submitted by Megan Poynter, Law Student

updated January 26, 2021

New York State Specific Policy

New York State Senate, Bill Number S.9114/A.11181

https://www.governor.ny.gov/news/governor-cuomo-signs-covid-19-emergency-eviction-and-foreclosure-prevention-act-2020

On December 28, 2020 Governor Cuomo signed the Covid-19 Emergency Eviction and Foreclosure Prevention Act of 2020. This act prevents residential evictions, foreclosure proceedings, credit discrimination, and negative credit reporting related to the Covid-19 pandemic.

  • This Administrative Order provides that if a tenant has lost income or had increased costs due to the Covid-19 pandemic, or moving would pose a significant health risk for you or a member of your household, you must sign and deliver the Hardship Declaration Form (See below) to your landlord, and if you meet these criteria you cannot be evicted until May 1, 2021.
    • IMPORTANT TO NOTE: You may still be evicted for violating your lease by persistently and unreasonably engaging in behavior that substantially infringes on the use and enjoyment of the other tenants or occupants, or cause a substantial safety hazard to others.
      • A hazard to others can be considered refusal to adhere to landlord’s Covid-19 protocols.
    • You WILL still owe any unpaid rent to your landlord, you are responsible for keeping track of what you have paid, what you owe, and it is recommended to receive written verification from your landlord for receipt of payments. Retain for your records as well a copy of the Tenant’s Declaration of Hardship During the Covid-19 Pandemic signed by you.
  • Pending eviction proceedings. Any eviction proceeding pending on or before December 28, 2020, including eviction proceedings filed on or before  March 7, 2020, or commenced within thirty days of the effective date of this act shall be stayed for at least  sixty days, or to such a later date that the chief administrative judge shall determine is necessary to ensure that courts are prepared to conduct proceedings  incompliance with  this act and to give tenants an opportunity to submit the hardship declaration pursuant to this act.
    • The court in each case shall promptly issue an order directing such stay and promptly mail the respondent a copy of the hardship declaration in English, and, to the extent practicable, the tenant’s primary language, if other than English.
  • Pre-Eviction Notices:
    • Your landlord when providing you a pre-eviction notice, should include a Hardship Declaration, in 14-point type, with every written demand for rent along with any other written notice required by your lease or tenancy agreement, law, and or rule to be provided prior to a commencement of an eviction proceeding.
    • The notice shall include:
      • a mailing address, telephone number and active email address the tenant can use to contact the landlord and return the hardship declaration; and
      • a list of all not-for-profit legal service providers actively handling housing matters in the county where the subject premises are located. Such lists shall be prepared and regularly updated, to the extent practicable, for such purpose and published on the website of the office of court administration.
    • Initiating Eviction Proceedings Prohibition: If there is no pending eviction proceeding and the tenant has provided a hardship declaration, the landlord shall not initiate an eviction proceeding until at least May 1, 2021.
      • In order to begin an Eviction Proceeding, your landlord must:
        • No court will be accepting the filing on any petition or commencement of an eviction proceeding UNLESS:
          • The petitioner, or an agent of the petitioner (your landlord) filed an affidavit of service, demonstrating that the landlord delivered a copy of the hardship declaration in your primary language, with any rent demand and any other written notice required by the lease or tenancy agreement.
          • The affidavit must:
            • Attest that at the time of filing, the petitioner nor any agent of the petitioner has received a hardship declaration from the respondent or any other tenant or occupant of the dwelling unit that is subject to the commencement of the proceeding, or
            • Attest that the respondent (you the tenant_ or another tenant or occupant that is subject to the proceeding has returned a hardship declaration, but the tenant is persistently and unreasonably violating the lease or participating in behavior that is dangerous of substantially hazardous.
          • If an eviction warrant has been issued, prior to December 28, 2020, but has not been executed, that order is stayed until the court has held a status conference with the parties. If the tenant provided a hardship declaration to the petitioner, the execution of the warrant is stayed until May 1, 2021.
            • This does not apply if the tenant does not submit the Hardship Declaration and the tenant was properly served this declaration; or if the tenant has been found to be persistently and unreasonably engaging in behavior that infringes on the use of the dwelling.
            • If the eviction proceeding is pending, and the allegation of that proceeding does not list persistently and unreasonably engaged in behavior that would violate the lease.
              • If the court has awarded a judgment against a tenant prior to December 28. 2020, on the basis of objectionable or nuisance behavior, the court shall hold a hearing to determine whether the tenant will persist in engaging in the behavior
                • A mere allegation is not enough, there must be evidence to establish nuisance behavior. Failure to do so will stay the eviction proceedings until May 1, 2021.

