Published on February 23, 2014
Chapter 16 Heat & Hot Water Who Is Affected How to Comply—Heat All owners of buildings with three or more apartments and all owners of tenant-occupied one- or two-family dwellings must provide heat. If a building has a central heating system, an owner must provide heat every year from Oct. 1 through May 31. ■ Between the hours of 6 a.m. and 10 p.m., whenever the outside temperature falls below 55 degrees Fahrenheit, owners must maintain a temperature in their tenants’ apartments of at least 68 degrees Fahrenheit. ■ Between 10 p.m. and 6 a.m., owners must keep apartments at a minimum of 55 degrees Fahrenheit, when the outside temperature is below 40 degrees Fahrenheit. Under the state hot water law: ■ All owners of buildings with three or more apartments (i.e., multiple dwellings) built after April 18, 1929, and before Jan. 1, 1951 that are three stories or more in height; and ■ All owners of buildings with three or more apartments built after Jan. 1, 1951. Under the New York City hot water law: ■ All owners of buildings with three or more apartments built before April 18, 1929; ■ All owners of buildings with three or more apartments built after April 18, 1929, and before Jan. 1, 1951 that have fewer than three stories; and ■ All owners of tenant-occupied one- or twofamily dwellings in New York City. Devices that cut off a heating system at a predetermined time (e.g., at night) are illegal under the Housing Maintenance Code of the NYC Administrative Code, regardless of whether the devices actually cause inadequate heat to be delivered to a building. How to Comply—Hot Water Owners affected by the state law must provide hot water of at least 120 degrees Fahrenheit in every bath, shower, washbasin, and sink, 24 hours a day, every day of the year. Owners affected by the city law must provide hot water of at least 120 degrees Fahrenheit in every bath, shower, washbasin, and sink between 6 a.m. and midnight every day of the years. What Law Requires Owners must provide heat from Oct. 1 through May 31 each year. Owners affected by the state hot water law must provide hot water 24 hours a day. Owners affected by the city hot water law must provide hot water from 6 a.m. to midnight. Owners affected by the city law must also install antiscald devices when renovating bathrooms or installing new bathrooms. Owners affected by the city law must also install an anti-scald feature on the valves controlling the water supply to the tubs and showers when reno- 219
16: Heat & Hot Water vating the water supply to tubs and showers when renovating bathrooms (which involves breaking into a wall) or installing new ones. The anti-scald feature must prevent the temperature from exceeding 120 degrees Fahrenheit. The temperature of the water discharged from these fixtures must be 110 degrees Fahrenheit or higher. Deadlines The heating season runs from Oct. 1 through May 31. Owners must provide hot water every day of the year. Penalty for Failure to Comply An owner who installs an illegal timing device is subject to a one-time fine of up to $1,000, plus $25 per day for each day that he fails to remove the device after being ordered to do so. Effective June 2012, if a heat violation is the first heat violation issued during the current or prior heat season, or a hot water violation is the first such violation issued during the current or previous calendar year, the Notice of Violation that the owner receives in the mail will clearly indicate whether the violation is eligible for payment of $250 in satisfaction of civil penalties without a court proceeding. An owner who chooses to submit a Notice of Correction and payment in satisfaction may do so by submitting a paper Notice of Correction or by using eCertification. For more information on eCertification go to HPD’s Web site at www.nyc/hpd. The Notice of Correction indicates that the violation has been corrected within 24 hours of the affixing of the violation notice. The payment of $250 must be submitted with the Notice of Correction to the department within 10 days of affixing the notice of such violation. Payment can be made via credit card online, or by certified check or money order if submitting the Notice of Correction by mail. If the Notice of Correction and payment are not received within the 10-day period, then HPD may commence a proceeding for an order to correct and to recover civil penalties in Housing Court. Effective October 2012, if HPD commences a proceeding, the agency can seek the following penal- 220 ties under New York City law, from and including the date that the Notice of Violation is posted at the building until the date that the violation is corrected: $250–$500 per day for each initial heat or hot water violation; ■ $500–$1,000 per day for each subsequent violation at the same building during the same and/ or the next calendar year from the initial violation or, in the case of §27-2029(a) concerning provision of heat from Oct. 1 