EXCEPTIONS TO THE EVICTION MORATORIUM

Eviction

By: Akanksha A Panicker

Virtually all eviction proceedings were suspended for sixty days after the state legislature enacted the Emergency Eviction Act at the end of last year. On Friday, February 26th, the delay came to an end. This means that unless a tenant submits a hardship declaration form to either the court or the landlord, currently underway eviction cases will resume, and new cases can be filed.

This indicates that any tenants facing eviction who may not have filed a hardship declaration could face legal action, as well as landlords being entitled to file new cases against tenants who have omitted to file a declaration. Consequently, only tenants who complete the hardship declaration form will have their moratorium extended until May 1st.

 Just about all tenants have been safeguarded from eviction since the end of December, seeing as cases have been paused. However, until February 26th, the moratorium security would only extend to tenants who have submitted a hardship declaration. The form itself is permitted to be filled out by May 1st to pause the case.  This form may also be presented to the marshal in charge of the eviction itself. Qualifiers to avail said the pause would need the individual to have experienced some financial hardship because of the pandemic or to prove that moving would pose a health risk.

[1.0] ABOUT THE COVID-19 EMERGENCY EVICTION AND FORECLOSURE PREVENTION ACT 

On December 28th, Gov. Andrew Cuomo signed the COVID-19 Emergency Eviction and Foreclosure Prevention Act of 2020 (the ‘Act’) into law. The legislation seeks to protect New York State citizens adversely affected by the COVID-19 pandemic.

It was set into motion to prevent tenants’ evictions if they had lost income or accrued additional and increased expenses during the COVID-19 pandemic or if moving from their home would pose a hardship during the pandemic.

If the tenant signed and delivered the Hardship Declaration, they cannot be evicted from their primary residence under a pending case, and the landlord may not file a new case to evict them from their primary residence until at least May 1st, 2021. However, it must also be remembered that a landlord can still evict if [A.] the expiring lease itself is not renewed; [B.] the backlog for rent stretches before March of 2020 and six months’ rent or more was due on or after March 1st, 2020; [C.] The landlord wants to move into the tenant dwelling as their primary residence or if the tenant did some act that was a serious nuisance or violated their lease in a manner apart from falling behind in rent. 

The COVID-19 Emergency Eviction and Foreclosure Prevention Act expires on May 1st, 2021, but key protections under the New York State Tenant Safe Harbour Act may continue even after that date. Eviction cases pending as of December 28th in New York City Housing Court were thus suspended until February 26th, 2021. Eviction cases commenced from December 29th, 2020 through January 27th, 2021 had also been suspended for at least sixty days.

[1.2] EXCEPTIONS TO THE EMERGENCY EVICTION AND FORECLOSURE PREVENTION ACT

The legislation requires that landlords attach a blank copy of the hardship declaration form when they demand rent or file a petition for eviction. If a said copy of the form is not provided, it is necessary to record all the documents received. Thus, the moratorium also reinforces the burden of proof on the landlord: the courts assume that tenants are telling the truth on the declaration form and enforce said form on the tenant under ‘penalty of law,’ inviting legal consequences for misrepresentation. This renders the burden on the landlord to show the court that a tenant does not qualify rather than it being on the tenant to prove in court that they qualify for protection,

The definition of hardship in this document also spans a wider criterion than federal moratoria. The eligibility criteria go beyond lost income and account for challenges like added childcare expenses.

The new law also puts residential foreclosure proceedings on hold. It prevents new ones from being filed until February 26th, with the potential to put them off until May 1st if the owner fills out a hardship declaration form. The measure covers both mortgage and tax foreclosures and tax lien sales for past tax debt. The only exception is for vacant or abandoned property. The protection for homeowners encompasses a wide variety of hardships, including if a tenant has lost income and can’t pay rent.

Per custom, the major exception for eviction cases stems from the tenant causing a nuisance if said tenant engages in behavior infringing on other tenants’ use or enjoyment or creating a safety hazard. This means if a tenant is engaging in violence or illegal activity like drug dealing, they are always doing so under the continuing threat of eviction. Other behaviors traditionally considered a nuisance, like making illegal alterations to an apartment, don’t apply.

[2.0] WHERE  DOES THE CDC MORATORIUM FACTOR IN

The Centres for Disease Control and Prevention (CDC) released a directive barring landlords from evicting such tenants worldwide. The eviction moratorium was scheduled to expire on December 31st, 2020, but the CDC agreed to prolong it until March 31st, 2021. Tenants who fulfill the order’s conditions are liable for eviction defense. Qualified renters do not immediately gain immunity from the ban; instead, they are required to sign a declaration of eligibility for the ban and provide it to their landlord.

After the CDC’s eviction ban took effect on September 4th, 2020, property owners and tenants have been perplexed by the order’s specifics and the necessary tenant declaration.  Judges also misinterpreted the CDC’s order in some of the worst situations, culminating in the unjust removal of tenants liable for security. Consequently, the CDC and other federal agencies released a guidance document on October 9th, 2020, which addressed several of the ban’s most common queries. Although the manual clarifies certain Order elements, it also poses many concerns and avoids more specifics on how the Order would be applied to specific states and courts.

The CDC’s order requires tenants to sign the declaration under penalty of perjury. Consequently, notarization is not always necessary since the declaration meets the criterion under penalty of perjury.

