On September 2, 2021, New York Governor Kathy Hochul signed the extension of the protections provided by the COVID-19 Emergency Eviction and Foreclosure Prevention Act of 2020 (CEEFPA) and the COVID-19 Emergency Protect Our Small Businesses (SBA).
The Acts, which took effect on December 28, 2020, are widely known as “eviction moratorium,” “Federal eviction moratorium,” and “CDC eviction moratorium” (even though they’re not, in fact, related to the Federal government or the Center for Disease Control). They allow residential tenants, mortgagors, and small businesses facing eviction or foreclosure to stop the legal procedures by claiming a financial hardship related to the COVID-19 pandemic. CEEFPA stays all pending residential eviction proceedings to those tenants who provide their landlord a “Hardship Declaration” claiming that they have been negatively impacted as a result of the COVID-19 pandemic.
Furthermore, if a tenant with no pending eviction proceeding provides a hardship declaration to the landlord, an eviction proceeding against the tenant cannot be commenced until at least January 15, 2022.
When Does the Eviction Moratorium End?
The Act initially was to expire on May 1, 2021, and was then extended to August 31, 2021. The new law extends the stay period to January 15, 2022.
The legislative intent of the Act was to mitigate the ravaging effects of the COVID-19 pandemic in the state of New York. The pandemic resulted in the death of over 55,000 New Yorkers, while thousands of residents faced financial hardship due to the economic impact of the measures taken to combat it. According to a survey by the Census Bureau, nearly 10M Americans fell behind on their rent during the pandemic.
Homelessness is recognized as one of the foremost problems of New York, and according to the Coalition for the Homeless, the problem has been exacerbated during the last decade to reach unprecedented levels at the beginning of the COVID 19 pandemic. Eviction is considered the number one factor that leads to homelessness in New York State.
The recent extension of the Act acknowledges that the economic recovery rates are not such yet as to justify the interruption of the temporary eviction moratorium. With the cold winter months approaching, the extension of the Act aims at preventing a further increase of the homeless population. Furthermore, studies show that, so far, the moratorium has not only likely prevented an escalating housing crisis, but also contributed to slowing the spread of the virus.
Who Is Covered by the Extended Moratorium?
The extended moratorium applies to:
- Residential tenants (Part A of the Act) who wish to keep their homes and stay out of crowded shelters.
- Commercial tenants of properties that are independently owned and operated, who are not dominant in their field, and employ one hundred or fewer employees (Part B). With the previous Act, the employment threshold was fifty employees, therefore the new Act covers more commercial tenants than the previous one.
What Circumstances Qualify as Hardship Declaration?
There are several circumstances that can qualify as financial hardship related to the COVID 19 pandemic:
- An increase in necessary out-of-pocket expenses related to performing essential work or related to health impacts during the COVID-19 pandemic.
- Being negatively affected in obtaining meaningful employment or earning income.
- An increase in necessary out-of-pocket expenses due to childcare responsibilities or responsibilities related to caring for an elderly, disabled, or sick family member during the COVID-19 pandemic.
- Moving expenses and difficulty securing alternative housing during the COVID-19 pandemic.
- Vacating the premises and moving into new permanent housing in a way that would pose a significant health risk.
- Loss of household income or an increase of household expenses due to the shutdowns, not being covered (or sufficiently covered) by public assistance.
- 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.
The Downside: a Challenging Situation for Property Owners
The eviction moratorium has, as can be expected, downsides for the landlords, especially small, individual landlords who depend on rental income for their own survival.
Until now, the eviction moratorium provided absolute protection to tenants against a simple signed Hardship Declaration, requiring no proof or corroboration. At the height of the COVID crisis, tenants could claim financial hardship regardless of whether or not the pandemic and shutdowns had directly impacted their financial situation.
The law did not offer the landlords the ability to contest these statements or use legal recourse against tenants with a false hardship declaration. At the same time, landlords were neither relieved from their obligations—such as property taxes, maintenance expenses, or insurance costs—nor subsidized for them.
The Chrysafis Case
After the first extension of the CEEFPA in May, a group of New York property owners brought an action in the federal District Court for the Eastern District of New York, challenging the law as unconstitutional [Chrysafis v. Marks, Case No. 21-cv-02516 (GRB)(AYS)].
The landlords sought a preliminary injunction to freeze the application of the stay period through August 31, 2021. The preliminary injunction was denied in the District Court, and the Second Circuit Court of Appeals affirmed. On August 12, 2021, however, the United States Supreme Court partly reversed the denial of the injunction, ruling that, under CEEFPA, if “a tenant self-certifies financial hardship, Part A of CEEFPA generally precludes a landlord from contesting that certification and denies the landlord a hearing. This scheme violates the Court’s longstanding teaching that ordinarily ‘no man can be a judge in his own case’ consistent with the Due Process Clause.”
Although the new law extends the moratorium for a few more months, it also takes into consideration the downsides of the Act for property owners and the Chrysafis ruling by providing landlords with the opportunity to challenge the hardship claim of the adverse party.
Rebutting the Hardship Declaration
The process of making a motion to challenge the hardship claim of the adverse party is not an easy one, as the property owner bears the burden of proving that their tenant’s financial hardship is false.
Where such a challenge is made, the law requires the court to “grant a hearing to determine whether to find the respondent’s hardship claim invalid.” The challenge must be based on a good-faith belief that the tenant is not experiencing hardship, and the property owner must rebut the presumption of financial hardship that is created by the tenant’s hardship declaration.
The tenant is not obliged by law to prove a specific hardship resulting by COVID 19. Instead, they must show that they are experiencing any of the following:
- Loss of household income,
- an increase in expenses,
- childcare responsibilities,
- responsibilities related to caring for elderly, disabled, or sick family members,
- moving expenses,
- difficulty securing alternative housing,
- other circumstances negatively affecting the ability to obtain meaningful employment,
- or are at increased risk for severe illness from COVID-19.
Contesting the hardship claim of a tenant is complicated, as the property owner needs to demonstrate in good faith that none of those circumstances exist.
The Nuisance Standard
Moreover, the Act includes a “nuisance standard”, allowing a landlord to proceed with a lawful eviction despite a finding of hardship if they can prove that the tenant “intentionally caused significant damage to the property or persistently and unreasonably engaged in behavior that substantially infringed on the use and enjoyment of other tenants or occupants or caused a substantial safety hazard to others, with a specific description of the behavior alleged.”
This provision already existed in the initial CEEFPA.
What Happens When a Tenant Submits a Hardship Declaration?
Although no eviction process can commence during the stay period defined by the new Act, landlords who wish to protect their rights may still undertake legal action.
Also, the Act does not affect a landlord’s ability to sue tenants in plenary actions for rent in Civil and Supreme Court. Property owners often consider such actions to obtain money judgments for past due rent. Predicate notices in non-payment and holdover proceedings may still be served so long as they are accompanied by the requisite hardship notices, soon to be published by the Court.
If you are a tenant who wishes to submit a hardship declaration, contact an attorney like Roemerman Law to explore your options and minimize the chances of your landlord successfully rebutting your claim.
You should do the same if you are a landlord and believe that your tenant has submitted a false declaration, to avoid issues with a pending or future eviction proceeding, including its dismissal.