through May 31, during the same and/or the next heat season. ■ If the owner fails to pay the court-ordered civil penalties, HPD will enter a judgment against the owner and the property and seek to enforce that judgment. Effective June 2012, for a third or any subsequent inspection that results in a heat violation within the same heat season (October through May) or for a third or any subsequent inspection that results in a hot water violation within a calendar year, HPD will charge a fee of $200 for the inspection. In addition to this fee, the owner is still also subject to any civil penalties that may be imposed by the Housing Court. This fee is not paid directly to HPD, but will be billed to the owner though the Department of Finance; the owner will see the charge on the Statement of Account from DOF on the quarterly bill following the inspection. All fees that remain unpaid shall constitute a debt recoverable from the owner and a lien upon the premises. Should the lien exceed $1,000 for more than one year, the liens may subject you to the NYC Tax Lien Sale. Through this process, the lien may be sold to a third party, who may foreclose on the property if the lien is not paid. Owners who violate the state hot water law by not providing hot water as required may be fined $500 or imprisoned for up to 30 days. Owners who violate the city hot water law by not providing hot water as required may be fined between $250 and $500 a day for a first violation during the calendar year, and between $500 and $1,000 a day for each subsequent violation during the same year. Owners who do not install the anti-scald features on the valves of tubs and showers in new or renovated bathrooms can be fined up to $500 for each violation. 2013 NYC Apartment Management Checklist
16: Heat & Hot Water Tenants who do not receive adequate heat or hot water may obtain rent abatements in court by proving the date, duration, and intensity of the deficiency. For example, see Ele v. Ayanru, NYLJ, 3/20/02, p. 22, col. 4 (App. T. 1 Dept.). Forms Required None. For Further Information If you have any questions about your duty to provide heat or hot water, contact your local borough office of the Dept. of Housing Preservation and Development’s (HPD) Division of Code Enforcement (see Appendix A: Telephone Directory). Owners also can view HPD’s video called “Heat and Hot Water in Residential Buildings” online at www.nyc.gov/html/hpd/html/tenants/heat-and-hotwater.shtml. TEXT OF LAW The following laws apply: NYC Administrative Code, §§27-2029, 27-2031, and 27-2115(k); NYC Administrative Code, App. to Title 27, Reference Standard RS-16, §P107.6(i); NYS Multiple Dwelling Law, §75(3). Admin. Code, §27-2029: Minimum temperature to be maintained a. During the period from October 1 through May 31, centrally-supplied heat, in any dwelling in which such heat is required to be provided, shall be furnished so as to maintain, in every portion of such dwelling used or occupied for living purposes: (1) between the hours of six a.m. and ten p.m., a temperature of at least 68 degrees Fahrenheit whenever the outside temperature falls below 55 degrees; and (2) between the hours of ten p.m. and six a.m., a temperature of at least 55 degrees Fahrenheit whenever the outside temperature falls below 40 degrees. b. During the period from October first through May thirty-first, all central heating systems required under this article shall be maintained free of any device which shall cause or which is capable of causing an otherwise operable central heating system to become incapable of providing the minimum requirements of heat or hot water as required by this article for any period of time. This subdivision shall not apply to any safety device required by law, or by a rule or regulation of any city agency, to be used in conjunction with a central heating system. Admin. Code, §27-2031: Supply of hot water; when required Except as otherwise provided in this article, every bath, shower, washbasin and sink in any dwelling unit in a multiple dwelling or tenant-occupied one-family 2013 NYC Apartment Management Checklist or two family dwelling shall be supplied at all times between the hours of six a.m. and midnight with hot water at a constant minimum temperature of 120 degrees Fahrenheit from a central source of supply constructed in accordance with the provisions of the building code and the regulations of the department [of housing preservation and development], provided however that baths and showers equipped with balanced-pressure mixing valves, thermostatic mixing valves or combination pressure balancing/thermostatic valves may produce a discharge temperature less than one hundred twenty degrees Fahrenheit but in no event less than one hundred ten degrees Fahrenheit. Gas or electric heaters may, if approved by the department, be utilized in lieu of a central source of supply of hot water if such heaters: (1) are lawfully in use on July fourteenth, nineteen hundred sixty-seven; or (2) are approved by the appropriate city agencies having jurisdiction and are installed in a structure or building erected, converted, substantially rehabilitated or completely vacated after July fourteenth, nineteen hundred sixty-seven. Admin. Code, §27-2115(k): Imposition of civil penalty (1) (i) Notwithstanding any other provision of law, a person who violates section 27-2028, subdivision a of section 27-2029, section 27-2031 or section 27-2032 of this chapter shall be subject to a civil penalty of not less than two hundred fifty nor more than five hundred dollars per day for each violation from and including the date the notice is affixed pursuant to paragraph two of this subdivision until the date 221