A further aspect of the CDC order is that tenants do not have to provide their landlords with any documentation or proof when they deliver the signed declaration. However, if court action is put forth, a proof will likely be necessitated, especially if the court has to rule whether the declaration holds. While a tenant does not need to file for unemployment to qualify for protection, the eviction order applies to anyone who expects to earn as an individual no more than USD 99,000 in annual income for the calendar year 2021. If tenants are filing a joint income tax return, the ban applies to those who expect to earn no more than USD198,000 in annual income for 2021. This means that people who are still employed can take advantage of the ban, so long as their income does not exceed these limits.

Another requirement is that protection would have needed tenants to have ‘used best efforts to obtain all available government assistance for rent or housing.’ This means that the tenant is required to have exhausted viable means of financial assistance from government sources to avail of this benefit. However, private sources like non-profits are not required. ‘Available government assistance’ means any governmental rental or housing payment benefits available to the individual or any household member. This best efforts requirement has evolved as a point of contention between landlords and tenants, especially when it provides that tenants must explore benefits available to the individual and any household member.

[2.1] REQUIREMENTS FOR CDC PROTECTION TO TAKE EFFECT

Tenants must assert within their declaration that they are undertaking their best efforts to make prompt payment arrangements that are as similar to the maximum payment as the individual’s circumstances can warrant, taking into consideration other nondiscretionary expenditures. It must be noted that the CDC’s order does not differentiate between written and oral leases (oral leases are valid and enforceable for up to one year in most states). In fact, the order explicitly refers to ‘residents’ as well as tenants.

The concept of ‘best efforts’  assumes that individual circumstances are causing paying rent impossible for the tenant. The tenant must make partial rent payments if their conditions afford it without jeopardizing their ability to provide for other needs, including food, medication, and job transportation. Hardship would mean that eviction would likely render the individual homeless—or force the individual to move into and live in close quarters in a new congregate or shared living setting—because the individual has no other available housing options.

The landlord is also entitled to the entire rent after the moratorium expires. When the eviction moratorium expires (March 31st, 2021), the landlord would be free to evict the tenant and prosecute them for the maximum sum owing, even though they have been paying partial payments.

Landlords who violate the order might also be subject to fines and jail time. The CDC’s order states that landlords, owners of residential properties, or other people with a legal right to pursue an eviction (such as a corporation) ‘shall not evict any covered person from any residential property in any jurisdiction to which this Order applies during the effective period of the Order.’ The order defines an ‘eviction’ as ‘any action by a landlord, owner of a residential property, or another person with a legal right to pursue eviction or a possessory action, to remove or cause the removal of a covered person from a residential property.’ The order leaves the determination of whether a landlord has violated the order to the courts.

The CDC’s order states that landlords can still evict tenants if they [A.] engage in criminal activity while on the premises; [B.] threaten the health and safety of other residents or pose an immediate and significant risk of property damage; [C.] violate any applicable building code, health ordinance, or similar regulation relating to health and safety, and [D.] violate any other contractual obligation besides non-payment of rent or similar housing-related payment, including non-payment or late payment of fees, penalties, or interest.

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Sources

1. The Centres for Disease Control and Prevention moratorium that was originally scheduled to expire on Jan. 31

2. The New York State Legislature passed a bill signed by Governor Andrew Cuomo, which puts into effect two eviction moratoriums. The first puts a stay on any eviction proceedings commenced on or before March 7th, 2020, for 60 days, while the second stays all eviction matters commenced between December 28th, 2020, and January 27th, 2021, for 60 days from filing. The legislation also prevents courts from issuing default judgments authorizing eviction without first holding a hearing.

Also, the bill protects some small landlords from foreclosure and provides relief in the form of tax exemptions to older homeowners or those with disabilities.

3. 28 U.S. Code § 1746 – Unsworn declarations under penalty of perjury 

Wherever, under any law of the United States or any rule, regulation, order, or requirement made under the law, any matter is required or permitted to be supported, evidenced, established, or proved by the sworn declaration, verification, certificate, statement, oath, or affidavit, in writing of the person making the same (other than a deposition, or an oath of office, or an oath required to be taken before a specified official other than a notary public), such matter may, with like force and effect, be supported, evidenced, established, or proved by the unsworn declaration, certificate, verification, or statement, in writing of such person which is subscribed by him, as true under penalty of perjury, and dated, in substantially the following form: 

(1) If executed without the United States: ‘I declare (or certify, verify, or state) under penalty of perjury under the laws of the United States of America that the foregoing is true and correct. Executed on (date).(Signature)’.

(2) If executed within the United States, its territories, possessions, or commonwealths: ‘I declare (or certify, verify, or state) under penalty of perjury that the foregoing is true and correct. Executed on (date).(Signature)’.

4. However, this does not mean that the Declaration works in a blanket manner. The CDC’s agency order states: ‘Each adult listed on the lease, rental agreement, or housing contract should likewise complete and provide a declaration.’ (Federal Register Vol. 85, No. 173, p. 55292.).

5.Indicated by describing the order ‘that tenants, lessees, or residents of residential properties who are covered … may use.’

6. Said rent is inclusive of any late payments or costs the individual agreed to under the contract or leasing agreement

7. Individual landlords who violate the order could be subject to:

  1. a fine of no more than $100,000 if the violation does not result in death (or no more than $250,000 if the violation results in death),
  2. one year in jail, or both.

An organization (such as a corporation, LLC, or real estate investment trust, or REIT) that violates the order could be subject to:

  1. a fine of no more than $200,000 per event if the violation does not result in death, or
  2. $500,000 per event if the violation results in death.

8. Federal Register Vol. 85, No. 173, p. 55294.

9. The CDC specifically notes that tenants who have COVID-19 and take reasonable precautions not to spread the disease do not pose a health or safety risk to other tenants

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