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NY Eviction Moratorium

By Stephanie Wiegand, Esq. August 16, 2021 Posted in Landlord/Tenant Law

Over the last year and a half, since March 2020, there have been major changes in the landlord/tenant procedure in New York State in response to the on-going COVID-19 pandemic.  Many of these changes have been through executive orders in addition to adoption of new law that affects landlords’ and tenants’ right throughout the state.  Along with the state regulations, there are federal protections in place to assist tenants during these trying times.  Navigating the nuances of these regulations is becoming increasingly difficult for landlords, as courts at all levels, including the United States Supreme Court, are ruling to uphold or strike down parts of the laws that have been adopted.  Below is an overview of some of the current state and federal regulations and protections in place, specific to New York, and the current status of same.  Please note that, like everything else since March 2020, the status of these rules is subject to change at a moment’s notice.  We strive to keep our clients up-to-date on the latest information available.

NYS Covid-19 Emergency Eviction and Foreclosure Prevention Act

As you know, the 2020 NYS Covid-19 Emergency Eviction and Foreclosure Prevention Act provides that tenants who submit a Hardship Declaration to their Landlord or the Court will remain protected from evictions in both nonpayment and holdover cases until August 31, 2021, unless the tenant is creating a safety health hazard or if their behavior constitutes a nuisance for other tenants.  This Act does not cancel or forgive rent owed by tenants.  

Just recently, on August 12, 2021, the U.S. Supreme Court held that the self-attesting hardship declaration that tenants can submit to stay an eviction proceeding denied landlords their due process.  The Court’s order stressed that it applied only to a provision in the Act that bars the eviction of tenants who file the Hardship Declaration claiming that they have suffered economic setbacks as a result of the pandemic, rather than providing evidence in court.  The court held that “this scheme violates the court’s longstanding teaching that ordinarily ‘no man can be a judge in his own case,’” The order left other parts of the law intact, including a provision that instructed housing judges not to evict tenants who have been found to have suffered financial hardship.

While we believe that this decision is a step in the right direction, it is doubtful we see much movement in the courts with respect to cases that have been stayed because of a tenant submitting a Hardship Declaration.  This is for a number of reasons.  First is that most cases in which a tenant submitted any hardship application (state or federal) have been adjourned for a hearing after the August 31 moratorium expiration date.  Therefore, these cases do not have the opportunity to move forward more quickly because they will not come before a judge again this month.  Second, the sheer number of backlogged cases in Housing Court means that many cases have been adjourned by the Court indefinitely or marked off the calendar because they do not have the capacity to hear them all.  Lastly, there is always the possibility that the moratorium may be extended.  Two members of the New York legislature proposed a bill that would extend the New York eviction moratorium through October 31, 2021.  Additionally, New York Lt. Gov. Kathy Hochul, who will replace Andrew Cuomo as Governor when he resigns on August 24, 2021, stated that she is looking forward “to working with the Legislature to quickly address the Supreme Court’s decision & strengthen the eviction moratorium legislation.”

The CDC Extends the Eviction Moratorium

Even if the New York act expires at the end of this month, on August 3, 2021, the CDC issued a new order that prohibits evictions in parts of the country experiencing “substantial transmission” of the COVID-19 virus.  Counties experiencing substantial or high rates of transmission, as defined by the CDC, fall under the order.  As of this date, almost all counties in New York state, including all five boroughs of New York City, have been designated as counties experiencing a high rate of transmission and fall under the order.  If cases are still rising significantly when New York’s eviction protections expire on August 31st, the CDC’s order will protect tenants through October 3, 2021, when the order expires.  Additionally, the CDC moratorium will lift in counties after the level of community transmission declines for 14 consecutive days.   

In order to qualify for protection from eviction, the tenant must swear in a declaration form under penalty of perjury, that they have used best efforts to obtain all available governmental assistance for rent or housing; and

  1. The tenant either (i) earned no more than $99,000 ($198,000 if tenant is a joint filer) in 2020 or expects to earn no more than those amounts in 2021, (ii) was not required to report income in 2020, or (iii) received an stimulus check);
  2. The tenant cannot pay full rent or make a full housing payment due to substantial loss of income, loss of compensable hours of work, a layoff, or extraordinary medical expenses;
  3. The tenant is using best efforts to make timely partial rent payments as close to the full amount as tenant’s circumstances may permit;
  4. Eviction would likely render the tenant homeless; and
  5. The tenant resides in a U.S. county experiencing substantial or high rates (as defined by the CDC) of community transmission levels of COVID-19.

New York Landlords May Begin Charging Late Fees

On May 7, 2020, Governor Cuomo signed Executive Order 202.28 prohibiting a landlord from charging a tenant late fees for failing to pay rent when due.  Following this initial Order, the Governor issued many subsequent Orders, most recently Executive Order No. 202.110, extending this prohibition.  On June 24, 2021, however, Governor Cuomo signed Executive Order No.210 declaring Executive orders Nos. 202 through 202.111 no longer necessary and rescinded Executive Orders Nos. 202 through 202.111 effective June 25, 2021.  Thus, it is our opinion that a Landlord can begin charging a tenant late fees for failing to pay rent when due.  Please note, however, Section 702 of the NY Real Property Law only allows base rent to be sought in an eviction proceeding and requires a landlord to seek late fees and other charges from a tenant in a separate plenary action. 

New York Emergency Rental Assistance Program

In June of this year, the New York State Office of Temporary and Disability Assistance is accepting applications for the New York State Emergency Rental Assistance Program (ERAP).  As a reminder, a property owner or authorized property management company must agree to the following terms as a condition of accepting rental arrears payments:

  • The ERAP payment satisfies the tenant’s full rental obligations for the time period covered by the payment.
  • Waive any late fees due on any rental arrears covered by the ERAP payment.
  • Not increase the monthly rental amount above the monthly amount due at the time of application for ERAP assistance for months for which rental assistance is received and for one year from receipt of the ERAP payment.
  • Not evict the household on behalf of whom the ERAP payment is made for reason of expired lease or holdover tenancy for one year from the receipt of the ERAP payment. An exception to this requirement shall be made if the dwelling unit contains four or fewer units and the property owner or owner’s immediate family members intend to immediately occupy the unit for use as a primary residence. 

We will continue to monitor the various regulations as they are extended, disposed of, and/or ruled upon by an appropriate court.  If you have any questions, please contact our office.

The information in this Client Alert is provided solely for information purposes. It should not be construed as legal advice on any specific matter and is not intended to create an attorney-client relationship. The information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular circumstances.  Each legal matter is unique, and prior results do not guarantee a similar outcome.


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