In New York v. Commons West, LLC, No. CV-23-1255 (Mar. 5, 2026), the Appellate Division of New York’s Supreme Court (dun-dun) invalidated a New York statute that forbid property owners from considering a prospective tenant’s source of income when deciding to whom to rent a property. The legislature effectively required owners to “accept Section 8 vouchers and, as a condition of participating in that program, agree to allow search of their properties and records.” Slip op. at 5. The court held this violates the warrant requirement of the Fourth Amendment.

The New York statute did not directly require property owners to open themselves up for such “administrative searches” (as in this recent case we posted about). Instead, by requiring owners to take in Section 8 tenants, the state law looped in the federal requirement that “obligate[s] landlords to make their premises and records available for searches.” Slip op. at 6. The court rejected New York’s claim that the State isn’t violating the Fourth Amendment because the State is not directly authorizing warrantless searches:

The particulars of respondents’ constitutional claim are as follows. By prohibiting discrimination based upon source of income, respondents argue, the Legislature has required landlords to accept Section 8 vouchers and, as a condition of participating in that program, agree to allow searches of their properties and records.

Slip op. at 5. It is sufficient that property owners are “indirectly compelled” to open up their premises for inspection without a warrant. Slip op. at 6.

The court also rejected the “closely regulated industry” trope, concluding that New York’s highest state court has already concluded “that the rental housing market does not constitute a closely regulated industry, a ruling that has not been overturned.” Slip op. at 7. The State argued that things have changes since 1981, and New York’s rental housing industry is today closely regulated. How’s that for chutzpah: we’ve increased our regulation of the rental housing market, so that is used to justify the regulations here, and the lessening of fundamental protections. And someone, please name us any industry in today’s world that isn’t closely regulated. Betcha can’t do it.

The court didn’t follow the State’s lead, and held that even if the rental market “should now be considered closely regulated[,]” the Section 8 inspection regime lacks the usual safeguards:

With respect to timing, although the regulations set benchmarks for when inspections should be performed ‒ at the outset of the tenancy and then at least once every two years thereafter ‒ there is no further guidance as to the frequency of the inspections and, indeed, they must be done whenever the PHA receives a complaint (see 42 USC § 1437f [o] [8] [F]; 24 CFR 982.405 [d], [e]). As for the place and scope of a search, while the regulations offer examples of interior spaces that may be searched and explain the purposes of the search, there are no limitations placed on what may be inspected. When combined with the HAP contract, which requires landlords to allow “full and free access to the contract unit and the premises, and to all accounts and other records of the owner that are relevant to the HAP contract,” the place and scope of a permissible search are exceedingly broad. Under these circumstances, the inspection scheme does not provide adequate safeguards[.]

Slip op. at 7.

The court held the New York statute facially unconstitutional:

Based upon the foregoing, Supreme Court properly granted respondents’ motion to
dismiss the petition, denied petitioner’s motion to renew, granted respondents’ cross-motion for summary judgment and declared the source-of-income provision in Executive Law § 296 (5) (a) (1) facially unconstitutional to the extent that it makes it an unlawful discriminatory practice to refuse to rent or lease housing accommodations to any person, or group of persons, because their source of income includes Section 8 vouchers. Petitioner’s remaining contentions, to the extent not expressly addressed here, have been considered and found to be without merit and/or academic.

Slip op. at 8.

As is typical for Appellate Division opinions, this one is short (9 pages). Well worth your time to read and review.

Will the State seek review by the Court of Appeals? We’re guessing so.

New York v. Commons West, LLC, No. CV-23-1255 (N.Y. App. Div. Mar. 5, 2026)