The New York State eviction moratorium (“Eviction Moratorium”) is set to expire on January 15, 2022 and all indications are that Governor Hochul will not extend it. As a result of the expiration of the Eviction Moratorium, it is anticipated that effective January 16, 2022¹:
- All residential and commercial eviction matters that were stayed from being commenced due to an owner’s receipt of a signed hardship declaration from a tenant or lawful occupant may now be commenced;
- All pending/filed commercial eviction cases that were stayed from proceeding due to a filed hardship declaration may now proceed in the normal course;
- All pending residential eviction cases that were filed on or after March 17, 2020²: and were stayed from proceeding due to a filed hardship declaration may now proceed in the normal course. As a result, petitioners may now file for default judgments and warrants of eviction based upon a respondent’s failure to answer a nonpayment petition without the need to make a motion, as was required under the Eviction Moratorium;
- Owners may execute on warrants of eviction that were issued on or after March 17, 2020³, unless subject to further stay by order of the Court; and
- Owners are no longer required to (i) send hardship declarations, (ii) attach hardship declarations to notices prior to commencing eviction proceedings, or (iii) submit an affidavit attesting to service of a hardship declaration with the eviction petition filing.
In the aftermath of the Eviction Moratorium, owners should be aware that the Tenant Safe Harbor Act (“TSHA”) law remains in effect for all residential eviction proceedings. It is also anticipated that Governor Hochul may further extend the coverage period set forth in the TSHA until April 15, 2022. Notably, the TSHA does not further stay cases where hardship declarations were filed. Under the TSHA, if a tenant or lawful occupant raises “COVID-19 Financial Hardship”⁴ as a defense in a residential eviction proceeding, and the Court determines that COVID-19 Financial Hardship has been demonstrated, then for the rent that has accrued during the “COVID-19 Covered Period” of March 7, 2020 until January 15, 2022 (which period would be further extended until April 15, 2022 if Governor Hochul signs the extension bill into law), an owner would not be able to evict a tenant for failing to pay rent from March 7, 2020 through April 15, 2022, but could still recover a non-possessory money judgment. The tenant has the burden of proof with regard to this defense.
In addition, owners should also be mindful that while the formal Eviction Moratorium is set to expire on January 15, 2022, there will likely still be a “soft” eviction moratorium given the anticipated influx of new eviction proceedings filed in the coming weeks, coupled with all of the pending eviction cases that are now able to proceed without stay, an already backlogged court docket, and COVID-19 continuing to disrupt normal in-person Court operations and staffing. As such, it is also likely that in the following weeks the Office of Court Administration will issue new administrative orders and/or court directives setting forth additional guidelines for all involved parties to navigate the post-Eviction Moratorium period.
Should any owner of a residential property, landlord, or other person with a legal right to pursue eviction or possessory action wish to pursue eviction and/or a money judgment for outstanding rental arrears accrued during COVID-19, it is recommended that you immediately contact BBG for advice and counsel to discuss.
¹ Subject to any additional stays imposed by (i) a pending COVID-19 Emergency Rent Relief Program (ERAP) application or (ii) an owner’s acceptance of rent relief from ERAP; and/or additional requirements that may be imposed by subsequent administrative order(s) and/or court directive(s) of the Office of Court Administration upon the expiration of the Eviction Moratorium.
² Residential eviction proceedings filed before March 17, 2020 remain subject to the following additional requirements: (i) prior to conducting any further proceedings, the Court must initiate a status or settlement conference; and (ii) to execute on warrants of eviction based on judgments of possession that were issued before March 17, 2020, petitioners are required to obtain leave of court by motion on notice to the respondent, which motion shall satisfy the status or settlement conference requirement.
³ A petitioner seeking to enforce a warrant of eviction that was issued before March 17, 2020 must seek leave of court by motion on notice to respondent.
⁴ In determining whether a residential tenant or lawful occupant has suffered “COVID-19 Financial Hardship,” the Court shall consider the following four factors, among other relevant factors:
1. the tenant’s or lawful occupant’s income prior to the COVID-19 Covered Period;
2. the tenant’s or lawful occupant’s income during the COVID-19 Covered Period;
3. the tenant’s or lawful occupant’s liquid assets; and
4. the tenant’s or lawful occupant’s eligibility for and receipt of cash assistance, supplemental nutrition assistance program, supplemental security income, the New York State disability program, the home energy assistance program, unemployment insurance or benefits under state or federal law, or the emergency rental assistance program.