 

Below is the Tenant Declaration:

http://www.nycourts.gov/courts/nyc/SSI/images/corona/HardshipDeclaration.pdf

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 BYSELECTING 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 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 all 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 be able to seek eviction after May 1, 2021, 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.”

Subpart A of this Bill protects Landlords with less than 10 dwelling units including their primary residence, and allows the landlord to file a Hardship Declaration of their own to submit to the mortgagor.

Memorandum of Law from the Chief Administrative Judge of the New York Courts explaining how some evictions may proceed

https://www.governor.ny.gov/news/no-20270-continuing-temporary-suspension-and-modification-laws-relating-disaster-emergency

On October 9, 2020, the Chief Administrative Judge of the NY Court issued a statement and document amending the procedures that courts must follow to hear eviction proceedings during this pandemic.

  • The Administrative Order 231/20 allows, effective October 12, 2020, for all residential eviction matters* to resume statewide, but there are important restrictions
    • *Eviction Matters includes but is not limited to:
      • Non-payment of rent
      • Holdover proceedings for eviction from prior to the Covid-19 Pandemic
    • If you are in a holdover proceeding, meaning you were in a court proceeding or waiting for a hearing when the pandemic hit, under Administrative Order 160A/20 you must have taken part in a status or settlement conference.
  • The Eviction Moratorium in NYS (See Below) prevents tenants who meet the criteria of the Tenant Safe Harbor Act and Executive Order 202.66 from being evicted until May 1, 2021.
    • The Tenant Safe Harbor Act only applies to a specific group of “covered people”:
      • You must be able to prove financial hardship due to Covid-19.
    • The Administrative Order 321/20 strongly encourages the use of mediation and alternative measures for solving landlord-tenant disputes.
      • Buffalo’s local office for this type of mediation is: The Center for Resolution and Justice (716)-362-2323
    • The Court’s priority currently is to ensure the safety and welfare of all personnel coming into the court: judges, non-judicial personnel, and court visitors. The process for scheduling and hearing cases will be longer than usual to account for these safety requirements.

IMPORTANT: The Tenant Safe Harbor Act is a defense that you have in an eviction proceeding, it does not prevent your landlord from bringing an eviction proceeding against you. You must prove that your financial hardship which prevented you from paying your rent was linked to Covid-19 and substantial. If you cannot show financial hardship or your eviction proceeding is for reasons other than non-payment, for example gross and repeated violations of your lease, then your landlord CAN bring eviction proceedings against you effective October 12, 2020.

The Tenant Safe Harbor Act

On June 30, 2020 Gov. Cuomo signed the Tenant Safe Harbor Act. This legislation prohibits 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. It prevents Landlords from using eviction as a solution for nonpayment during the limited COVID-19 covered period if the tenant proves a COVID-19-related financial burden to the court. However, Landlords can still bring petitions seeking unpaid rent against tenants when the eviction moratorium and the pandemic end.

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.

New York State Attorney General’s Office:

Tenants’ Rights Frequently Asked Questions and Resources

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.
            • If you are at risk of an eviction proceeding or are concerned about an eviction proceeding after the moratorium, you should retain these documents in preparation for that possibility:
              • Documentation of your income and assets:
                • Paystubs
                • Unemployment benefit statements,
                • Bank account statements, etc.
              • These are essential to establishing your financial hardship.

Federal Policy

President Biden’s Extension of Eviction Moratorium

On January 20, 2021 the Biden Administration authorized the extension of the foreclosure and eviction moratorium from U.S. Department of Housing and Urban Development as well as other Federal Agencies. The CDC has acted on this authorization and on January 20 announced the extension of the current CDC Eviction Moratorium until March 31, 2021.

CDC Eviction Moratorium

This protection is meant to be a floor, state policy can and should be stronger for tenants. See above for NYS policy.

