By Dov Treiman. Partner at Adam Leitman Bailey, P.C.
On December 28, 2020, the Governor signed into law the COVID-19 Emergency Eviction and Foreclosure Prevention Act of 2020 (C19EPA), made effective immediately, and designed to do exactly what the title says: prevent evictions and foreclosures. In doing so, it provides no relief to landlords and mortgagees, no way to force the property to be income producing, no financial grants from the government, but only gives them additional hurdles to overcome in their proceedings. This article is limited to the evictionaspect.
Many are the grounds and bases for eviction in New York State: most commonly nonpayment of rent and violation of lease provisions and rent regulatory provisions. However, the statute is so designed as to prevent all residential eviction proceedings except on grounds of nuisance. The C19EPA has no effect on commercial eviction proceedings. However, among the landlord-tenant proceedings, whose evictions are prevented under the C19EPA, are eviction proceedings against former building superintendents, mortgagors in foreclosure, contract vendors on completed sales, contract vendees on aborted sales, squatters, judgment debtors, unit owners in condos, shareholders in coops, etc. The nature of the tenant does not matter. What matters is the nature of the occupancy. If it is residential in nature, the act affects it and probably prevents effective action for the Owner to recover the premises prior to May 1, 2021. There is no reason to believe the Legislature will not extend the act even further.
If, for example, a building superintendent has been fired during the pandemic, there is no way to evict that person to free up the apartment for a new superintendent without going through the delays C19EPA imposes (although one could interpret C19EPA as to carve out an exception if the superintendent is sabotaging the building).
All proceedings, both new and pending, are stayed for at least sixty days, until February 26, 2021 for pending proceedings, sixty days from filing for all cases filed in January, 2021. The stays do not apply to nuisance cases. Even in nuisance cases, however, before allowing an eviction, the court must hold a hearing to determine if the occupant is still persisting in the improper conduct.
Prior to issuing or enforcing a default judgment, there must be an additional hearing to determine the resident’s Covid situation. Default judgments from prior to the passage of the act are vacated upon request, not needing the form of an order to show cause and therefore requiring neither a reasonable excuse for defaulting, nor a valid defense to the proceeding.
The centerpiece of the C19EPA is the Hardship Declaration. C19EPA requires both the Owner and the courts to furnish residents with blank form Hardship Declarations.
Under the terms of C19EPA, residents can use the Hardship Declaration to describe themselves as victims of COVID-19 caused hardship if due to Covid: they cannot pay funds required under a lease (typically rent) due to loss of income; have increased expenses in essential work or health care; have difficulty earning a living because of child/disabled/elderly care; have difficulty moving; or have significantly reduced income or increased expenses.
Alternatively, Covid hardship includes people for whom moving would pose a substantial health risk.
There is no requirement for verification of any of these conditions, nor provision of supporting documentation. While the form sets as a qualifying condition, “significant loss of household income,” such definition allows qualification for hardship treatment to a billionaire who is reduced to an income of mere tens of millions and indeed gives no definition to “significant” at all.
C19EPA requires owners to attach blank Hardship Declaration Forms (in English and the resident’s principal language) to all preliminary notices to eviction proceedings.
If a tenant files a Hardship Declaration with an Owner, the Owner cannot bring an eviction proceeding before May 1, 2021, regardless of the merits or validity of the Hardship Declaration.
The act requires the Owner to know (or guess) the primary language of the occupant and compels the landlord to accord the occupant an opportunity to fill out in English or this non-English language the Hardship Declaration, regardless of the occupant’s actual fluency in English. The State has undertaken providing the Declaration in the eight languages most commonly used in New York City but leaves it to owners to procure translations in more obscure languages. While the form warns the occupant that the making of false statements in the form is against the law, C19EPA does not set forth any laws that the occupant could be breaking by making a false statement.
Initiating Eviction Proceedings
Neither summary proceedings in Civil Court nor ejectment actions in Supreme Court can be commenced without including with the filings an affidavit setting forth the manner of service upon the resident of the blank Hardship Declaration and a sworn statement that the Owner had not received a filled out Hardship Declaration from the resident.
Effect of C19EPA
C19EPA undoubtedly makes prosecuting any kind of proceeding in Civil Court for eviction completely impractical until at least May 1, 2021. While the C19EPA complicates ejectment actions in Supreme Court, it is not as crippling in Supreme Court as it is in Civil Court.
For Civil Court summary proceedings, a landlord has to demonstrate under C19EPA “due diligence” to effect service of the papers by placing them in the hand of the actual respondent. Unlike pre-Covid law, giving the papers in hand to someone else who lives in the apartment is not good enough until the process server has made at least three attempts to put the papers in the actual tenant’s hands.
C19EPA speaks broadly of “staying” proceedings, but that is more meaningful in Civil Court where eviction proceedings are normally always on the calendar. There, a “stay” means that the case is re-calendared to May 1, 2021 or some date thereafter the court sets. Recent experience, even without C19EPA, tells us that these Civil Court proceedings will not likely see any action at all prior to Labor Day and indeed unlikely prior to New Years.
Ejectment proceedings, however, are different. They spend most of the time off the court’s calendars. There, if a “stay” even means staying all pieces of the proceedings, such as discovery proceedings like depositions, and motions, like motions for summary judgment, at least the stay lifts on May 1, 2021 and no later. However, we have no real clarity on how the courts will interpret staying ejectment actions. Even prior to C19EPA, the Supreme Court has been imposing an unusually large number of unasked for adjournments in the cases before it.
Interpreting the Law
The C19EPA is due to expire prior to any appellate court having a meaningful opportunity to interpret the law or its effects. (Rarely do cases make it to the appellate courts within six months from their start and this statute expires after four months.) It gives its protections to all lawful occupants of housing accommodations, big or small, regulated or unregulated, in and outside of New York City, open to nearly any interpretation a judge chooses to put on it.
The C19EPA was designed to shut down eviction proceedings through the period when New Yorkers are most likely to be receiving the first two waves of vaccines. While it does not abolish these proceedings altogether, it adds so many layers of difficulty to them as to make them extremely impractical, at least, unless prosecuted in Supreme Court.