16: Heat & Hot Water the violation is corrected and not less than five hundred nor more than one thousand dollars per day for each subsequent violation of such sections at the same dwelling or multiple dwelling that occurs within two consecutive calendar years or, in the case of subdivision a of section 27-2029, during two consecutive periods of October first through May thirtyfirst. A person who violates subdivision b of section 27-2029 of this chapter shall be subject to a civil penalty of twenty-five dollars per day from and including the date the notice is affixed pursuant to paragraph two of this subdivision until the date the violation is corrected but not less than one thousand dollars. There shall be a presumption that the condition constituting a violation continues after the affixing of the notice. (ii) Notwithstanding the provisions of subparagraph (i) of this paragraph and section 27-2116 of this chapter, the civil penalties set forth in subparagraph (i) of this paragraph shall be deemed satisfied for a first violation of section 27-2028, subdivision a of section 27-2029, section 27-2031 or section 27-2032 of this chapter if a notice, in a form prescribed by the department, that such violation has been corrected by the owner or an agent or employee of the owner within twenty-four hours of the affixing of the notice of such violation pursuant to paragraph two of this subdivision, and a payment of two hundred fifty dollars, are submitted to the department within ten days of affixing the notice of such violation. A person who submits a false notice of correction shall be subject to a civil penalty of not less than two hundred fifty dollars for each false notice of correction, in addition to the other penalties herein provided. If the notice of correction and payment are not received within such ten-day period then the penalties set forth in subparagraph (i) of this paragraph shall be applicable to such violations and the department may commence a proceeding for an order to correct and to recover such penalties in accordance with this section and section 27-2116 of this chapter. A person who has violated section 27-2028, subdivision a of section 27-2029, section 27-2031 or section 27-2032 of this chapter may allege as a defense or in mitigation of liability for civil penalties, compliance with the notice of correction and payment requirements of this subparagraph in any proceeding brought by the department seeking civil penalties under this subdivision. The process for submission of the notice of correction and payment set forth in this subparagraph shall not be available if a violation of section 27-2028, section 27-2031 or section 27-2032 of this chapter occurred at the same dwelling or multiple dwelling during 222 the prior calendar year or, in the case of subdivision a of section 27-2029 of this chapter, if a violation of such subdivision occurred at the same dwelling or multiple dwelling during the prior period of October first through May thirty-first. (iii) Notwithstanding any other provision of law, within five business days from the date of receipt of the notice of correction by the department, the department shall mail to the occupant of any dwelling unit for which such violation was issued notification that the owner has submitted a notice of correction for such violation. The notification to the occupant shall include information on when the violation was reportedly corrected and how the occupant may object to such notice of correction. In addition, the provisions of paragraphs 4 and 5 of subdivision f of this section shall also be applicable to a notice of correction submitted in compliance with subparagraph (ii) of this paragraph. (iv) Notwithstanding any other provision of law, a person who, after inspection by the department, is issued an immediately hazardous violation for a third or any subsequent violation of section 27-2028, section 27-2031 or section 27-2032 of this chapter at the same dwelling or multiple dwelling within the same calendar year or, in the case of subdivision a of section 27-2029 of this chapter, at the same dwelling or multiple dwelling within the same period of October first through May thirty-first, shall be subject to a fee of two hundred