New Legislation Regarding the Eviction Moratorium
Shortly after the Supreme Court, on August 26, 2021, in the Matter of Alabama Association of Realtors, et al v. Department of Human Resource struck down the controversial nationwide, unprecedented action by the CDC, in issuing an Eviction Moratorium that halted most residential evictions throughout the country through October 3, 2021, the New York Lawmakers immediately went to work at the direction of our new Governor Kathy Hochul.
While the Supreme Court held that the CDC exceeded its limited scope of authority, by using "a decade-old statute that authorizes it to implement measures like fumigation and pest extermination" and not "the sweeping authority that it asserts," the Supreme Court explained that proper legislation may still be enacted to pause evictions. As such, NEW YORK was free to extend the moratorium in the Big Apple.
An extended moratorium in New York has just been declared, effective immediately, with Governor Kathy Hochul’s signature placed on the bill. A special legislative extraordinary session was called Wednesday, September 1, 2021, redrafting a new anti-eviction law that relates to commercial and residential evictions, and foreclosure protections. The purpose of the revised bill is “to allow New Yorkers to stay in their homes and provide landlords with funding for unpaid rent for tenants that have experienced financial hardship due to the Covid-19 pandemic.” Essentially, the bill provides an extension to the eviction moratorium until January 15, 2022 if the tenant qualifies. There are, however, new nuances to the law.
The amendments to the law provide the landlord with a procedure that it must initiate, by motion practice, which then affords it the ability to challenge a tenant’s hardship claim in Court. A Judge, after the hearing, then rules on whether a tenant qualifies, weighing key factors such as loss of income or increase in expenses. If the landlord proves that the tenant does not qualify, the eviction proceeding may proceed on the merits, otherwise it will be postponed until the January 15, 2022 date. This change essentially tiptoes around the recent Supreme Court’s ruling in Chrysafis v Marks that just held that the scheme to self-certify one’s own hardship in an affidavit to be unconstitutional as it violates the Court’s long-standing teaching that ordinarily “no man can be a judge of his own case.” Now, the tenant still self certifies his/her hardship, however, the landlord is provided an opportunity to challenge the tenant’s assertions at the landlord’s cost and expense.
What does all this mean? The State has more time now to distribute the 2.7 billion dollars in aid. Tenants remain in possession without still tendering rent, awaiting a grant, but what about the landlords who have not received rent in over 18 months? Many landlords are middle income and suffering. While foreclosures are paused as well if the owner qualifies, income generated from these buildings are needed to pay the utilities, taxes and food on the table for many landlords and their families. The extension is just another delay; and while we all cross our fingers that one day soon we will be able to see the light at the end of the tunnel by this pandemic, the legislature needs to balance more carefully the rights of all New Yorkers.
NY State Senate Bill S50001 (nysenate.gov)
If you are wondering how this new legislation affects you and / or your business, please feel free to reach out to us with questions. Hope you enjoy the rest of the summer; Happy Labor Day!
