New York State Supreme Court finds Section 8 inspection requirement unconstitutional

July 14, 2023 Rob Abruzzese

New York State Supreme Court Judge Mark Masler delivering the landmark ruling that the mandatory inspection requirement of the Section 8 program violates constitutional protections against unreasonable searches. Photo courtesy of Mark Masler on Twitter, @Masler4Supreme.

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New York State Supreme Court Judge Mark Masler has sided with Ithaca Renting Company, a local landlord with a broad portfolio of commercial properties and apartment buildings.

The case stems from a lawsuit filed by the Office of the New York State Attorney General against the company last fall, accusing it of income discrimination for refusing to rent apartments to prospective tenants using Section 8 housing vouchers.

However, the Supreme Court’s ruling found in favor of Ithaca Renting’s argument that the mandatory inspection requirement under the Section 8 program contravenes the Constitution’s protection against unreasonable searches.

Judge Masler asserted in his June 27 ruling that the Attorney General’s argument is fundamentally flawed. He stated that the stipulations of the Section 8 program compel participating landlords to authorize warrantless searches, which are a direct violation of the Fourth Amendment.

The judge highlighted that the Housing Assistance Payment (HAP) contract requires landlords to allow inspections of the premises at any time the Public Housing Authority (PHA) deems necessary. Moreover, they must provide the PHA, the Department of Housing and Urban Development, and the Comptroller General of the United States with unrestricted access to all accounts and records relevant to the HAP contract.

This landmark decision might create a tension with New York State law, which restricts landlords from accessing a tenant’s apartment without providing “reasonable notice,” barring emergencies.

Critics of the ruling expressed disappointment, arguing that the decision could adversely impact the most vulnerable members of society who rely on Section 8 housing.