dollars for each inspection that results in the issuance of such violation as well as any civil penalties that may be due and payable for the violation, provided, however, that such fee shall not be applicable to inspections performed in a multiple dwelling that is included in the alternative enforcement program pursuant to article ten of subchapter five of this chapter. All fees that remain unpaid shall constitute a debt recoverable from the owner and a lien upon the premises, and upon the rents and other income thereof. The provisions of article eight of subchapter five of this chapter shall govern the effect and enforcement of such debt and lien. (2) Notwithstanding any other provision of law, the department shall serve a notice upon the owner, his or her agent or other person responsible for the correction of violations by affixing such notice in a conspicuous place on the premises. The notice shall identify the condition constituting the violation, the provision of law applicable thereto, the date the violation was reported and set the penalty attendant thereto. (3) Notwithstanding any other provision of law, the owner shall be responsible for the correction of all violations placed pursuant to article eight of sub- 2013 NYC Apartment Management Checklist
16: Heat & Hot Water chapter two of this code, but in an action for civil penalties pursuant to this article may in defense or mitigation of such owner’s liability for civil penalties show: (i) That the condition which constitutes the violation did not exist at the time the violation was placed; or (ii) That he or she began to correct the condition which constitutes the violation promptly upon discovering it but that full correction could not be completed expeditiously because of technical difficulties, inability to obtain necessary materials, funds or labor, or inability to gain access to the dwelling unit wherein the violation occurs, or such other portion of the building as might be necessary to make the repair; or (iii) That he or she was unable to obtain a permit or license necessary to correct the violation, provided that diligent and prompt application was made therefore; or (iv) That the violation giving rise to the action was caused by the act or negligence, neglect or abuse of another not in the employ or subject to the direction of the owner; or (v) That in addition to any other defense or mitigation set forth in subparagraphs (i) through (iv) of this paragraph, with respect to an owner who may be subject to the penalty of not less than five hundred nor more than one thousand dollars per day with respect to a subsequent violation pursuant to paragraph one of this subdivision, documentation of prompt and diligent efforts to correct the conditions that gave rise to an initial violation and that such conditions were corrected. Where demonstrated, such subsequent violation shall be treated as though it was an initial violation. However, this defense or mitigation may not be asserted or demonstrated where the initial and subsequent violations occurred in the same calendar year or, in the case of violations of subdivision 2013 NYC Apartment Management Checklist a of section 27-2029, during the same period of October first through May thirty-first. Where the aforesaid allegations are made by way of mitigation of penalties, the owner shall show, by competent proof, pertinent financial data, and efforts made to obtain necessary materials, funds or labor or to gain access, or to obtain a permit or license and such other evidence as the court may require. If the court finds that sufficient mitigating circumstances exist, it may remit all or part of any penalties arising from the violation, but may condition such remission upon a correction of the violation within a time period fixed by the court. Admin. Code, App. to Title 27, Reference Standard RS-16, §P107.6(i): Bath and shower valves Valves for individual showers or bathtubs, or multiple gang showers shall be balanced pressure-mixing valves, or thermostatic mixing valves, or combination pressure balancing/thermostatic valves, conforming to the requirements of ASSE 1016 (December 1988). Water temperature control valves shall be equipped with high-limit stops adjusted to a maximum hot water setting of 120 degrees Fahrenheit (49 degrees Celsius). NYS Multiple Dwelling Law, §75(3): Water supply For dwellings three or more stories in height erected on or after April eighteenth, nineteen hundred twentynine, and for all dwellings erected after January first, nineteen hundred fifty-one, such supply shall include both hot and cold water at all times of the year, during all hours, except that hot water service shall not be required by this section in a dwelling erected before April eighteenth, nineteen hundred twenty-nine, if the owner establishes to the satisfaction of the department that such service was not furnished or required before such date. 223
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