submitted by Megan Poynter, Law Student
updated October 2nd, 2020
Federal Policy: CDC Eviction Moratorium
On September 1, 2020 the Centers for Disease Control in partnership with the Department of Health and Human Services issued an Agency Order eviction moratorium with broad reaching qualifications extending until December 31, 2020. This protection is meant to be a floor – state policy can and should be stronger for tenants.
Qualifications for this Eviction Moratorium:
- Tenant can demonstrate they used best efforts to obtain all available government assistance for rent or housing;
- Government assistance in this regard means any governmental rental or housing payment benefits available to the individual or any household member.
- Income level must be less than $99,000, individual did not pay income tax in 2019, or they received a stimulus check.
- Tenant is unable to pay rent due to a loss of income or extraordinary out-of-pocket medical expenses
- Tenant will become homeless or will need to live with another person if evicted
- Tenant will still make partial payments: using their best efforts to make timely payments that are as close to the full payment as the circumstances will allow, taking into account other non-discretionary expenses
- This Order does not apply in any State, local, territorial, or tribal area with a moratorium on residential evictions that provides the same or greater level of public-health protection than the requirements listed in this Order.
- This Order does not relieve any individual of any obligation to pay rent, make a housing payment, or comply with any other obligation that the individual may have under a tenancy, lease, or similar contract.
- Nothing in this Order precludes the charging or collecting of fees, penalties, or interest as a result of the failure to pay rent or other housing payment on a timely basis, under the terms of any applicable contract.
To invoke this protection, tenants, lessees, or residents of the residential properties covered by this order must:
- Have exhausted all other remedies including applying for available government assistance programs for yourself or any qualified individual in your home.
- Provide an executed copy of the Declaration Form (or similar declaration under penalty of perjury) to their landlord or whomever has the legal right to have them evicted or removed.
- Each adult listed on the lease, rental agreement, or housing contract should complete and submit a declaration.
Resources for Tenants, Lessees, or Residents
- OMB Control No. 0920-1303 Declaration Form
- This form can be filled out tenants declaring their understanding of the eviction moratorium, and that they are a qualifying individual for these protections.
- The Declaration asserts that the tenant understands this is a temporary halt on evictions, and once December 31, 2020 has passed, the housing provider is within their rights at this time to require payment in FULL for ALL payments not made prior to or during the temporary halt.
- It also states that failure to pay these repayments could make the tenant subject to eviction after the moratorium is lifted.
- The Form is not including foreclosures on home mortgages in these protections.
- Tenants relying on the CDC’s forms should be made aware of the fact that their state protections may be more substantial.
Federal Policy: Mortgagee Letter 2020-27
On August 27, 2020 HUD issued a 60-day moratorium on foreclosures and evictions, protecting homeowners with FHA-insured mortgages. The FHA has extended the moratorium twice and it is now extended to December 31, 2020.
- Foreclosure and Eviction Moratoriums originally issued in ML 2020-4, extended in ML 2020-13, and further extended in ML 2020-19 for all Federal Housing Administration (FHA) insured Single Family Mortgages covered under the CARES Act. ML 2020-19 extends these protections until December 31, 2020.
- The CARES Act expired July 25, 2020: Section 4024 of the CARES Act imposed a temporary eviction moratorium applying to certain dwellings that were assisted by the Community Development Block Grant (CDBG) loans including Section 108 guaranteed loans, Neighborhood Stabilization Program (NSP) Loans, and CDBG-Disaster Recovery loans.
- This applies to both the initiation of foreclosures and evictions and to those in process.
- Outside of the mortgages covered under the CARES Act, the eviction moratorium will be applicable to evictions of persons from properties securing FHA-insured Single Family Mortgages
- Deadlines for the first legal action and reasonable diligence timelines are extended by 90 days from the date of expiration of this moratorium: March 31, 2020*
- *As of October 2, 2020, the moratorium expiration date is December 31, 2020
On September 28, 2020 NY Gov. Cuomo extended the moratorium on evictions to January 1, 2021.
- The moratorium extends to all COVID-related commercial evictions and foreclosures until January 1, 2021.
- Protections in place for commercial tenants and mortgagors in recognition of the financial toll the pandemic has taken on business owners. This includes retail establishments and restaurants.
- Gives tenants additional time to get back on their feet, and catch up on their rent OR renegotiate their leasing terms to avoid eviction proceedings and foreclosures.
The Tenant Safe Harbor Act
- June 30, 2020 Gov. Cuomo
- Legislation prohibiting the courts from hearing eviction proceedings for residential tenants who experienced financial hardship for non-payment of rent that accrues or becomes due during the COVID-19 period. The Safe Harbor Act does not prevent petitions from being brought altogether, instead it removes the remedy of eviction for non-payment during the limited COVID-19 covered period, if the tenant demonstrates a COVID-19-related financial burden to the court. However, Landlords can still bring petitions seeking unpaid rent against tenants when the
- This protection extends past the end of the moratorium, preventing Landlords from evicting for unpaid rent during the pandemic, even after the moratorium is over.
