UPDATES TO THE NEW YORK EVICTION MORATORIUM

By Jennifer L. Alexander, Esq. September 7, 2021 Posted in Landlord/Tenant Law Share

On Wednesday, September 1, 2021, the New York Legislature passed 2021 N.Y. SB 1, extending its eviction moratorium through January 15, 2022. This extension comes on the heels of the August 12, 2021, decision from the United States Supreme Court which knocked down key portions of the New York eviction moratorium (you can read more about that decision in our blog here).

The New York eviction moratorium applies to both residential and commercial tenants. Landlords must include a “Hardship Declaration” with every written notice sent to the tenant prior to the commencement of an eviction proceeding, as well as with every notice of petition or summons and complaint served on the tenant. The Hardship Declaration should read substantially as follows (NOTE: there are different versions for commercial and for residential tenancies):

For Commercial Tenancies

NOTICE TO COMMERCIAL TENANT: If you have lost significant revenue or had significantly increased necessary costs during the COVID-19 pandemic, and you sign and deliver this hardship declaration form to your landlord, you may be protected from eviction until at least January 15, 2022 for nonpayment of rent or for holding over after the expiration of your lease. If your landlord files an eviction against you and you provide this form to the landlord or the court, the eviction proceedings will be postponed until January 15, 2022 unless your landlord moves to challenge your declaration of hardship. If the court finds your hardship claim valid, the eviction proceedings will be postponed until after January 15, 2022. While the eviction proceedings are postponed, you may remain in possession of your unit. You may still be evicted for violating your lease by intentionally causing significant damage to the property or persistently and unreasonably engaging in behavior that substantially infringes on the use and enjoyment of other tenants or occupants or causes a substantial safety hazard to others.

If your landlord has provided you with this form, your landlord must also provide you with a mailing address and e-mail address to which you can return this form. If your landlord has already started an eviction proceeding against you, you can return this form to either your landlord, the court, or both at any time. You should keep a copy or picture of the signed form for your records. You will still owe any unpaid rent to your landlord. To the extent you can pay less than the full rent, it is recommended you do so and keep careful track of what you have paid and any amount you still owe.

COMMERCIAL TENANT’S DECLARATION OF HARDSHIP DURING THE COVID-19 PANDEMIC

I am the owner, chief executive officer, president, or similar officer of (name of business), in which is a commercial tenant at (address of commercial unit). My business is resident in New York state, independently owned and operated, not dominant in its field, and employs one hundred or fewer persons. My business is experiencing financial hardship, and is unable to pay the rent in full or other financial obligations under the lease in full or obtain an alternative suitable commercial property because of one or more of the following:

Significant loss of revenue during the COVID-19 pandemic.
Significant increase in necessary expenses related to providing personal protective equipment to employees or purchasing and installing other protective equipment to prevent the transmission of COVID-19 within the business.

iii. Moving expenses and difficulty in securing an alternative commercial property make it a hardship for the business to relocate to another location during the COVID-19 pandemic.

To the extent the business has lost revenue or had increased expenses, any public assistance the business has received since the start of the COVID-19 pandemic must not fully make up for the business’s loss of revenue or increased expenses, and the business still meets the aforementioned eligibility criteria to qualify for a financial hardship. I understand that the business must comply with all other lawful terms under its commercial tenancy, lease agreement or similar contract. I further understand that lawful fees, penalties or interest for not having paid rent in full or met other financial obligations as required by the commercial tenancy, lease agreement or similar contract may still be charged or collected and may result in a monetary judgment. I further understand that the landlord may request a hearing to challenge the certification of hardship made herein, and that I will have the opportunity to participate in any proceedings regarding the tenancy. I further understand that the landlord may be able to seek eviction after January 15, 2022, and that the law may provide certain protections at that time that are separate from those available through this declaration. I understand that I may be eligible to receive financial assistance from the State of New York under the Pandemic Small Business Recovery Grant Program or similar relief program, and that I may visit https://esd.ny.gov/business-pandemic-recovery-initiative to receive additional information or call 877-721-0097 for assistance.

