Tenants Find Safe Harbor
by Jamie Heiberger Harrison and Ricardo Vasquez
REGARDING NEW YORK STATE’S “SAFE HARBOR ACT” AND WHAT IT MEANS FOR NEW YORKERS WHO ARE NOT PAYING RENT...
On July 6, 2020 New York Governor Cuomo issued Executive Order 202.48. The Order generally pertains to residential tenants, and reads in pertinent part as follows:
“The directive contained in Executive Order 202.28, as extended, that prohibited the commencement or enforcement of either an eviction of any residential or commercial tenant, for nonpayment of rent or a foreclosure of any residential or commercial mortgage, for nonpayment of such mortgage, is continued only insofar as it applies to a commercial tenant or commercial mortgagor, as it has been superseded by legislation for a residential tenant, and residential mortgagor.... in Chapters 112, 126, and 127 of the Laws of 2020;” From the LegiScan website, Chapter 127 of the Laws of 2020, which is part of new set of laws known as the “Safe Harbor Act”, is described as follows:
Chapter 127:
Provides that ...."no court shall issue a warrant of eviction or judgment of possession against a residential tenant that has suffered a financial hardship for the nonpayment of rent that accrues or becomes due during the COVID-19 covered period.”
This new law is known as part of the “Safe Harbor Act” and greatly impacts landlords and provides broad Tenant protection by New York State. It has now been interpreted that this change in law provides certain protections from eviction to residential tenants in New York. How the Housing Courts in New York City will process the change in the law for the most part remains to be seen because at the time of this writing the courts are still far from fully functional. As a result of Executive Order 202.48, and as memorialized in the newest memorandum issued by Chief Judge Marks, landlords and their attorneys are no longer required to provide letters and affidavits regarding Covid-19 investigations attached to pleadings prior to commencing actions in Housing Court in New York City.
Judge Mark’s Memorandum dated July 7, 2020 sets forth:
“Effective immediately, service of an attorney’s affirmation or a petitioner’s affidavit with the petition or complaint in an eviction or foreclosure proceeding – whether residential or commercial – is no longer required.”
That being said, the “Safe Harbor Act” does make Covid-19 related financial issues an affirmative defense in nonpayment of rent cases for the time being and certainly tenants will be asserting Covid-19 as a defense as cases move forward. Tenants will have to prove Covid-19 related financial issues to utilize the defense. Evictions in New York City are still on hold for all tenants whether arrears are pre-Covid-19 or post-Covid-19. However, landlords may file new cases. There is no new guidance yet from courts as to when or how they will actually start to move new cases onto the courts’ calendars. Landlords’ attorneys are engaged on a daily basis in Skype conferences for pre-Covid-19 matters in which the Tenant has counsel. Please also note that the “Cares Act” is still in effect and cases cannot be started in LIHTC buildings or federally subsidized buildings until after July 23, 2020. The Housing Courts are now trying to implement an e-file system for new cases similar to the Federal or Supreme Courts, and that should be in to place in the next two weeks which will greatly help in getting new matters filed. I will continue to keep you apprised as the rules and laws unfold.As always, I am here to answer any questions that you might have and wish you a safe and healthy weekend!!
My Best Always,
Jamie
Footnote 1:
For residential mortgagors, Chapters 112, 126 of the “Safe Harbor Act” read as follows:
Chapter 112:
“Relates to the forbearance of residential mortgage payments; requires New York regulated banking organizations to make applications for forbearance for residential mortgages available to qualified mortgagors during the period in which the NY on PAUSE order is in effect in the county wherein the qualified mortgagor is located and to grant such applications for a period of 180 days.”
Chapter 126:
“Relates to expenditures and temporary transfers of reserve funds for expenses related to a state disaster emergency (Part A); relates to issuing a moratorium on utility termination of services during periods of pandemics and/or state of emergencies (Part B); relates to the forbearance of residential mortgage payments for qualified mortgagors for a period of up to 180 days with the option to extend for an additional 180 days (Part C); relates to hearings conducted on a felony complaint during a state disaster emergency (Part D).”
Footnote 2:
The above analysis incorporates writing by Eric Kahan, Esq.
