LIEB BLOG

Legal Analysts

Showing posts with label cdc. Show all posts
Showing posts with label cdc. Show all posts

Monday, December 14, 2020

Commercial Eviction and Foreclosure Moratoriums Extended through January 31, 2021

Through Executive Order 202.81, Governor Cuomo extended the moratoriums for the initiation of a proceeding or enforcement of an eviction of any commercial tenant for nonpayment of rent or a foreclosure of any commercial mortgage for nonpayment of such mortgage to January 31, 2021. This means that no eviction or foreclosure proceeding may be commenced against commercial tenants for nonpayment of rent or mortgage until such date.

In addition, New York City’s Guaranty Law, which prohibits commercial landlords from enforcing personal guaranties against natural persons for payments during the COVID-19 period, was extended and now covers payments due from March 7, 2020 through March 31, 2021. The law was recently challenged in the United States District Court in the Southern District of New York for violating the Constitution, but the law was ultimately upheld. The Court reasoned that while the law does substantially impair contracts, the law is constitutional as it advances a legitimate public interest, and the law is reasonable and necessary in advancing such interest.

While commercial landlords may still seek relief by commencing a holdover eviction, landlords may be better off commencing an action in Supreme Court where they can seek damages for breach of contract, removal of the tenant through an ejectment action, and the enforcement of personal guaranties (for non-NYC landlords), if any. Landlords are advised to consult counsel to ensure compliance with the terms of the lease and all landlord-tenant laws currently in place to avoid any delays and additional damages.

There are currently no moratoriums in place for residential evictions. Residential landlords may commence both holdover and nonpayment proceedings. However, for nonpayment proceedings, courts may not grant a judgment of possession and warrant of eviction against tenants in a nonpayment proceeding who raise the affirmative defense of a COVID-19 financial hardship and proves same. Further, tenants who submit a CDC declaration form stating their inability to pay rent, among others, to their landlords are also protected from nonpayment eviction proceedings until December 31, 2020.



Monday, October 12, 2020

Residential Eviction Suspension Being Lifted Today (October 12, 2020)

Effective October 12, 2020, residential evictions are back in NYS with suspensions being lifted.

Specifically, Chief Administrative Judge Lawrence K. Marks issued Administrative Order 231/20, which permits the prosecution of residential evictions commenced after March 17, 2020.

As of October 12, 2020, here are the rules are in place for residential and commercial proceedings:

Residential Eviction Proceedings
  • Proceedings Commenced Prior to March 17, 2020:
    • The court must conduct a status or settlement conference wherein the court reviews the procedural history of the case, any effect of the COVID-19 pandemic, if any, upon the parties, any other relief or protection available to the tenant, among others. Thereafter, the court may take further steps it deems appropriate, including allowing the matter to proceed and allowing the enforcement of warrants of eviction. 
  • Proceedings Commenced After March 17, 2020: 
    • All residential eviction matters (nonpayment and holdover) may proceed subject to: 
        • Current or future federal and state laws affecting evictions; 
          • For evictions based on nonpayment of rent: 
          • FHAFannie MaeFreddie Mac borrowers are prohibited from starting nonpayment evictions and are encouraged to seek forbearance and other options with their lenders; 
          • The CDC also halts evictions for nonpayment of rent until December 31, 2020. You can read more about it and the penalties HERE
        • The individual court’s scheduling requirements as affected by health and safety concerns due to COVID-19. 
          • Courts are prohibited from issuing a warrant of eviction or judgment of possession against a residential tenant or other lawful occupant who suffered a financial hardship during the COVID-19 period and is being evicted for non-payment of rent due during such period. 
          • Currently, the COVID-19 period runs from March 7, 2020 to January 1, 2021, as extended by Executive Order 202.66 and subject to any further extensions. This means that courts will only issue money judgments (no warrants of evictions and judgments of possession) on eviction proceedings based on nonpayment of rent due during the COVID-19 period. 

Commercial Eviction Proceedings

  • Proceedings Commenced Prior to March 17, 2020:
    • May proceed in the normal course subject to:
        1. Any existing prohibition on the prosecution or enforcement of evictions (as of this writing, there are none); and
        2. The suspension of statutory deadlines until November 3, 2020 per Executive Order 202.67.
  • Proceedings Commenced After March 17, 2020:
    • Eviction proceedings for nonpayment of rent are prohibited until October 20, 2020 per Executive Order 202.64 and subject to any further extensions.
    • Holdover eviction proceedings may be commenced but remain suspended until further order of the court per Administrative Order 160A/20. This means the petition may be filed and the tenants may file an answer, but the proceedings shall remain suspended. However, if all parties are represented by counsel, the matter may be eligible for calendaring virtual settlement conferences with the court.

All Evictions
  • All proceedings will be conducted remotely whenever appropriate.
  • Mediation and other alternative dispute resolution methods are encouraged where either all parties are represented by counsel; or all parties are unrepresented by counsel.
  • All petitions must include the Notice to Respondent Tenant.
  • Filing and service may be done through NYSCEF, if available and by mail, if not.

Landlords should immediately file their evictions and preserve their rights.


Thursday, September 03, 2020

CDC's Moratorium - Required Declaration for Effectiveness - As Promised on the LiebCast

State of         ______________    )
                                                     ) ss:
County of     ______________    )

______________, being duly sworn, deposes and says the following: 

I certify under penalty of perjury, pursuant to 28 U.S.C. 1746, that the foregoing are true and correct:

 I have used best efforts to obtain all available government assistance for rent or housing;
 I either expect to earn no more than $99,000 in annual income for Calendar Year 2020 (or no more than $198,000 if filing a joint tax return), was not required to report any income in 2019 to the U.S. Internal Revenue Service, or received an Economic Impact Payment (stimulus check) pursuant to Section 2201 of the CARES Act;
 I am unable to pay my full rent or make a full housing payment due to substantial loss of household income, loss of compensable hours of work or wages, lay-offs, or extraordinary out-of-pocket medical expenses;
 I am using best efforts to make timely partial payments that are as close to the full payment as the individual’s circumstances may permit, taking into account other nondiscretionary expenses;
 If evicted I would likely become homeless, need to move into a homeless shelter, or need to move into a new residence shared by other people who live in close quarters because I have no other available housing options.
 I understand that I must still pay rent or make a housing payment, and comply with other obligations that I may have under my tenancy, lease agreement, or similar contract. I further understand that fees, penalties, or interest for not paying rent or making a housing payment on time as required by my tenancy, lease agreement, or similar contract may still be charged or collected.
 I further understand that at the end of this temporary halt on evictions on December 31, 2020, my housing provider may require payment in full for all payments not made prior to and during the temporary halt and failure to pay may make me subject to eviction pursuant to State and local laws.

I understand that any false or misleading statements or omissions may result in criminal and civil actions for fines, penalties, damages, or imprisonment. 
_________________________________ 
Signature of Declarant                                 


Sworn to before me this 
____ day of ___________, 2020

_________________________________ 
Notary Public