Attorney Andrew Lieb joined CBS to discuss the latest for Landlords. Evictions aren't straightforward and simple. There are many delay strategies available to tenants and landlord's need to invest in legal representation that knows how to overcome these strategies.

In an effort to improve neighborhood preservation and community renewal, New York will expand their current definition of preservation and renewal to include the administration of landlord training classes. The amended bill covers all municipalities and aims to provide assistance primarily to underserved neighborhoods. Landlords are not required to participate in these classes so they will not be penalized if they choose not to do so. 

The amended bill, A05393, which is awaiting Gov. Hochul's signature, will administer landlord training classes in the definitions of neighborhood preservation activities and community renewal activities. These classes will cover information ranging from building codes to evictions. Preservation and community renewal activities include, but are not limited to, repairs, renovations, and restorations. Ultimately, the goal of the Bill is to preserve underserved neighborhoods and to protect tenants from being unnecessarily bothered and illegally evicted by landlords. 

Landlords are having new laws thrown at them on a regular basis in light of the COVID pandemic. And if you're not tuned in, updates on regulations and new laws can be easily missed or misunderstood. These classes will afford landlords the opportunity to know what's going on in their industry. This Bill could also help landlords reduce legal fees by getting it right the first time around. 

Details have not yet been released regarding where the classes will take place, in what form - virtual or in-person, how often, and how New York will monitor whether or not a landlord has actually completed the training classes. If all goes according to plan, this Bill will be helpful to both landlords and tenants alike. The classes in theory sound like they will be an extremely useful tool for landlords. But, if a landlord is not required to attend the classes, will they actually go to them? 

On August 27, 2021, the US Supreme Court opened the floodgates for evictions throughout the United States in the case of Alabama Association of Realtors v. DHHS. 

Landlords, have you called your attorney yet to start the eviction process? 

Investors, are you ready for the housing market to swing because of a flood of inventory? 

Tenants, have you started to make moving arrangements and tried to settle your arrears for less money? 

Wow, can you feel that tsunami coming? 

Make no mistake, this is the first domino to fall in our housing market's shift into a buyer's market on fundamentals. Are you ready? 

For the legal context of what transpired, the CDC had issued a moratorium on evictions in counties with substantial or high levels of COVID-19, which we explained here. That moratorium was thrown-out by the District Court for the District of Columbia, but that Court knew that the issue would get to the Supreme Court so they stayed (a/k/a, paused) the effectiveness of their Order overturning the moratorium until the Supreme Court could weigh-in, which we explained here. Now, the Supreme Court has weighed-in and the eviction moratorium is ineffective, unlawful, and unenforceable. 

To be clear, the Supreme Court did not weigh-in on the policy of an eviction moratorium. They didn't rule as to whether it is a good idea, good policy, or needed for our country. Instead, the Supreme Court ruled "that the statute on which the CDC relies does not grant it the authority it claims." In plain language, the eviction moratorium was thrown-out because the CDC's basis for imposing the moratorium does not afford it that power.

You see, Executive Branch agencies, like the CDC, can't do whatever they want. They need power before they act, which comes from Congress. Without that power, they can't do anything. They can't issue regulations, rules, or directives. This power, called an enabling statute, was missing from the eviction moratorium, according to the Supreme Court, which explained that the power relied upon by the CDC was meant "to implement measures like fumigation and pest extermination," not eviction moratoriums. According to the Supreme Court, "our system does not permit agencies to act unlawfully even in pursuit of desirable ends." 

Knowing that, you should be wondering if Congress will act and impose its own eviction moratorium? 

For landlords, investors, and tenants that is a really important question given that the Supreme Court acknowledged, in its decision, that "[a]t least 80% of the country, including between 6 and 17 million tenants at risk of eviction, [fell] within the moratorium." 

However, we doubt that Congress will issue another moratorium because it can't get anything done with its division in the Senate. Further, the Supreme Court reminded Congress, in its decision, that a federal "moratorium intrudes into an area that is the particular domain of state law: the landlord-tenant relationship." 

As a result, evictions are about to flood the court systems. Are you ready for the eviction tsunami? 

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). 

• 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: 
• FHA, Fannie Mae, Freddie 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. 

• Nonpayment proceedings are subject to the Tenant Safe Harbor Act: 

• 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. 

• 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 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.

• Only in New York City, residential evictions are prohibited until October 1, 2020 and until September 4, 2020 for commercial evictions. This means eviction proceedings may be commenced but the Marshall cannot evict residential tenants until October 1, 2020 or until September 4, 2020 for commercial tenants.

• Beginning August 20, 2020, NYC Courts will begin accepting requisitions who have obtained judgments of possession issued before March 17, 2020. Such requisitions must be presented by motion on notice to the respondent and such motion must include the Notice to Respondent-Tenant and be served by mail and email, if possible. Trials for commercial evictions will also be conducted and virtual trials are strongly encouraged whenever possible. See DRP 214.

• Beginning August 20, 2020, landlords seeking to enforce a warrant of eviction issued before March 17, 2020 must request permission from the court through a motion on notice to respondent-tenant. Such motion must also include the Notice to Respondent-Tenant and be served by mail and email, if possible.

• In all matters where all parties have appeared, the judge has discretion to address any unexcused absence for noticed virtual or in-person appearances / conferences. The judge may reschedule with a “final” marking, resolve issues against such non-appearing party, impose sanctions, or issue a judgment of contempt.

• For deadlines to file an answer in residential eviction proceedings, no adverse action shall be taken based on the failure to file an answer in an eviction proceeding or failure to submit responsive papers to a motion submitted through the Electronic Document Delivery System (EDDS). All other rules contained in AO 160/20 and 121/20 remain in effect.

1. Form petitioner’s attorney affirmation or petitioner’s affidavit (for self-represented petitioners), indicating that counsel / petitioner has reviewed the various state and federal restrictions and qualifications on eviction proceeding and believes in good faith that the proceeding is consistent with those restrictions and qualifications; and
2. Form notice to respondent-tenants (in both English and Spanish), informing them they may be eligible for an extension of time to respond to the petition in light of legal directives related to the COVID-10 pandemic, and directing them to a telephone number and/or website link for further information.

• Petitioner has made a good faith effort to ascertain whether the respondent is a person eligible for unemployment insurance or benefits under state or federal law or otherwise facing financial hardship due to the COVID-19 pandemic;
• Respondent is not such a person; and
• Facts upon which the petitioner / individual signing the affidavit based such conclusion. See DRP 209.