NYC Reporting Requirements for Airbnb Rentals Amended

On July 7, 2020, Mayor DeBlasio signed into Law Int. No. 1976 which modified the requirement for booking services, like Airbnb, to report short-term housing rental transactions. Essentially, beginning on January 3, 2021, the new law exempts booking services from reporting listings for rooms only, and for up to two (2) guests. They are also exempted from reporting if their property is rented for less than four (4) days in one quarterly reporting period.

Specifically, Section 26-2101 of the Administrative Code of the City of New York is amended to add a new definition for “qualifying listing”:

Qualifying Listing. The term “qualifying listing” means a listing or advertisement that offers a short-term rental via a booking service, and:
1. such listing or advertisement offers or appears to offer the short-term rental of an entire dwelling unit or housing accommodation, or
2. such listing or advertisement offers or appears to offer a short-term rental for three or more individuals at the same time.

Further, Section 26-2102 is amended to exempt booking services from the quarterly reporting of information for transactions associate with a qualifying listing when all such transactions within a reporting period result in the rental of a dwelling unit or housing accommodation for an aggregate of four (4) days or less. The reports must include the address of the rental listing, name address, and contact information from the host, total rent received, among others, and must be submitted to the Office of Special Enforcement.

Failure to comply with the reporting requirements under the Administrative Code of the City of New York may result in penalties not more than the greater of $1,500 or the total fees collected during the preceding year by the booking service for transactions related to the qualifying listing.

Eviction and Foreclosure Stay Continued for Commercial Properties Not Residential

On July 6, 2020, Governor Cuomo signed Executive Order 202.48 which affects the validity of many existing executive orders but most notable of which, is that it extends the stay on evictions and foreclosures proceedings to August 5, 2020 for commercial properties, but not for residential properties.

Essentially, Executive Order 202.48 extends the validity of Executive Order 202 up to 202.14, as continued and contained in Executive Order 202.27, 202.28, and 202.38 for another thirty (30) days through August 5, 2020 with some exceptions.

Real estate professionals should be aware that it does not extend the eviction and foreclosure moratorium in place as ordered in Executive Order 202.28 for all residential tenants and mortgagors. However, for commercial properties, an eviction and foreclosure stay is still in place until August 5, 2020.

As such, landlords and lenders should take note of the following:

• Residential evictions may now be commenced but courts are prohibited from awarding warrants of eviction and judgments of possession for tenants experiencing financial hardship for non-payment of rent that accrues or becomes due during the COVID-19 period pursuant to the Tenant Safe Harbor Act. Money judgments may be awarded. For more information, read our blog HERE;
• Residential foreclosure proceedings based on nonpayment due to COVID-19 are prohibited until August 20, 2020 pursuant to Executive Order 202.28;
• Commercial foreclosure proceedings based on nonpayment due to COVID-19 are prohibited until August 5, 2020 pursuant to Executive Order 202.48;
• Commercial evictions based on nonpayment are prohibited until August 5, 2020 pursuant to Executive Order 202.48; and
• Commercial holdover proceedings may be commenced beginning June 21, 2020 pursuant to Executive Order 202.8.

Landlords and lenders are advised to contact counsel to ensure that all laws, executive orders, and court directives in place due to the coronavirus pandemic are followed. As noted in our recent blog HERE, eviction and foreclosure proceedings now require that the petitioner/plaintiff file additional forms with the commencement documents pursuant to recent directives from Administrative Judge Lawrence K. Marks dated June 18, 2020 and June 23, 2020.

Statute of Limitations Tolled until August 5, 2020 by Executive Order

Governor Cuomo signed Executive Order 202.48 which extends most Executive Orders due to the coronavirus pandemic. Among others, Executive Order 202.48 specifically extends the tolling of statute of limitations until August 5, 2020 as provided by Executive Order 202.28. As we’ve previously noted in our blog, the Executive Order does not toll all deadlines in pending and ongoing actions. A copy of Executive Order 202.48 and 202.28 can be found HERE and HERE.

Stay tuned to our blog for changes to the current commercial eviction landscape pursuant to Executive Order 202.48.