Qualifications for the CDC’s Eviction Moratorium:

    • Tenant can prove they used best efforts to obtain all available government aid for rent or housing.
      • Government aid means any governmental rental or housing payment helps available to the individual or any household member.
    • The tenant’s income level must be less than $99,000; the tenant did not pay income tax in 2019; or the tenant received a stimulus check.
    • The tenant is unable to pay rent due to a loss of income or extraordinary out-of-pocket medical expenses.
    • The tenant would be homeless or will need to live with another person if evicted.
    • Tenant will still make partial payments: using their best efforts to make prompt payments that are as close to the full payment as the circumstances will allow, considering other non-discretionary expenses.
  • Exclusions:
    • This Order does not apply in any State with a moratorium on residential evictions that supplies the same or greater level of public-health protection than the requirements listed in this Order.
    • This Order does not relieve any tenant of the obligation to pay rent, make a housing payment, or follow any other obligation that the tenant may have under a rental, lease, or similar contract.
      • Nothing in this Order prevents charging or collecting fees, penalties, or interest because of the failure to pay rent or other housing payment on a prompt basis, under the terms of the applicable contract.
    • To use 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 aid programs for yourself or any qualified individual in your home.
      • Supply an executed copy of the Declaration Form (or similar declaration under penalty of lying under oath) 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 give a declaration.
          • Unless this CDC order is extended, changed, or ended, it prevents qualified applicants’ from being evicted or removed from where they are living through March 31, 2021.
          • Tenants still must pay rent and follow all the other terms of their lease and rules of the place where they live.
            • Tenants may still be evicted for reasons other than not paying rent or making a housing payment
          • 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 March 31, 2021 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 says 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.

Coronavirus Rental Assistance and Eviction Moratorium:

https://www.usa.gov/disaster-help-food-housing-bills#:~:text=If%20you’ve%20experienced%20job,can’t%20pay%20your%20rent.

If you have experienced a job loss because of the Covid-19 pandemic, you may qualify for rental assistance through your state HUD program.  The Department of Housing and Urban Development (HUD) is helping renters during the coronavirus pandemic by making rental assistance available through state HUD offices. To find out if you qualify:

Contact your state HUD office to find out about rental assistance programs, or call 877-542-9723 to speak with a housing counselor at HUD’s Disaster Response Network

Possible Issues and Questions Tenants May Have

Does the Eviction Moratorium mean that I cannot be evicted no matter what?

As of December 28, 2020 New York State Courts are allowed to begin hearing eviction proceedings for specific issues: namely repeated and egregious behavior in violation of the lease. The Tenant Safe Harbor Act prevents people from being evicted if they prove they did not pay rent due to financial hardship caused by Covid-19. Proof of financial hardship can be proven by filing a Hardship Declaration, your landlord should provide you a copy.

Holdover proceedings, and eviction proceedings not regarding inability to pay rent are being heard. You may be served with an eviction proceeding if you have been not paying your rent without financial hardship or have been violating your lease.

My Landlord issued an eviction notice, what now?

No residents may be evicted in New York State due to demonstratable financial hardship. Some eviction proceedings have been stayed at this time. Under Bill SO9114 the only eviction proceedings being heard are those that are based on repeated violations of the lease other than non-payment if you can demonstrate financial hardship.

According the NYS Attorney General’s website, if a warrant for eviction is issued to you, you should contact the local court at once to decide whether you need to file paperwork to stop the eviction. The paperwork is called an Order to Show Cause (OSC).

If 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 General’s 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 trying 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 past due payment charges for rent between March 20, 2020 and May 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 overdue payment of rent occurring during the time from March 20, 2020 to May 1, 2021.

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 say there will be late fees imposed, these fees cannot exceed $50, or 5% of your rent, whichever is lower.

You cannot be evicted for not paying 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 (about 3 months) to begin repaying the security deposit from the date the Landlord used the security deposit. You may pay an added 1/12 of the security deposit each month until the amount is paid back. You should set up 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 waiving your obligation to pay the rent in full once the eviction moratorium ends.

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 (about 3 months) 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 (about 2 months) advanced written notice if you have lived in your apartment for more than a year but less than 2 years.
  • 30 days (about 4 and a half weeks) 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 advanced 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 showing 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 decides 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 prove that you cannot find a similar apartment in that same neighborhood.

Judges will consider in deciding whether there are grounds:

  • Your health conditions;
  • Whether you have children enrolled in school;
  • The hardship on the Landlord if you stay; 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 prompt 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 decide 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. There is no need to find 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.

Further Resources

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