LIEB BLOG

Legal Media Analysts

Showing posts with label eviction. Show all posts
Showing posts with label eviction. Show all posts

Friday, December 17, 2021

Self-Represented Tenants Entering into Stipulations of Settlement Get More Protection

Additional protections in Housing Court are being enforced in order to aid self-represented parties. When opposing parties come to an agreement during a proceeding, they sign a Stipulation of Settlement ("Stipulation"), which is a binding agreement, so it is the judge's responsibility to ensure that the parties understand the Stipulation. 


Bill A3320A relates to stipulations in summary proceedings to recover possession of real property. Moving forward, a stipulation will not be approved by the court unless the court first verifies the following:

  • All parties have been accurately and appropriately named;
  • The authority of the signatory if a named party is not present;
  • The unrepresented party understands he may try the case if he does not agree with the stipulation;
  • An opposing party's attorney did not inappropriately give advice to the unrepresented party;
  • Whether or not the unrepresented party agrees or contests any allegations in the petition or predicate notices;
  • The unrepresented party understands the claims and defenses available to him and what his options may be in light of the claims and defenses, and, that the claims and defenses are adequately addressed in the stipulation;
  • The unrepresented party agrees to the terms in the stipulation;
  • The unrepresented party understands the consequences of either party's non-compliance with the stipulation; and
  • An appropriate rent breakdown is included, if applicable. 

An allocution is the process in which the judge determines if the parties understand the terms of the Stipulation. The amended Bill offers judges a checklist, if you will, that will allow them to efficiently ensure unrepresented parties understand the agreement that they have entered into.

Landlord's attorneys should become well versed in the allocution so that they can ensure that the Court will approve their client's settlements and resolve disputes.  












Friday, December 10, 2021

Owners & Landlords Are No Longer Able to Recover Legal Fees Unless Given Authority by the Court

A new law on landlord's ability to collect legal fees was signed by Gov. Hochul on December 21, 2021 and is effective immediately. The law, S2014, means a lot to owners and landlords in New York. The Bill prohibits owners and landlords from charging lessees any legal fee, surcharge, or other charges for legal services in connection to operating or renting a residential unit, unless the owner/landlord has the legal authority to do so. A lessee is only responsible to pay legal fees if directed by a court order. However, you only get a court order if you go to court and do not resolve issues beforehand. As a result, legal fees for out-of-court negotiations, lease drafting, amendments, and the like are no longer recoverable.


Do you think that owners and landlords will be less likely to resolve disputes without going to court if they can't recover their legal fees? 


It’s no secret that legal work can be costly. So, it is typical for landlord-petitioners to try and recoup the money that they spend retaining an attorney and all of the expenses that come with legal work and legal actions. Aside from legal representation, additional legal fees can include court fees, notary public charges, and administrative charges, to name a few. This bill is aimed at the costs of lease preparation, pre-litigation negotiations, and all the work that landlords need in order to avoid a court case. 


Co-ops are technically landlords to their residents and as a result, all legal fees imposed by the Board for sales, document review, and the like may no longer be recoverable based on this law.  There is no carveout for Co-ops and that needs to be addressed. Perhaps, Governor Hochul should have told the legislature to get it right before she signed the Bill into law.


This is just another obstacle for owners and landlords, which increases the cost of business, and eventually, the rent paid by tenants.





Thursday, September 02, 2021

NYS Eviction Ban Has Been Extended to January 15, 2022 – What Should Landlords Do Now?

The NYS Legislature passed Senate Bill 50001 and 50002, extending the state’s eviction / foreclosure moratoria to January 15, 2022, and both bills were signed by Governor Kathy Hochul on September 2, 2021.

What’s in the Law?
Briefly, the laws:
  • Extend residential and commercial eviction and foreclosure moratoria to January 15, 2022;
  • Expand eviction protections for tenants under the COVID-19 Emergency Rental Assistance Program (CERAP);
  • Create a due process mechanism for a landlord to challenge a tenant’s Hardship Declaration;
  • Direct judges to require residential tenants to apply for CERAP if their hardship claim is determined to be valid;
  • Extend the period covered by the Tenant Safe Harbor Act to January 15, 2022; and
  • Increase funding for CERAP, Hardship Fund, and legal services for tenants facing evictions.

Moving Forward:
Landlords should demand hearings and challenge their tenants’ hardship claims, which is the trigger for the moratoria to apply. Unlike the prior version of the law, which was overturned by the U.S. Supreme Court in Chrysafis v. Marks, a tenant can no longer decide for himself / herself whether the law is applicable. Specifically, landlords may now file a motion with an attestation of the landlords’ good faith belief that the tenant has not experienced a hardship. Then, the court will schedule a hearing to determine whether the tenant’s hardship claim is valid. If it’s deemed invalid by the court, then the eviction proceeding can proceed. If it’s deemed valid by the court, then the eviction is stayed until January 15, 2022, but the court will order the tenant to apply for CERAP so that the landlord is paid rent.

