CovidLandlord TenantNew York Evictions During the COVID-19 Pandemic

October 19, 2021by Gregory Byrnes2
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Throughout the COVID-19 pandemic, New York State and New York City have enacted a number of laws, regulations, and executive orders to protect both residential and commercial tenants. Navigating the complex legal structure created by the pandemic can be very difficult and arduous process. This complexity has left both landlords and tenants with a number questions. This article will address some of those questions.

Is there a moratorium on evictions in New York?

Yes and No. In New York residential and commercial tenants can temporarily avoid the commencement of an eviction proceeding by signing and returning to the landlord a Hardship Declaration. However, the moratorium is not automatic unless the Hardship Declaration is signed, the tenant meets certain criteria, and there are exceptions to the moratorium (discussed below). 

The residential tenant Hardship Declaration pauses an ongoing eviction proceeding and prevents the landlord from commencing a case through January 15, 2022, if: (1) the “tenant, lawful occupant, or other person responsible for paying rent, use and occupancy, or any other financial obligation under a lease or tenancy agreement “, and (2) they are experiencing a financial hardship and are unable to pay rent or other financial obligations under the lease or are unable to find suitable permanent housing because of: (i) a significant loss of household income during COVID-19, (ii) an increase in necessary out-of-pocket expenses relating to performing essential work or relate to health impacts during COVID-19, (iii) childcare responsibilities or responsibilities to care for an elderly, disabled, or sick family member during COVID-19 which have impacted the tenant’s ability or the ability of someone in the household to obtain meaningful employment, earn income, or increased necessary out-of-pocket expenses, (iv) moving expenses and difficulty securing alternative housing make it a hardship to relocate during COVID-19, or (3) moving into new permanent housing would pose a significant health risk because one or members of the household have increased risk for severe illness or death from COVID-19 due to being over the age of 65, having a disability, or have an underlying medical condition.

The commercial tenant Hardship Declaration pauses an ongoing eviction proceeding and prevents the landlord from commencing a case through January 15, 2022, if the tenant: (i) is a resident of the state of New York, (ii) is independently owned and operated, (iii) is not dominant in its field, (iv) employs one hundred or fewer persons, (v) and is unable to pay rent due to financial hardship or unable to find alternative commercial property because of: (i) a significant loss of revenue during COVID-19, (ii) a significant increase in necessary expenses related to providing PPE equipment to employees or purchasing and installing other protective equipment to prevent the transmission of COVID-19, or (iii) moving expenses and difficulty in securing an alternative commercial property make it a hardship for the business to relocate to another location during COVID-19. 

How can a landlord evict a tenant during the COVID-19 Moratorium (Exceptions)?

Other then the eviction of a residential tenant based solely on the non-payment of rent (Tenant Safe Harbor Act), a landlord can evict any other tenant, unless the tenant returns a signed Hardship Declaration. Even if a tenant does return a signed Hardship Declaration, the landlord may still maintain an eviction if: 1) the tenant does not meet the Hardship Declaration Requirements, or 2) the tenant is intentionally causing significant damage to the property or persistently and unreasonably engaging in behavior that substantially infringes on the use and enjoyment of other tenants or occupants or causes a substantial safety hazard to others.

Can a landlord challenge a Hardship Declaration?

Yes. As of September 2, 2021, the residential and commercial moratoriums were revised to allow landlord’s the ability to challenge a tenant’s claim of hardship. If a landlord has a good faith belief that the tenant does not qualify for hardship, the landlord can file the case or a motion with an affidavit attesting to why they do not believe the tenant is suffering hardship under the moratoriums. The burden of proof will be on the landlord to establish the tenant does not qualify. 

Can a landlord evict a residential tenant for not paying rent during the COVID-19 Moratorium?

No. Under the Tenant Safe Harbor Act, a landlord may not evict a residential tenant or other lawful occupant for the non-payment of rent if the tenant has suffered a financial hardship or a financial hardship that becomes due between March 7, 2020 and the date that the Governor’s executive order restrictions no longer apply in the county of the tenant’s residence. A landlord may evict the tenant for a reason other then the payment of rent i.e. lease expiration or violating a substantial part of the lease under the Tenant Safe Harbor Act.

Can I sue a guarantor for arrears during COVID-19?

Yes and no. The New York City council enacted Local Law 55 of 2020, as amended and extended by Local Law 98 of 2020 and Local Law 50 of 2021, to protect individual guarantors from being held liable for arrears accruing during between March 7, 2020 and June 30, 2021. A guarantor is protected from the payment of arrears during the covered covid period if: (1) the tenant was required to cease serving patrons food or beverage for on-premises consumption or to cease operation under executive order number 202.3 issued by the governor on March 16, 2020; the tenant was a non-essential retail establishment subject to in-person limitations under guidance issued by the New York state department of economic development pursuant to executive order number 202.6 issued by the governor on March 18, 2020; or The tenant was required to close to members of the public under executive order number 202.7 issued by the governor on March 19, 2020; 2) The default or other event causing such natural persons to become wholly or partially personally liable for such obligation occurred between March 7, 2020 and June 30, 2021, inclusive. These guarantor protections only apply in New York City.

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