Signed:

Printed name:

Date signed:

NOTICE: You are signing and submitting this form under penalty of law. That means it is against the law to make a statement on this form that you know is false.

For Residential Tenancies

NOTICE TO TENANT: If you have lost income or had increased costs during the COVID-19 pandemic, or moving would pose a significant health risk for you or a member of your household due to an increased risk for severe illness or death from COVID-19 due to an underlying medical condition, and you sign and deliver this hardship declaration form to your landlord, you may be protected from eviction until at least January 15, 2022 for nonpayment of rent or for holding over after the expiration of your lease. If your landlord files an eviction against you and you provide this form to the landlord or the court, the eviction proceedings will be postponed until January 15, 2022 unless your landlord moves to challenge your declaration of hardship. If the court finds your hardship claim valid, the eviction proceeding will be postponed until after January 15, 2022. While the eviction proceeding is postponed, you may remain in possession of your unit. You may still be evicted for violating your lease by intentionally causing significant damage to the property or persistently and unreasonably engaging in behavior that substantially infringes on the use and enjoyment of other tenants or occupants or causes a substantial safety hazard to others.

If your landlord has provided you with this form, your landlord must also provide you with a mailing address and e-mail address to which you can return this form. If your landlord has already started an eviction proceeding against you, you can return this form to either your landlord, the court, or both at any time. You should keep a copy or picture of the signed form for your records. You will still owe any unpaid rent to your landlord. You should also keep careful track of what you have paid and any amount you still owe.

For more information about legal resources that may be available to you, go to www.nycourts.gov/evictions/nyc/ or call 718-557-1379 if you live in New York City or go to www.nycourts.gov/evictions/outside-nyc/ or call a local bar association or legal services provider if you live outside of New York City. Financial assistance may be available to you, even if you have not qualified for assistance in the past. You should contact your local housing assistance office or the Office of Temporary and Disability Assistance (OTDA) for application information.

TENANT’S DECLARATION OF HARDSHIP DURING THE COVID-19 PANDEMIC

I am a tenant, lawful occupant, or other person responsible for paying rent, use and occupancy, or any other financial obligation under a lease or tenancy agreement at (address of dwelling unit).

YOU MUST INDICATE BELOW YOUR QUALIFICATION FOR EVICTION PROTECTION BY SELECTING OPTION “A” OR “B”, OR BOTH.:

£ I am experiencing financial hardship, and I am unable to pay my rent or other financial obligations under the lease in full or obtain alternative suitable permanent housing because of one or more of the following:
Significant loss of household income during the COVID-19 pandemic.
Increase in necessary out-of-pocket expenses related to performing essential work or related to health impacts during the COVID-19 pandemic.
Childcare responsibilities or responsibilities to care for an elderly, disabled, or sick family member during the COVID-19 pandemic have negatively affected my ability or the ability of someone in my household to obtain meaningful employment or earn income or increased my necessary out-of-pocket expenses.
Moving expenses and difficulty I have securing alternative housing make it a hardship for me to relocate to another residence during the COVID-19 pandemic.
Other circumstances related to the COVID-19 pandemic have negatively affected my ability to obtain meaningful employment or earn income or have significantly reduced my household income or significantly increased my expenses. To the extent that I have lost household income or had increased expenses, any public assistance, including unemployment insurance, pandemic unemployment assistance, disability insurance, or paid family leave, that I have received since the start of the COVID-19 pandemic does not fully make up for my loss of household income or increased expenses.
£ Vacating the premises and moving into new permanent housing would pose a significant health risk because I or one or more members of my household have an increased risk for severe illness or death from COVID-19 due to being over the age of sixty-five, having a disability or having an underlying medical condition, which may include but is not limited to being immunocompromised.

