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Thursday, December 31, 2020

New Eviction Law Extends Residential Eviction Moratorium to May 1, 2021

On December 28, 2020, Governor Cuomo signed the COVID-19 Emergency Eviction and Foreclosure Prevention Act of 2020 (“Act”). Essentially, the Act provides tenants with an opportunity to submit a Hardship Declaration, which stays most evictions until May 1, 2021. The second part of the Act which provides for mortgage foreclosure relief is discussed in a separate blog HERE.

The Details:

  • Essentially, once a tenant provides a Hardship Declaration, the eviction is stayed until May 1, 2020.
  • The Act applies to residential nonpayment AND holdover eviction proceedings.
  • The Act does not apply to tenants of seasonal rentals with a primary residence to return to and tenants who infringe on other tenants' use and enjoyment of the premises or pose a substantial safety hazard to others, but only upon the landlord proving same.
  • To qualify, a tenant must provide the Hardship Declaration and must declare that they are suffering a financial hardship, such as:
      • Significant loss of income
      • Increase in necessary out-of-pocket expenses due to COVID-19
      • Childcare responsibilities or care for the elderly, disabled, or sick family member
      • Moving expenses and difficult relocating
      • Other circumstances negatively affecting the ability to find meaningful employment
      • Vacating the premises and moving into new permanent housing poses a significant health risk
  • Sample hardship declarations will be available on the Office of Court Administration website.
  • New Eviction Proceedings - upon a Tenant's submission to the landlord of the Hardship Declaration, the landlord is prohibited from commencing any eviction proceeding until May 1, 2021. The landlord can commence an eviction proceeding if the landlord files the following:

    • Affidavit of service of the Hardship Declaration in English and tenant’s primary language.
    • Affidavit of Service of predicate notices pursuant to RPAPL and the lease; and 
    • Affidavit of the Petitioner/Petitioner’s agent attesting to the following:
      • Petitioner or his agent did not receive a Hardship Declaration from the Tenant 
      • The tenant returned the Hardship Declaration but the tenant is “persistently and unreasonably engaging in behavior that substantially infringes on the use & enjoyment of other tenants or occupants or causes a substantial safety hazard to others, with a specific description of the behavior alleged.” 
      • If the Court determines that the landlord failed to provide the Hardship Declaration, the court shall stay the eviction for at least 10 days for the tenant to complete the declaration. 
  • Pending Eviction Proceedings - proceedings commenced before 12/28/20 and commenced within 30 days of 12/28/20 are stayed for at least 60 days, or to such later date set by the Court. If the tenant submits the Hardship Declaration, the eviction proceedings are stayed until May 1, 2021. 
  • Post Warrant of Eviction - in any eviction proceeding in which an eviction warrant has already been issued, execution is stayed until the court holds a status conference with the parties. If the tenant provides a Hardship Declaration, the execution of the warrant is stayed until May 1, 2021.

What is most important to both tenants and landlords is that while the law stops most evictions in NYS until May 1, 2021, it does not affect the tenants' obligation to pay rent. No payments are canceled. 

Unfortunately, despite the law's intentions, it is still lacking. Inevitably, tenants will continue to incur insurmountable debt and small landlords will eventually find themselves in the middle of the looming foreclosure tsunami. 

What do you think?

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