- Tenants suffering from financial hardship due to COVID-19 are protected from evictions through January 1, 2021. These protections apply to all housing cases– holdovers and non-payment proceedings.
- To receive these protections, the tenant must raise in court that they suffered financial hardship during the COVID-19 pandemic.
- Courts look at these factors to determine your financial hardship:
- Your income prior to the COVID-19 covered period;
- Your income during the COVID-19 covered period;
- Your liquid assets; as well as
- Your eligibility for and the receipt of:
- Cash assistance;
- Supplemental nutrition assistance program;
- Supplemental security income;
- The New York State Disability Program;
- The home energy assistance program; or
- Unemployment insurance or benefits under state and federal law.
- Courts look at these factors to determine your financial hardship:
- If you are at risk of an eviction proceeding or are concerned about a possible eviction proceeding after the moratorium, you should retain these documents in preparation for that possibility:
- Documentation of your income and assets:
- Unemployment benefit statements,
- Bank account statements, etc. These are essential to establishing your financial hardship.
Possible Issues and Questions Tenants May Have
Does the Eviction Moratorium mean that I cannot be evicted no matter what?
The present law states that you cannot be evicted for not being able to pay your monthly rent due to hardship you’re facing from COVID-19. There are no eviction proceeding is being heard right now, and there are laws in New York (The Tenant Safe Harbor Act) that will prevent you from being evicted or charged late fees because your inability to pay. However, there are not explicit protections for eviction proceedings as a result of dangerous or inappropriate behavior by a tenant, such as a severe violation of the lease. While the Landlord cannot bring the eviction proceeding to a court at this time, evictions due to reasons other than financial hardship do not have explicit legal protections.
My Landlord issued an eviction notice, what now?
No residents may be evicted in New York State due to financial hardship. All eviction proceedings have been stayed at this time. According the NYS Attorney General’s website, if a warrant for eviction is issued to you, you should contact the local court immediately to determine whether you need to file paperwork to stop the eviction. The paperwork is called an Order to Show Cause (OSC).
If you are living in a rent stabilized or rent controlled dwelling and feel you are being harassed by landlord, file a complaint with the Homes and Community Renewal’s Tenant Protection Unit, or Office of Rent Administration: https://hcr.ny.gov/harassment.
Non-rent stabilized tenants can report harassment to Attorney Generals office: https://ag.ny.gov/uploads/tenant-harassment-prevention-task-force-complaint-form.
After I did not pay my rent, my Landlord locked me out. What should I do?
An unlawful lockout is a Class A Misdemeanor, this includes threatening to lock you out, changing the locks without notice or provision of new keys, or to otherwise try to force you from your dwelling without a court order.
The NYS Attorney General’s Office instructs to call 911 if you are locked out or your Landlord tries to illegally evict you. Show the law enforcement officer your identification, lease, public utility bill, or another document that shows your name and address.
If you are concerned about your Landlord attempting to perform an illegal lockout, it is recommended you keep a copy of these documents in a safe location, accessible without access to your dwelling.
My Landlord has issued a fee or notice of late payment charges for rent between March 20, 2020 and January 1, 2021
Section 238-a Real Property Law, Subdivision 2: No Landlord, lessor, or grantor may demand or be entitled to any payment, fee, or charge for late payment of rent occurring during the time period from March 20, 2020 to January 1, 2020.
For any other late fees from outside of the protected timeline, your Landlord can only charge a late or other fee if it is allowed by your lease. Even if your lease does explicitly state there will be late fees imposed, these fees cannot exceed $50, or 5% of your rent, whichever is lower.
You cannot be evicted for failing to pay a late or other fee at this time.
My Landlord used my security deposit to cover rent, how long do I have to repay the security deposit?
Section 7-103, 7-107, and 7-108 of General Obligations Law: Tenants have 90 days to begin repaying the security deposit from the date the Landlord used the security deposit. You may pay an additional 1/12 of the security deposit each month until the amount is paid back. You should establish your repayment plan, in writing with your Landlord before they use your security deposit as rent.
The security deposit did not cover the month’s rent, am I on the hook for the rest when the moratorium is over?
Section 7-103, 7-107, and 7-108 of General Obligations Law: Yes, the consent to use the security deposit is not the same as a waiver of obligation to pay the rent in full.
My Landlord wants to increase rent to capitalize on the crisis or the lease is expiring, what do I do?
If you have a current lease, the Landlord cannot legally increase your rent until that lease expires.
