New York Extends Eviction Moratorium to early 2022, Offering New Chance for Landlords to Push Back

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

State lawmakers voted Wednesday to extend a COVID-19 emergency eviction moratorium until Jan. 15, in a rare off-season meeting of the Senate and Assembly.

Members descended onto the state Capitol in a special session called by newly instated Gov. Kathy Hochul to vote on the eviction pause and other pressing business, the first time they had convened in full force since the pandemic began in March 2020.

In addition to extending the eviction moratorium until mid-January, legislators moved to add an additional $300 million in federal funds to the state’s troubled rental relief program, tweaked New York’s Open Meetings Law to allow local governments to hold meetings virtually, and approved appointments to a board overseeing marijuana legalization.

“We are trying to keep people in their homes,” said Senate Majority Leader Andrea Stewart-Cousins. “We understand the pandemic is still very much part of what we are living with.”

The Senate passed the anti-eviction measure 38-19, followed by the Assembly, 80-60.

The new anti-eviction law became urgent business following a pair of August rulings by the U.S. Supreme Court nullifying federal and New York eviction moratoriums, just before the state law expired Tuesday.  In New York’s high court case, brought by state property owners, the justices found that landlords were denied an opportunity to challenge tenants’ claims of economic hardship.

The new law, like the old one, enables tenants to head off eviction actions simply by filling out a form stating that they’ve lost income due to the pandemic or could face a health risk from moving. But now, landlords will be able to go to court to seek a review of a tenant’s claims — giving judges broad discretion over whether to move an eviction case forward.

Hochul’s first legislative venture as governor still requires tenants to fill out a so-called hardship declaration, but it will now offer landlords a chance to challenge tenants’ claims in court.

The stakes for tenants and landlords alike have escalated with the dysfunctional roll-out of a $2.7 billion emergency rental relief program, known as ERAP, that has failed to meaningfully distribute money to ailing renters and landlords, with just a fraction of the funds distributed so far.

“Between an anti-tenant Supreme Court decision and an emergency rent relief program badly administered by the previous governor, our eviction moratorium needed to be extended to give more time for tenants and landlords alike to be made whole,” said State Sen. Michael Gianaris (D-Queens), the deputy majority leader.

Recurring Legal Threats

State lawmakers expressed confidence that the changes would pass legal muster and conform to the Supreme Court’s ruling. But a landlord group that was among the plaintiffs that successfully contested the New York moratorium said in a statement that it’s moving forward with a legal challenge.

“This is blatant contempt of SCOTUS’ order. The Legislature can’t act as the Judiciary. Albany lawmakers can’t decide which part of the Supreme Court order they follow and which part they ignore, or which parts they determine are valid and which they can disregard” said Joseph Strasburg, president of the Rent Stabilization Association.

“The Supreme Court recognized the importance of landlords’ property and due process rights, and ruled that the harm to landlords is so great that they must be protected from the law,” Strasburg added.

In a news conference with reporters Wednesday evening, Stewart-Cousins said lawmakers “took pains to address the area that was struck down by the Supreme Court in terms of making sure that landlords have the opportunity to at least have their say.”

The main concern the Supreme Court had with New York’s previous eviction moratorium was that it didn’t give landlords a chance to counter their tenants’ claims of hardship, essentially halting almost all eviction cases based solely on a tenant filling out a hardship declaration form.

Under the new law, a landlord would have to file a motion in court for either a pending eviction case or a new case challenging their tenant’s hardship claim. Then, both sides would have to appear for a hearing where a judge would determine if the tenant is experiencing financial difficulties.

If the court finds that the tenant is experiencing hardship, the case will be paused and the judge will direct both the tenant and landlord to the state’s rent relief program. If the court finds that the tenant is not experiencing a hardship, the eviction case will move forward.

“It’s not as strong as the one that we had,” said Cea Weaver, an organizer with the statewide tenant coalition Housing Justice for All. “But I think that this bill is so much better than I thought we were going to get, so I’m pretty relieved.”

Weaver noted that tenants are still presumed to be eligible for protection from eviction, and landlords need to take action in court to assert otherwise.

Landlords will also be able to start eviction proceedings if a tenant is a “nuisance” or “intentionally causes significant damage” to a property, under the new law.

Slow Relief

Republicans, who are in the minority in both houses, argued that extending the eviction moratorium is “kicking the can down the road,” said minority leader State Sen. Rob Ortt, (R-North Tonawanda).

“No one is going to apply to ERAP funds as long as there is no reason. They can stay in their apartments rent free, as is,” Ortt said at a news conference, arguing that evictions provide an “incentive” for renters to apply for financial assistance.

As part of the new eviction moratorium, lawmakers also approved extending the window of protection under a pandemic-prompted law, the Tenant Safe Harbor Act. That measure prevents eviction for nonpayment of rent if a tenant can show loss of income between March 2020 and June 2021. That window extends to January 2022 too.

As with the prior eviction moratorium, protections will remain in place for homeowners and small businesses too, with mortgage and tax foreclosures, lien sales and small business commercial evictions all on hold until the new year.

Hochul, who became governor last week following the resignation of longtime governor Andrew Cuomo, inherited the problematic ERAP rent relief program from her predecessor, vowing on day one to expedite the distribution of rent relief funds and to iron out ongoing kinks in the application process. Already she’s ordered the state Office of Temporary and Disability Assistance to spend an additional $1 million in marketing and outreach efforts to raise awareness for the program.

Jay Martin, the executive director of the Community Housing Improvement Program, a group that represents mostly small and mid-sized landlords, stressed the importance of getting the relief funding out.

The new law “simply does the bare minimum to alter the existing law in an attempt to comply with the Supreme Court’s recent ruling,” Martin said in a statement.

“Starting today and continuing for the next four and a half months, the government needs to be singularly focused on reaching every single tenant in arrears and getting them to apply for ERAP. Only then will we know the size of the problem, which we estimate to be as much as twice the amount of money currently allocated,” he added.

Just over one-quarter of the 176,000 households that applied for rent relief have been approved by the state as of last week, with just over $200 million of payments going out to ailing renters. On top of that, an additional $605 million has been approved but not paid out yet, bringing the total to just over 20% of the $2.7 billion slotted for the program.

By the end of the month, New York needs to approve at least 25% of the funds or risk returning the unused funds to the federal government.

“All over the nation choices like this one are being made, choices that come down to lives versus profits,” State Sen. Jabari Brisport (D-Brooklyn) said during the vote. “Following a year of record deaths and of record profits for some, this is a moment in history for us to stand up and say ‘no more.’”

THE CITY is an independent, nonprofit news outlet dedicated to hard-hitting reporting that serves the people of New York.