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

Thursday, September 09, 2021

NY Legal Podcast Does In-depth Analysis On Why Landlords Statewide Can Evict Tenants Even With The Eviction Ban

"The Lieb Cast" (a New York based legal podcast hosted by Attorney Andrew Lieb and Lauren Lieb) has featured an entire episode devoted to New York's eviction moratorium (which gives landlords options to pursue evictions or get paid through governmental rent relief). "The Lieb Cast" discusses why landlords can still sue for a money judgment in supreme court. In addition, the podcast explores residential and commercial distinctions for evictions, plus the foreclosure moratoriums in New York.

"NYS landlords can and should file evictions. The new moratorium does not totally prevent evictions and if you file, you will either be able to proceed with the eviction or your tenant will be directed by the court to get government money to pay your rent". Said Andrew Lieb, Co-Host of The Lieb Cast.

 

Podcast Link: https://www.listentolieb.com/876124/9130411-ny-landlords-can-evict-tenants-even-with-the-eviction-ban-here-is-what-you-need-to-know

About The Lieb Cast

Business success takes hard work, but physical hustle can only get you so far. You also need to work out your mind to succeed today. Join Andrew Lieb's weekly podcast to explore how current events impact your business and real estate holdings. This podcast is for business owners and managers who want to stay up to date with the latest legislation and regulations that will impact their business. Learn how to navigate these laws to avoid getting sued, grow and market your business, manage employees, and strategize to dominate our ever-changing business world.

Andrew Lieb is a litigator, corporate trainer, author, real estate school owner, and entrepreneur. He is joined on the air by Lauren Lieb, his wife and business partner, to present this educational and personal podcast. They coach their listeners to business greatness and entertain you with a ton of fun, sarcasm, wit, and banter. Search "Lieb Cast" on any podcast player.



Thursday, August 26, 2021

Podcast: Breakdown of New Eviction & Foreclosure Moratorium + Tips on Timing The Market

On episode 206 of The Lieb CastWe give an update on timing the real estate market and clarify new updates to the eviction & foreclosure moratoriums. Search "The Lieb Cast" on any podcast player. 





Thursday, August 05, 2021

CDC's Latest Eviction Moratorium - Applies to Counties with Red / Orange COVID on Map

On August 3, 2021, CDC issued its latest eviction moratorium to address the rise of the Delta variant. 


Here is what landlords and tenants need to know about the moratorium:

    1. It only applies to residential housing;
    2. The moratorium only applies where tenant(s) provide a declaration to their landlord(s);
    3. The Declaration is available here;
    4. The Declaration requires a sworn statement that the tenant(s):
        1. Have used best efforts to obtain all available governmental assistance; 
        2. Earned <=$99,000 in Calendar Year 2020 ($198,000 if filing jointly) with other financial options to qualify;
        3. Can't pay full rent because of stated work issues;
        4. Making best efforts to pay as much as possible of rent; 
        5. Would likely be homeless as a result of eviction; &
        6. Resides in substantial / high COVID county.
    5. Evictions are permitted for the following reasons:
        1. Engaging in criminal activity while on the premises;
        2. Threatening the health or safety of other residents;
        3. Damaging or posing an immediate & significant risk of damage to property;
        4. Violating any applicable building code, health ordinance, or similar regulation relating to health & safety; or
        5. Violating any other contractual obligation (other than rent payment). 
    6. Criminal penalties for violating this moratorium include a fine of <=$100,000 or one year in jail or both (<=$200,000 for organizations that violate the order). 

The counties subject to this Order can be found here - remember, the county must be an orange (substantial) or red (high) county for the moratorium to be applicable.




Thursday, June 03, 2021

As the National Ban on Evictions will be Lifted in June, There Will be a Rise of Evictions

With about 11 million Americans reported to be behind on their rent, experts predict that the number of evictions will increase when the national ban on evictions will be lifted on June 30th. New York State has extended the eviction and foreclosure moratoriums on both residential and commercial properties to August 31st, 2021. (A.7175)

While some states are still struggling to distribute the $45 billion in rental assistance, many renters continue to be behind on their housing payments.

If you would like to apply for rental assistance in NY, follow this link.

Have you applied for rental assistance?





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?




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 05, 2020

Federal Eviction and Foreclosure Moratoriums Invite Litigation

Andrew Lieb published the article in The Suffolk Lawyer, Federal Eviction and Foreclosure Moratoriums Invite Litigation. This article discusses issues that will be litigated if an eviction moratorium is raised as a defense to an eviction proceeding.

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



Wednesday, September 02, 2020

CDC's Residential Eviction Moratorium - Fines up to $500,000 and Jail - You Better Read This

CDC's eviction moratorium has teeth and the details matter. 

CDC issued an Agency Order, under the Public Health Service Act, to temporarily halt residential evictions to prevent the further spread of COVID-19 through December 31, 2020. 

The Order applies to residential tenants (not transient or "seasonal tenant[s]") who have provided an executed and sworn copy of the Declaration form, set forth in Attachment A of the Agency Order, to their landlord. 

Such Declaration swears that:
  1. The individual has used best efforts to obtain all available government assistance for rent or housing;
  2. The individual either (i) expects 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), (ii) was not required to report any income in 2019 to the U.S. Internal Revenue Service, or (iii) received an Economic Impact Payment (stimulus check) pursuant to Section 2201 of the CARES Act;
  3. the individual is unable to pay the full rent or make a full housing payment due to substantial loss of household income, loss of compensable hours of work or wages, a lay-off, or extraordinary out-of-pocket medical expenses;
  4. the individual is 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; and 
  5. eviction would likely render the individual homeless—or force the individual to move into and live in close quarters in a new congregate or shared living setting—because the individual has no other available housing options.
Landlords and tenants alike better get this right as DOJ can bring actions against violators and "a person violating this Order may be subject to a fine of no more than $100,000 if the violation does not result in a death or one year in jail, or both, or a fine of no more than $250,000 if the violation results in a death or one year in jail, or both, or as otherwise provided by law." If the violator is an organization, the fines are $200,000 and $500,000, respectively. 

This does NOT mean that landlords DON'T have rights.

It is expressly noted that "[t]his 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." Nor does the order preclude "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..." As we just wrote in Dan's Papers - Sue the Tenant for a Judgment

Finally, it is noted that the Order does not prevent evictions "for reasons other than not paying rent or making a housing payment" nor does it preclude "foreclosure on a home mortgage."

As an aside, the CDC is justifying this Order by pointing to the "over 174,000 deaths due to the disease" and comparing it "to the peak mortality observed during the 1918 H1N1 influenza pandemic," while asserting that "eviction moratoria-like quarantine, isolation, and social distancing-can be an effective public health measure utilized to prevent the spread of communicable disease." Perhaps we should stop downplaying this pandemic - it is real per Trump's Federal Agency. 



Tuesday, September 01, 2020

Legally Speaking: Rentals, Rights, Reality...What's a Landlord to do?