Eviction Protection in New York is Much Weaker as Moratorium End Nears. Here’s Why

By Allison Dikanovic, THE CITY. This article was originally published by THE CITY

Protection from eviction in New York is much weaker after the U.S. Supreme Court ended the federal eviction moratorium Thursday after already blocking the enforcement of a key provision of a state’s moratorium that allowed tenants to stave off eviction by filling out a form called a hardship declaration.

The decision that gutted the state moratorium and the new rules for Housing Court that followed mark important changes to how eviction cases can move through New York’s courts. Meanwhile, the state’s eviction moratorium is set to expire Aug. 31.

The rent relief program is slowly distributing funds, spurring Gov. Kathy Hochul on her first day on the job to expedite the $2.7 billion in potential payouts.

“I want the money out now,” Hochul said Tuesday of the state’s delayed Emergency Rental Assistance Program, known as ERAP. “I want it out with no more excuses or delays.”

The governor said she has plans for a new campaign to reach more people with information on rent relief, and is hiring more staff to process applications and a team to analyze what barriers still exist in the application process.

Here’s what went down and what to know going forward.

These are the most important parts

• You’re no longer protected by the state eviction moratorium or the federal eviction moratorium. That means your eviction case can move forward in court, and your landlord may be able to file and move forward with a new eviction case against you.
• But don’t worry, you can’t be kicked out right away, and there are some other protections that may be available to you, so you don’t need to panic and move out on your own.
• There are still some legal steps that need to happen before a marshal can remove you from your home, and you may be eligible for protection from eviction through other programs.
• If your income qualifies, you have access to a free lawyer through the city’s Right to Counsel program.

So, what happened with the Supreme Court?

A group of landlords challenged New York’s eviction moratorium protection, saying it violates their rights.

On Aug. 12, the U.S. Supreme Court issued an unsigned order that found the main part of New York’s eviction moratorium — the section that let tenants ward off eviction by simply filling out a form called a hardship declaration — was unconstitutional since the process didn’t give landlords enough of an opportunity to push back.

This effectively made the moratorium useless as a defense against eviction.

Esteban Girón, an organizer with Crown Heights Tenant Union, said: “It is pretty devastating. The provision that allowed for us to do a declaration without showing proof, that was really the closest we could get to universal coverage.”

On Thursday, the Supreme Court also struck down the federal CDC moratorium, citing an overstep by the president to extend a protection that would properly have to be approved by congress.

What does that mean for tenants?

If you filled out a hardship declaration to protect yourself from eviction in New York State, that form is no longer valid, and the protections are no longer automatic.

This means that cases can start moving through Housing Court again, basically back to normal, with some other protections that remain in place.

New York’s eviction moratorium was set up so that if a tenant filled out a hardship declaration, that temporarily prevented them from going to court. Now, even if a tenant qualifies for another available protection, they’ll have to prove that in court instead of just being able to sign a form.

The courts are scheduling hearings both virtually and in person and are moving things along for eviction cases filed before the pandemic, cases filed during the pandemic and newly filed cases, according to a spokesperson from the state’s Office of Court Administration.

Jooyeon Lee, housing director at Brooklyn Legal Services, said: “A lot of cases are still there because clients are still in COVID hardship. That didn’t just go away. The money hasn’t come in yet.”

These protections are still available for tenants

ERAP — If you apply for the state’s Emergency Rental Assistance Program, or ERAP, your eviction case is paused and a new one can’t be started until you hear back whether you’ve been approved or not. If you are approved, then you can’t be evicted for a year.

You can apply here, and read our tips for applying here. And make sure you keep any communication from the state about your application to use as a defense in court if you need to.

New York’s Office of Court Administration is also now requiring landlords to notify the courts if their tenant applied for ERAP, if the landlord applied on the tenant’s behalf or if the tenant was approved for the program. There’s a special form that landlords need to fill out here.

Tenant Safe Harbor Act — If you can prove in court that you experienced a financial hardship between March 7, 2020, and June 24, 2021, you can be protected from an eviction for nonpayment of rent because of a state law called the Tenant Safe Harbor Act. However, under this law a landlord can still request, and a judge can still demand a money judgment for the rent due, and it doesn’t cover tenants who’ve overstayed their lease.

“The Delta variant doesn’t care if you have a nonpayment or a holdover. We don’t want people out of their homes, period, at this point,” Girón said.

The Right to Counsel Coalition is suggesting that tenants talk with an attorney before signing the CDC declaration form to understand the legal obligations. You can call Housing Court Answers at 212-962-4795 or call 311 and ask for the tenant helpline to get connected with an attorney who can help you.

Who is most at risk of losing their homes after the Supreme Court decision?

Tenants who received a petition for eviction sometime after June 2020 but who didn’t answer the petition in Housing Court could receive what’s called a default judgment — and those can result in an eviction warrant pretty quickly. After the Supreme Court decision, courts no longer need to hold an extra hearing before moving forward with a default, according to a memorandum from New York Chief Administrative Judge Lawrence Marks.

A tenant could get a warrant for eviction without ever appearing in court if they didn’t answer their petition within the allotted time and their case defaults. At one point last fall, more than 40,000 households fell into this category and risked defaulting. You can read more about default judgments here.

If you think this could be you, you can call the Housing Court Answers Hotline at 212-962-4795. Or, you can call 311 and ask for the tenant helpline to get advice from a lawyer.

What should tenants know and do?

Answer your petitions, and respond to any notices from the court. If you thought that after you filled out a hardship declaration that you were protected against eviction, that’s not the case anymore.

Your protection isn’t automatic. If you have a case filed against you, you’ll have to prove to a judge that you qualify for one of the remaining protections. That means you may have to go to court or appear virtually.

If you get a notification that your landlord filed a petition for eviction, you have to respond within 10 days. If you don’t, your case could be defaulted and you could have an eviction warrant filed against you before you ever go to court.

Lee from Brooklyn Legal Services said: “Don’t ignore any notices that you may get from the courthouse or the landlord. A lot of wrong information is running around, and people might not understand that they need to appear, but they do.”

You can answer a petition in person at your borough’s Housing Court, or by calling them. You can find the addresses and phone numbers here.

If you get a notice about a warrant for eviction, you can call a free attorney to see what next steps to take.

Remember: You may have free access to a free housing lawyer

In the spring, New York City’s Right to Counsel program expanded to every neighborhood. That means that if your income qualifies, you can be represented by an attorney in Housing Court for free.

Girón from Crown Heights Tenant Union said: “With patchwork of protections in place, an attorney can do a lot of things to buy you time,” Girón said.

You can call the Housing Court Answers Hotline at 212-962-4795. Or you can call 311 and ask for the tenant helpline. You also can call any of the organizations on this list to get connected to an attorney.

Even if your income doesn’t qualify, it may be worth it to call and talk to an attorney.

Is this set all set in stone?

If we’ve learned anything these past 18 months, it’s that nothing is set in stone.

New York’s tenants’ rights movement, led by organizers from the statewide network Housing Justice for All, is urging the state Legislature to come back into session to adjust and extend the eviction moratorium law.Also on the agenda: improving the rent relief program so more tenants and landlords can get the assistance they need.

Lawmakers were going to come back into session to weigh impeaching Andrew Cuomo. But since the state Assembly dropped the impeachment investigation after Cuomo announced his resignation as governor, it’s not guaranteed legislators they’ll come back into session to address the rent relief and eviction crisis.

This will be one of the first major issues Hochul will need to figure out.

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