I understand that I must comply with all other lawful terms under my tenancy, lease agreement or similar contract. I further understand that lawful fees, penalties or interest for not having paid rent in full or met other financial obligations as required by my tenancy, lease agreement or similar contract may still be charged or collected and may result in a monetary judgment against me. I further understand that my landlord may request a hearing to challenge the certification of hardship made herein, and that I will have the opportunity to participate in any proceedings regarding my tenancy. I further understand that my landlord may be able to seek eviction after January 15, 2022, and that the law may provide certain protections at that time that are separate from those available through this declaration.

Signed:

Printed name:

Date signed:

NOTICE: You are signing and submitting this form under penalty of law. That means it is against the law to make a statement on this form that you know is false.

In order to receive certain protections, the tenant must return the Hardship Declaration to the landlord and/or the court.

Among the procedures that landlords must follow is the requirement that they send an affidavit along with any eviction filing. This affidavit must attest to the fact that the landlord (or its attorney):

has not received a Hardship Declaration returned from the tenant; or
has received a Hardship Declaration returned from the tenant, but the tenant has been intentionally causing significant property damage or otherwise engaging in behavior that infringes on the use and enjoyment of other tenants; or
has received a Hardship Declaration returned from the tenant, but the landlord believes, in good faith, that no hardship exists.

If the affidavit attests that the landlord received a Hardship Declaration returned from the tenant, but believes, in good faith, that no hardship exists, then the landlord must attach the following notice as a cover page to the notice of petition (NOTE: as before, the language differs between commercial and residential tenancies):

For Commercial Tenancies

NOTICE TO TENANT: THIS IS A PETITION TO COMMENCE AN EVICTION PROCEEDING AGAINST YOU, BUT THE PROCEEDING WILL NOT CONTINUE UNTIL AT LEAST JANUARY 15, 2022, UNLESS YOUR LANDLORD MOVES TO CHALLENGE YOUR CLAIM OF AN EXEMPTION FROM EVICTION IN YOUR HARDSHIP DECLARATION FORM.

IF YOUR LANDLORD MOVES TO CHALLENGE YOUR HARDSHIP CLAIM, YOU ARE ENTITLED TO A HEARING. IF THE COURT RULES YOUR HARDSHIP CLAIM INVALID AFTER THE HEARING, THE LAWSUIT MAY PROCEED TOWARD POSSIBLE EVICTION, BUT UNLESS AND UNTIL THE COURT ISSUES AN EVICTION WARRANT AGAINST YOU, YOU ARE ENTITLED TO REMAIN IN POSSESSION OF YOUR UNIT.

For Residential Tenancies

If the tenant provides a Hardship Declaration to the court or the landlord, then the case will be stayed until at least January 15, 2022. Likewise, any execution of a warrant or judgment would also be stayed until at least January 15, 2022. This delay similarly applies to default judgment against tenants. The exception to this is if the court finds the tenant’s hardship claim invalid. A landlord may file a motion with the court, attesting a good faith belief that the tenant has not experienced a hardship, must send notice of same to the tenant, and the court should thereafter grant a hearing to determine whether to find the tenant’s hardship claim valid.

After such hearing, if the court finds the hardship claim to be valid, the court will grant a stay or continuance of the case. However, the court shall also direct, if the tenant appears to be eligible and has not yet applied, that the parties apply to the COVID-19 emergency rental assistance program of 2021 (“ERAP”), or a locally administered program to administer federal emergency rental assistance funding. If, after a hearing, the court finds the tenant’s hardship claim invalid, the proceedings shall continue their usual course.

As the months continue, there may be additional changes to this law. We will be monitoring this eviction moratorium as any modifications are made. Initially, we are seeing courts that have not scheduled status conferences on eviction cases recently simply adjourn all such matters for after January 15, 2022. In this case, the landlord would have to file a motion with the court if they believe the tenant’s hardship claim is invalid and want a determination made prior to January.

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.

To schedule a consultation with an attorney, contact Griffin Alexander, P.C. at 973-366-1188 or through our website here!

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UPDATES TO THE NEW YORK EVICTION MORATORIUM

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