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:
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.
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.
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:
If a tenant is approved for rental assistance under CERAP, the money goes directly to the landlord. However, landlords who accept CERAP payments, must:
Nonetheless, landlords who accept CERAP may still commence evictions against tenants who:
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.
- Tenants or occupants obligated to pay rent in their primary NYS residence;
- 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;
- Tenants who demonstrate a risk of experiencing homelessness or housing instability; AND
- 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.
- 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.
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.