5 Step Process For Employers/Landlords to Protect Against Disability Discrimination Lawsuits for Failure to Accommodate

A recent New York State, Appellate Division case (Hosking v. Memorial Sloan-Kettering Cancer Center) serves as a reminder to employers and landlords that they may be exposed to disability discrimination lawsuits if they do not engage in an "interactive process" prior to denying a reasonable accommodation request, even if the ultimate decision denying the accommodation is legal. As detailed in the above referenced case, a court will not even reach the step of determining whether the denial of the accommodation is legal if the employer/landlord fails to follow the proper process in evaluating the request.

To mitigate exposure to disability discrimination lawsuits (for failure to accommodate), employers/landlords should follow these steps:

1) Disseminate Policy: Employers/landlords should inform employees/tenants, in writing, that reasonable accommodations are provided to qualified individuals and of the process to request a reasonable accommodation. Employers should include its reasonable accommodation policy in its employee handbook and landlords should include its reasonable accommodation policy in its application and/or make the policy available onsite.

2) Provide Reasonable Accommodation Request Form: Employers/landlords should prepare a form for individuals requesting an accommodation to complete. Questions on the request form should include:

• General information of employee/tenant (i.e. name, contact information)
• Nature of the disability
• Requested/suggested accommodation(s) 

3) Review and Discuss with Employee/Tenant:

• Review accommodation request
• Request supporting medical documentation if necessary from employee/tenant to properly evaluate request 
• Discuss effectiveness/feasibility/reasonableness of potential accommodation(s) with employee/tenant  

4) Analyze Whether an Undue Hardship Exists: Employers/landlords are not required to provide an accommodation if providing such accommodation would present an undue hardship. Elements an employer/landlord should analyze include:

• Cost of the accommodation
• Resources of the employer/landlord
• Impact on operation of workplace/facility

5) Draft Determination Letter and Submit to Employee/Tenant: The letter should include:

• A summary of the interactive process
• The accommodation provided
• If an accommodation is denied, provide a detailed explanation (e.g. absence of an accommodation that would permit employee to perform essential functions of position, undue hardship)
• If accommodation request is granted, a date to follow up on effectiveness of accommodation

To learn more, listen to this podcast by CLICKING HERE.

Landlord’s New World – Sue for Money Judgment, Not Eviction

Effective June 30, 2020, the Tenant Safe Harbor Act (“Act”) was signed into law by Governor Cuomo. Essentially, the Act prohibits courts from issuing a warrant of eviction or judgment of possession against a residential tenant for non-payment due to financial hardship during the COVID-19 covered period, but it allows landlords to obtain a money judgment for rent in a summary proceeding. Alternatively, landlords can simply commence a plenary action for the money judgment in district, county, or supreme court as jurisdictionally appropriate.

The Act defines “COVID-19 covered period” as March 7, 2020 until the date executive orders which closed or restricted public or private businesses, or required the postponement or cancellation of non-essential gatherings for any size for any reason expire. This means that until all businesses are allowed to be 100% open, a tenant may claim financial hardship and not be evicted.

As a result, A landlord who starts a summary proceeding to evict a tenant or lawful occupant for non-payment of rent will not be able to get a warrant of eviction or judgment of possession if the tenant or lawful occupant claims that he suffered financial hardship during the COVID-19 covered period. Tenants and lawful occupants are also allowed to raise it as a defense in the summary proceeding.

To determine whether a tenant suffered a financial hardship, courts shall consider the following, among other relevant factors:

1. Tenant’s or lawful occupant’s income prior to the COVID-19 period;
2. Tenant’s or lawful occupant’s income during the COVID-19 period;
3. Tenant's or lawful occupant's liquid assets; and
4. Tenant’s or lawful occupant's eligibility for and receipt of cash assistance, supplemental nutrition assistance program, supplemental security income, the New York State disability program, the home energy assistance program, or unemployment insurance or benefits under state or federal law.

The Act, however, does not prohibit landlords from obtaining a money judgment for rent if successful in a summary proceeding. Landlords are advised to contact counsel to discuss the best strategy to manage their tenants while complying with the various executive orders and laws in place due to the coronavirus pandemic.