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Electronic Lease Offering and Tenant’s Voluntary Consent

04/1/2022

On March 25, 2022, the DHCR issued Operational Bulletin 2022-1, entitled “Electronic Lease Offering and Tenant’s Voluntary Consent”, as a result of the recent enactment of Chapter 74 of the Laws of 2022, which requires property owners to obtain the written consent from tenants to accept electronic lease offerings. The new rules do not require owners to offer electronic leases, and do not permit owners to require tenants to sign electronic leases.

The DHCR also promulgated form EL-TVC entitled, “Electronic Lease Offer: Tenant’s Voluntary Consent Form” which is the standard form to obtain consent. The Consent Form must be completed by the owner and served on the tenant by email, placement in an electronic portal, or by personal service or mail, if necessary. Although the Operational Bulletin allows for service of the Consent Form either prior to or concurrent with the lease or renewal lease offer, the instructions included with the Consent Form provide that consent must be obtained prior to the use of electronic records to execute a lease or renewal form.

Tenants may consent to electronic lease offers by signing the Consent Form, which can be done manually or electronically, and then return it to the owner by regular mail or personal service. Absent a signed Consent Form from the tenant, an owner cannot offer leases electronically, nor can an owner require electronic signatures. Other than spouses or domestic partners, all tenants must sign the Consent form in order for the consent to be effective. Once signed, the consent is applicable for the entirety of the tenancy, however, owners and tenants may opt-out at any time upon written notice to the other. If there is any change in the information of either an owner or tenant, both parties are required to provide written notice to the other and a new Consent Form must be completed.

The DHCR goes on to explain that owners may utilize whichever software product or electronic portal to facilitate lease offerings that they so choose, however, owners must use the DHCR form lease renewal form (i.e., RTP-8) and must adhere to the timeframes for offering a lease renewal.

Owners and tenants must maintain proof of service of the Consent Form, the lease renewal offer, and the acceptance or refusal. According to the DHCR, proof of service should include, but not be limited to, as many of the following elements as possible: identity of sender and recipient, date of transmission, subject matter, attachments, and/or electronic links to documents, regardless of whether the transmission was done by personal email, electronic portal, or some other alternatives. Regardless of the method of service used, owners must be able to print copies of electronic communications and all documents for submission in any court or administrative proceeding. This is especially important when it comes to renewal leases.

Below are links to the Operational Bulletin and the consent form.

We hope this summary is helpful. As you know, our attorneys are always available to answer any questions or concerns you may have.

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