If you are rent-stabilized or rent-controlled, there are limitations as to how much the Landlord can increase your rent. Presently they are entitled to increase rent 1.5% for one-year renewals, and 2.5% for a two-year renewal.
If you are a market-rate tenant, and your lease is expiring OR you are a month-to-month tenant, your Landlord must provide you with advance written notice* prior to any rent increases above 5%.
*How long you have been living in your dwelling effects how much notice you must receive:
- 90 days advanced written notice if you have lived in your apartment for 2 or more years, or if you have a 2-year lease
- 60 days advanced written notice if you have lived in your apartment for more than a year but less than 2 years.
- 30 days advanced written notice if you have lived in your apartment for less than one year or have a lease for less than one year.
Even if the proper advance notice is given, you still must accept the terms and the Landlord cannot charge you the higher rent until after you accept the terms. You can accept the terms in several ways:
- By signing the lease after the proper notice has been given to the changes
- By paying the increase in rent; or
- By taking another affirmative step evidencing you accepted the increase.
My lease is expiring before the COVID-19 Emergency is over, do I have to go?
Your Landlord cannot force you to leave without a court order even if your lease expires. This includes changing the locks or other forms of constructive eviction.
Should you be served with a notice to vacate at the end of your lease, you may have time and options.
The NYS Attorney General states that even if you are served, and the case is filed in court, you cannot be evicted until the court determines your Landlord has grounds to evict you.
If the court finds there are grounds, which non-payment due to financial hardship is not grounds at this time, you may request up to 1 year to find and move into a similar dwelling, if you can demonstrate that you cannot find a similar apartment in that same neighborhood.
Judges will consider in determining whether there are grounds:
- Your health conditions;
- Whether you have children enrolled in school;
- The hardship on the Landlord if you remain; and
- Any other life circumstances that could affect your ability to move.
Even if you are issued a decision in the Landlord’s favor, the Landlord cannot change your locks or evict you themselves. They must receive a final judgement from the judge as to the possession and a warrant. A sheriff, city marshal, or city constable should issue the notice and then carry out the eviction.
My Landlord has threatened to or has turned off essential services because I am behind on rent, what should I do?
According to the Warranty of Habitability, tenants are entitled to livable, safe, and sanitary home whether they are paying rent or not. A Landlord’s failure to make timely repairs, or to sever critical services such as hot water or electricity is a breach of that warranty.
If you are experiencing an unlawful services discontinuance, contact your local code enforcement office to file a complaint about the loss of essential services or unlivable or unsafe conditions.
- Division of Building Standards and Codes: Complaints https://www.dos.ny.gov/dcea/complaints.html. You can also contact the court at (833)-503-0447 to determine whether you need to and how to file a case against your Landlord to fix these conditions.
I tested positive for COVID-19; can my Landlord treat me differently?
It is considered unlawful for a Landlord to discriminate against you or evict you or someone who lives with you just because you have or had COVID-19. Your Landlord is not allowed to treat you unfairly or differently because you are from or look like you are from a country where there are large outbreaks of COVID-19.
Other residents are harassing me for my diagnosis or affiliation with a diagnosed COVID-19 patient, can my Landlord refuse to help?
According to the NYS Attorney General’s Office, Landlords cannot refuse to protect you from being harassed by other tenants. To report any acts of discrimination you may call the New York State Division of Human Rights at (888)-392-3644.
You can also file a complaint with the Civil Rights Bureau of the Attorney General’s Office.
Your Landlord is not allowed to post your identity in a notice for a COVID-19 exposure risk. Posting a notice that someone specific has an illness is considered discrimination. Generally, there is no need to identify the person with COVID-19 when posting safety notices to ensure the health of other residents.
I made a good-faith complaint to my Landlord or a government agency, and now they are refusing to renew my lease. Is that allowed?
No, your Landlord cannot refuse you a renewal, or raise your rent unreasonably due to the complaint. Retaliation is presumed on the part of the Landlord if you made the complaint to the Landlord or government agency within one year of the Landlord refusing to renew your lease or unreasonably increasing your rent. This is a defense for you should the Landlord bring you to court, and if you are successful the Landlord must issue you a new lease.
- Civil Rights Bureau of NY State Attorney General’s Office: (212) 416-8250, firstname.lastname@example.org
- New York State Division of Human Rights Complaint Form:https://dhr.ny.gov/sites/default/files/pdf/nysdhr-housing-discrimination-complaint-form-fillable.pdf
- The Housing and Urban Development Department Eviction Prevention and Stability Toolkit, which includes a tenant brochure with tips to avoid eviction; a flyer for encouraging engagement between landlords and tenants before the moratorium ends; and repayment agreement guidance
Give us a call at (716) 853-3087, or contact our Free Legal Helpline, at email@example.com.