Should I Stay or Should I Go: Understanding the Ever-Changing Status of New York’s Eviction Moratorium

Aug 20, 2021
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Should I Stay or Should I Go: Understanding the Ever-Changing Status of New York’s Eviction Moratorium

By: Michael A. Curatola, Esq.

One of the biggest impacts of the Covid-19 pandemic has been the disruption of many tenants’ ability to pay their rent. In response, various entities from the federal and state governments to the Centers for Disease Control (CDC) have enacted eviction moratoriums; a pause on the legal proceedings that a landlord must initiate before a tenant can be removed from their home. Each moratorium operates differently, and each has been challenged in court. One challenge to New York’s law made it all the way to the United States Supreme Court, which issued a ruling last week blocking the operative part of the law that suspended evictions.

Recapping the Timeline

In March 2020, Governor Cuomo issued Executive Order 202.8, which temporarily paused evictions until June 2020. This moratorium was extended via executive order multiple times, and in July 2020, the New York state legislature passed the Tenant Safe Harbor Act, which prevented tenants from being evicted for unpaid rent that came due during the Covid-19 “covered period” if they have suffered financial hardship. Tenants remain responsible for the unpaid rent and must prove their financial hardship in court.

In December 2020, the New York State legislature passed the Covid-19 Emergency Eviction and Foreclosure Prevention Act of 2020. The act provided strong protections for both tenants and homeowners by forestalling any eviction or foreclosure proceeding where the delinquent party submitted a hardship declaration attesting to financial difficulty related to the pandemic. Landlords with fewer than 10 rental units also had the option of submitting a hardship declaration to their mortgage lender. When originally passed, the moratorium expired on May 1, 2021, but was subsequently extended to August 31, 2021.

SCOTUS Weighs In

The hardship declarations were at the forefront of the Court’s reasoning. Because they are self-certifying, the Court ruled, the hardship declarations violate the Due Process Clause by precluding landlords from having an opportunity to contest the certification or have their day in court. A hardship declaration is a standard form prepared by the New York court system that landlords must serve upon their tenants before commencing an eviction proceeding under the new law, and does not require any supporting evidence beyond a tenant’s signature.

Contrary to Justice Kavanaugh’s concurrence in the Court’s ruling on the federal eviction moratorium, the majority was not willing to consider leaving the provision in place due to the immediacy of its termination date on August 31st. This may represent the history of prior extensions as well as a recognition that unlike the federal case, in which a majority of the Court indicated that the federal eviction moratorium could potentially be salvaged through legislative action (as opposed to a CDC directive), there is no legal manner to remedy the challenged provision’s inherent due process infirmities.

The Supreme Court did not strike down the law in its entirety, though, leaving intact a provision that still bars the eviction of tenants who have been found to have suffered Covid-related financial hardships in court; a more stringent threshold than the submittal of a signed declaration. The earlier Tenant Safe Harbor Act also remains in effect, limiting a landlord’s remedies in an eviction proceeding against a tenant with court-found financial hardship to a judgment for the rent due.

Neither did the Supreme Court’s ruling effect New York’s ban on eviction of tenants who have applied for the state’s rent relief program, nor the federal eviction moratorium which covers New York, though the latter is working its way through the appeals court at the time of this writing.

What Comes Next?

Tenants may no longer be able to stop an eviction proceeding in its tracks by submitting a self-certifying affidavit, but evictions are still barred if the tenant demonstrates in court that they are suffering from pandemic-induced financial hardships. In making this determination, the housing court will consider a tenant’s income prior to and during the pandemic, their liquid assets, and their eligibility for certain government benefits.

On August 17, Hon. Lawrence K. Marks, the Chief Administrative Judge of the New York Unified Court System, issued a memorandum addressing how the Supreme Court ruling would change certain eviction procedures in the state. The memo advised that the court “should commence restoring stayed proceedings to active calendars, keeping in mind that existing state and federal moratoria or a stay pending a rental assistance application may still apply.”

The reference to a stay pending rental assistance directly relates to an Administrative Order issued by Judge Marks on August 13, which directed that any petitioner in an eviction proceeding must give notice (via another standard form) if any of the following apply:

-They have been notified of a pending application for emergency rental assistance by respondent-tenant

-They applied for emergency rental assistance on behalf of respondent-tenant and the application is pending

-They received emergency rental assistance on behalf of respondent-tenant

These options provide tenants with potential alternatives to stay in an eviction proceeding other than the discontinued hardship affidavits.

Tenants living in areas experiencing substantial or high rates of community transmission, also remain covered by the federal moratorium through October 3rd (unless further extended or prematurely terminated by pending legal action). Even if a landlord were to overcome all these factors, the state’s court system remains in a state of severe backlog, with many cases being delayed for over a year. By the New York City Housing Court’s own estimation, there are approximately 18,000 eviction proceedings from before March 17, 2020, that have not yet been restored to court calendars. Landlords should consider the backlog as well as the possible long-term viability of the federal moratorium in determining a prudent course of action to remedy non-payment defaults.

In the case of eviction proceedings that predate the pandemic, new guidance appears to set the wheels back in motion for NYC cases: Administrative Judge Carolyn Walker-Diallo issued a directive dated August 16, 2021, stating that the court will now accept requisitions for warrants of eviction based on judgments of possession that were issued before March 17, 2020. According to the directive, all such requisitions must be presented by motion on notice to the respondent. Additionally, petitioners seeking to enforce a warrant of eviction issued before March 17, 2020, must seek leave of the court by motion on notice to respondent.

While the headline “Supreme Court Strikes Down New York’s Eviction Ban” may lead to an assumption that evictions can now immediately begin in the state once again, that is not necessarily the case. The Supreme Court’s decision found that New York State’s broadest and strongest measure was unconstitutional. But, as described above, there are other tenant protections in place that still remain in effect.

DISCLAIMER: This summary is not legal advice and does not create any attorney-client relationship. This summary does not provide a definitive legal opinion for any factual situation. Before the firm can provide legal advice or opinion to any person or entity, the specific facts at issue must be reviewed by the firm. Before an attorney-client relationship is formed, the firm must have a signed engagement letter with a client setting forth the Firm’s scope and terms of representation. The information contained herein is based upon the law at the time of publication.

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