ADDITIONAL PROTECTION FOR TENANTS UNDER NEW LAW

On December 28, 2020, Governor Cuomo signed into law the COVID-19 Emergency Eviction and Foreclosure Prevention Act of 2020 (“EEFPA”). How does this law affect the rights of tenants and landlords in the midst of a global pandemic?

Hardship Declaration Notice

The EEFPA has introduced and defined a “Hardship Declaration” which is a statement of notice that must be served upon the tenant in 14-point font. The Hardship Declaration notice can be found on the New York Courts website. Essentially, the notice advises the tenant that if they have lost income or had increased costs during the COVID-19 pandemic, or if moving would pose a significant health risk to the tenant or a member of their household, the tenant is to sign a Hardship Declaration Form and deliver it to their landlord. Said form will prevent that tenant from being evicted until May 1, 2021. A copy of the Hardship Declaration Form is available on the New York Courts website.

 

Pre-Eviction Notices and Hardship Declaration Notice

In any case in which pre-eviction notices would be required pursuant to the Real Property Actions and Proceedings Law, a landlord is now required to serve with said notice a Hardship Declaration notice and provide  a mailing address, telephone number and electronic mail address of the landlord or the landlord’s agent. In addition, the notice is to include a list of all not-for-profit legal service providers in the county where the premises is located. Said list can be found on the New York Courts website. The notice must be provided to the tenant in the tenants’ primary language. Translations of the Hardship Declaration notice can be found on the New York Courts website.

 

Prohibition on New Proceedings until May 1, 2020

Importantly, the EEFPA states that if there is no pending proceeding as of the effective date of the law, December 28, 2020, and the tenant has signed and returned a Hardship Declaration form to the landlord or its agent, “there shall be no initiation of an eviction proceeding against the tenant until at least May 1, 2021.” There is an exception to this which is detailed below.

 

Automatic Adjournment of Pending Proceedings

All eviction proceedings that had been filed and were pending as of December 28, 2020, are required to be adjourned for 60 days. This includes any new matters that are filed within 30 days of the effective date of the EEFPA. The Court in pending proceedings is to issue to the tenant the Hardship Declaration notice. Additionally, the EEFPA also prevents entry of default judgments prior to May 1, 2021, without first holding a hearing.

 

 

Evictions for Breaching the Quiet Enjoyment of other Tenants

There is one exception to the prohibition on initiation of eviction proceedings. The only petition for residential eviction that may be filed is for eviction of a tenant(s) on the basis that the tenant is violating the lease by “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.”  EEFPA Part A, Section 9. However, even this filing has a heightened burden of proof. The EEFPA requires more than a mere allegation of the behavior by landlord or the landlord’s agent (which formerly was acceptable for a filing and to obtain a court date). Now, the Court will scrutinize the petition and if said petition fails to establish that the tenant persistently and unreasonable engaged in such behavior, the Court shall stay or continue to stay any further proceedings until at least May 1, 2021.

If a landlord wishes to commence a proceeding on this basis, the landlord must serve the Hardship Declaration notice meeting all of the above-listed requirements and complete an affidavit of service setting forth the manner in which the notice was served and verifying that it was served in the tenant’s primary language. The notice should be served with the petition for eviction and therefore, service must comply with the requirements of the Real Property Actions and Proceedings Law. The affidavit of service must also attest that as of the date of the filing of the petition and affidavit of service, the landlord nor its agent had received a hardship declaration form from the tenant, or that a hardship declaration form has been received by the landlord, but the tenant is persistently and unreasonably engaging in behavior that substantially infringes on the sue and enjoyment of other tenants or occupants or causes a substantial safety hazard to others, with a specific description of the behaviors alleged.

 

Rebuttable Presumption

Another hurdle for a landlord to jump is the rebuttable presumption created by the EEFPA. If a tenant submits a Hardship Declaration form to the landlord, its agent, or the Court, there shall be a rebuttable presumption that the tenant is experiencing a financial hardship. The burden will transfer to the landlord to prove to the Court that the tenant is not experiencing a financial hardship.

 

Effect of EEFPA on Warrants

For those matters in which a warrant had been issued prior to the effective date of this law, but had not yet been executed by law enforcement, there are additional special requirements that must be met. Namely, any warrant issued against a tenant shall not be effective unless the tenant has not submitted the hardship declaration form after proper service of it, or the tenant is ineligible for a stay of the warrant because the court has found that the tenant is persistently and unreasonably engaging in behavior that substantially infringes on the sue and enjoyment of other tenants or occupants or causes a substantial safety hazard to others. Additionally, if any tenant delivers the hardship declaration to the officer to whom the warrant is directed, the officer shall not execute the warrant and shall return the form to the Court. The exception being if the tenant is being evicted on the basis of the behaviors described above.

 

Conclusion

Many landlords will read this new law and think it unfairly favors tenants. Many tenants will read this new law and sigh with relief. This law poses many difficulties for landlords who have been without rental income since March 2020 in many cases. However, because of the pandemic and in compliance with the recommendations of the Centers for Disease Control, the New York State legislature is providing further protection to tenants in these difficult times.

For those landlords seeking eviction on the basis of non-payment or holdover, these proceedings cannot be commenced until after May 1, 2021. Landlords should continue to keep records of rent that is due and owing. Tenants, if not experiencing a financial hardship, should work with their landlord to pay rent due.

Importantly, this law does not cancel any rent obligations of a tenant. After May 1, 2021, unless that date is extended or otherwise prohibited by federal law, landlords will be permitted to pursue tenants on the basis of non-payment and will be entitled to a judgment for all rent due.

 

 

 

Erin M. Tyreman

For more information contact Melvin & Melvin Attorney, Erin M. Tyreman, Esq.