Last Monday the New York State Legislature passed, and the Governor promptly signed, the COVID-19 Emergency Eviction and Foreclosure Prevention Act of 2020 (“EEFPA”) into law. EEFPA was designed to dramatically slow or stop any eviction proceeding in the State and to provide relief to homeowners affected by the pandemic.
Since Executive Order 202.8 was issued on March 03, 2020, initiating a temporary pause on eviction proceedings, prosecuting evictions in NYS has been fraught. After the initial moratorium was extended by E.O. 202.28 on June 30, 2020, New York tenants gained additional protections through the Tenants Safe Harbor Act (“TSHA”). Although some evictions were able to resume October 01, 2020, New York State Unified Court System administrative orders, moratoria on default judgments, and court backlogs have also combined to stymie landlords’ efforts to remove nonpaying tenants. Via the latest executive order addressing evictions, the TSHA protections were extended through January 01, 2021. To ensure most tenants were protected from eviction during the brutal pandemic winter, and perhaps in an effort to add clarity for landlords, tenants, and the courts, the legislature enacted EEFPA before the latest executive order extension ran out.
EEFPA Eviction Limitations
The EEFPA halts eviction proceedings, including those filed prior to the start of the pandemic and those in which an eviction warrant has already been issued, until at least March 01, 2021. The only exception is for those cases in which the “tenant is 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.” Pending cases in which the landlord seeks to claim that the tenant is engaging in infringing or hazardous behavior must be re-filed unless their initial petition alleged that behavior. Although not in the text of the law, Senator Brian Kavanagh, who introduced the senate version of the bill, indicated that the exception was meant to include instances of property damage. Landlord’s allegation of this behavior is insufficient and those attempting to use the exception should be prepared to substantiate their claims.
Any other tenant may forestall eviction until no sooner than May 01, 2021 by submitting a declaration to the court that they’re unable to pay rent or find alternative housing because of a pandemic related hardship or that moving presents a special health risk because of the tenant or a household member’s age or other individualized health risk. The Office of Court Administration will publish the form declaration provided for in the law. Landlords are required to provide this form to tenants along with any documents served on the client in connection with a foreclosure. Tenants can keep landlords from filing new petitions against them by providing the declaration directly to their landlord. Tenants should take note that it’s a Class A misdemeanor (up to one year in jail) to falsify the declaration, although they aren’t asked to show proof.
EEFPA calls the courts to vacate default judgments entered against tenants prior to its enactment. It also limits the ability of courts to issue new defaults to cases in which a hearing is held to give tenants a chance to claim a pandemic related hardship.
EEFPA has no effect on commercial evictions.
As with all the previous moratoria, rent is still due under all leases. When the courts resume hearing these cases tenants can be liable for all past due amounts.
Protections for Property Owners
Residential property owners facing foreclosure will also enjoy the benefit of an automatic stay until at least March 01, 2021. Foreclosure proceedings, tax foreclosures, and tax lien sales can receive similar protections to tenants if they submit a form hardship declaration provided for in the EEFPA to their mortgage lender, other foreclosing party, or to the court. Submitting the hardship declaration will entitle owners to stay until at least May 01, 2021. Landlords who are natural persons owning 10 or fewer units, including their primary residence, but not including vacant or abandoned units, are entitled to take advantage of this protection for any of their property.
Lending institutions are prohibited from discriminating against property owners seeking credit on the basis of those owners having been granted a stay under the EEFPA. This means that lenders cannot make a negative report to a credit reporting bureau based on an owner taking advantage of any of the protections contained in the new law.
As with amounts due under leases, all mortgage payments and taxes will remain the responsibility of the owners despite these changes in enforcement.
Property Tax Relief
Local governments are required to carry over the Senior Citizens’ Homeowner Exemption (“SCHE”) and Disabled Homeowner Exemption (“DHE”) exemptions from 2020 assessment roll to the 2021 assessment roll at same levels. They’re also required to provide renewal applications for anyone who might be eligible for a larger exemption in 2021 and allows for an increase if the owner is entitled to one. Localities may also set procedures for assessors to require renewal applications from people the assessors believe may no longer be eligible for 2021. Exemption recipients don’t have to file renewal applications in person.
If you have questions concerning the Emergency Eviction and Foreclosure Prevention Act the attorneys at the Wladis Law Firm may be reached at (315) 445-1700 or by emailing your usual firm contacts. We will do our best to provide you with updates and will be available to answer questions as circumstances change.
Christopher J. Baiamonte
Mr. Baiamonte concentrates his practice primarily on civil litigation. He counsels individual, corporate, and municipal clients on resolving disputes ranging from environmental liability to shareholders rights to creditor–debtor suits. He also works with clients to navigate various state and federal regulations relating to areas such as environmental protection, employment, and civil rights.