What is CERAP?
Tenants may apply for CERAP voluntary, or under court order. Under CERAP, Landlords receive up to 12 months of rental arrears and up to 3 months of future rent.

Eligible tenants are:
  1. Tenants or occupants obligated to pay rent in their primary NYS residence;
  2. Individuals who have qualified for unemployment or experienced a reduction in household income, incurred significant costs, or experienced other financial hardship due – directly or indirectly – to the COVID-19 outbreak;
  3. Tenants who demonstrate a risk of experiencing homelessness or housing instability; AND
  4. Tenants who have a household income at or below 80% of the area median income, adjusted for household size.

If a tenant is approved for rental assistance under CERAP, the money goes directly to the landlord. However, landlords who accept CERAP payments, must:
  • Not use any prior arrears as a basis for a nonpayment eviction proceeding;
  • Waive late fees;
  • Not increase monthly rent due 1 year from the date the first CERAP payment is received; and
  • Not evict based on an expired lease for a period of 12 months after the first CERAP payment is received, UNLESS the property is in a building with 4 or fewer units, and in which case, the landlord may decline to extend the lease only if the landlord or his immediate family intends to immediately occupy the unit for personal use as a primary residence.

Nonetheless, landlords who accept CERAP may still commence evictions against tenants who:
  • Intentionally cause significant damage to the property;
  • Persistently and unreasonably engage in behavior that substantially infringes on the use and enjoyment of other tenants or occupants; or
  • Causes a substantial safety hazard to others.

What should landlords do now?
Start an eviction proceeding and challenge the hardship, which will either result in CERAP money or permission to continue the eviction process. Alternatively, if a landlord does not have a good faith basis to challenge the hardship or does not want to be restricted by the program’s requirements, then, a landlord should bring a breach of contract lawsuit in NYS Supreme Court against their non-paying tenants, as explained by the federal courts in Elmsford Apartment Associates LLC v. Cuomo.



Thursday, August 19, 2021

Federal Judge allows CDC Eviction Moratorium to Remain in Effect

On August, 13, 2021, U.S. District Court Judge Dabney Friedrich held that the CDC eviction moratorium, which was extended by the Biden Administration through October 3, 2021 (“New CDC Moratorium”) should remain in effect.

This means that tenants may still be protected, subject to certain rules, until October 3, 2021.

As background, the CDC’s previous moratorium, which was first enacted in September 2020 and was challenged all the way up the US Supreme Court, expired on July 31, 2021.

Yet, before it expired the Supreme Court upheld its effectiveness until an appeal was decided on its merits, which remains pending. Now, the moratorium, which we discuss more fully here, remains in effect because Judge Friedrich ruled that it remains subject to the prior stay. on the basis that the New CDC Moratorium is subject to the D.C. Circuit Court’s stay.

Stay tuned for changes as Judge Friedrich’s decision is currently under appeal.


Friday, August 13, 2021

U.S. Supreme Court Allows NYS Landlords to Resume Evictions

The U.S. Supreme Court blocked part of New York’s eviction moratorium, specifically Part A of the COVID-19 Emergency Eviction and Foreclosure Protection Act of 2020 (CEEFPA), which imposed a moratorium on evictions for tenants who provide their landlord with a signed hardship declaration. What this means is that New York State landlords can now resume their eviction matters.

As a reminder, CEEFPA allowed tenants to simply sign and provide a Hardship Declaration to their landlords to halt any eviction proceeding against them. The Supreme Court found that this self-certification by the tenant and CEEFPA’s limited avenue for a landlord to challenge the tenant’s declaration “violates the Court’s longstanding teaching that ordinarily ‘no man can be a judge in his own case.’”

The Supreme Court’s decision is a big win for landlords and it came at a time when everyone is wondering whether CEEFPA’s eviction moratorium, which was set to expire on August 31, 2021, would be extended. However, New York landlord-tenant courts and county sheriffs have yet to implement rules which reflect the Supreme Court’s decision. We’ll keep you posted.

Although the New York eviction moratorium is now essentially nonexistent, it should be noted that the CDC moratorium is still in place until October 3, 2021. However, with the CDC moratorium basically having the same framework as CEEFPA, it's possible that it will also come under the same scrutiny as CEEFPA and also be struck down. What do you think?