting reasonable accommodation requests.

• It can be sent via an electronic communication containing a link to the notice, provided the communication also contains text to inform the prospective tenant that the link contains information regarding the tenants’ rights to reasonable accommodations for persons with disabilities.

• Additionally, the notice must be available for printing and downloading.

• If the communication is in paper form, the notice may be included either with the communication or as an accompanying document.

• The notice can be included with other written communications, such as a lease or other materials routinely provided to tenants.

• Oral notification is not permitted.

• Notification is not permitted by posting the notice on a bulletin board, notice area, or electronic bulletin board.

• There is no requirement to have the form signed.

• Electronic delivery would provide “proof” that it was presented.

NYSAR Forms

NYSAR has developed two notices.

• One is for when the licensee knows the managing agent information where accommodation or modification questions, requests and/or complaints should be addressed.

• One is for when the licensee does not know the managing agent information where accommodation or modification questions, requests and/or complaints should be addressed.

• To access NYSAR’s sample notices, you can go to the NYSAR website at:  nysar.com.

Conclusion

Compliance with the Reasonable Accommodation and Modification Notice is not difficult. It is very similar to other regulatory requirements when it comes to posting and presenting. It is important that licensees, especially Brokers, speak to their legal counsel to ensure proper compliance. Lastly, as a final note, NYSAR recommends that licensees do not advise their owners on how to comply with this law. Simply inform them that the law exists, that there are compliance rules that they and the licensee must comply with, and direct them to their own counsel for further questions.

Additional questions regarding the Reasonable Accommodation and Modification Notice can be directed to the NYSAR Legal Hotline. The Legal Hotline is available Monday-Friday, 9:00 a.m.- 4:00 p.m. at 518-436-9727.

Brian Levine
Brian S. Levine, Esq. is In-House Counsel/Director of Legal Services & Professional Standards Administrator for the Hudson Gateway Association of Realtors.