Landlords have been unable to evict non-paying tenants since the start of the COVID-19 pandemic in March. Well, New York’s Chief Administrative Judge, the Hon. Lawrence Marks, recently issued a new administrative order lifting the eviction moratorium.
Well, it depends.
Even though Judge Marks’ new order technically ended the moratorium imposed by his prior orders, it still isn’t clear when, and under what circumstances landlords may evict non-paying tenants. (Of course not; we wouldn’t want clarity on something as trivial as when property owners can take necessary steps to protect their investments or when people can be forced from their homes). Wits as diverse as the noted French realist novelist, Gustave Flaubert, have observed that the devil is often in the details. The various federal and state eviction enactments will force landlords and tenants alike to stagger through the minutiae of a satanic legal swamp.
On its face, Judge Marks’ new administrative order allows evictions for both non-paying and holding over (i.e., essentially, any eviction based on something other than a failure to pay rent). However, whether a court will actually remove a non-payer turns on the interplay of several of legal authorities. These are: the federal Center for Disease Control’s recent Agency Order (imposing a halt on residential evictions through the end of the year); the New York State Safe Harbor Act (prohibiting the eviction of any tenant who suffered “financial hardship” starting on March 7, 2020); and Governor Cuomo’s Executive Order No. 202.66 (extending the Act’s protections to January 1, 2021, despite language in the Act indicating that those protections might end earlier).
How courts will apply these legal authorities is subject to varying interpretations. (“Varying interpretations” is lawyer-speak for, this stuff isn’t clear.) How particular evictions will play out will largely depend on the facts and circumstances of each tenant. As such, application of the Act, the CDC Agency Order and the Executive Order will likely vary from situation-to-situation, and court-to-court.
With that caveat, here is our best understanding of how this may play out:
Landlords must follow all of the pre-COVID procedures for preparing and serving 5-day rent notices, along with 14-day notices to pay rent or quit.
The CDC Order doesn’t expressly require landlords to tell tenants that they may be protected under the Order, or to give them copies of the CDC Declaration form, which tenants must fill out and give to their landlords to assert the Order’s protection.
If a tenant presents a landlord with a completed copy of the CDC Declaration form, the landlord may determine whether it believes the Agency Order applies to the tenant, including whether: (a) the tenant is a “covered person” under the Order; and (b) the eviction is based on grounds, other than non-payment, under which the Order permits an eviction (e.g., engaging in criminal activity, threatening public health, damaging property, etc.)
If the landlord determines the Agency Order applies, the tenant should not be evicted. It is unclear whether courts will apply the Agency Order to: (a) prohibit starting new evictions in the first place; (b) allow landlords to start new evictions, but prohibit issuing warrants of evictions, regardless of whether the judge stays the warrant; and/or (c) allow the issuance of new warrants, but prohibiting enforcement while the Agency Order is in effect. We believe that last possibility is probably the way courts will read the Order. If so, this will allow landlords to start new evictions which may be heard by judges to determine whether a tenant qualifies for protection under the Order.
Although not required by the CDC Order, landlords should consider attaching a copy a tenant’s CDC Declaration Form to their eviction petition and including a statement in their petition explaining why the landlord doesn’t think the tenant is covered. This will alert the judge that there is a disagreement which must be resolved regarding whether the tenant is protected from eviction.
Landlords outside New York City filing evictions must include as an exhibit the form “Notice to Respondent Tenant” set forth as Exhibit “1b” to one of Judge Marks’ earlier administrative orders (that is, No. AO/160A/20). This Notice advises tenants to contact their attorney, and or directs them to online information, if they don’t have an attorney. There is a different form Notice which must be used by New York City landlords.
If the judge determines that the CDC’s Order applies to the tenant, it is likely the eviction will be dismissed -- although it is possible that the judge may suspend further action on the case until the Order expires on December 31st. (Happy New Year.)
If the judge agrees that the CDC’s Order isn’t applicable, the judge will likely then determine whether the tenant has suffered “financial hardship during the COVID-19 covered period” under the Safe Harbor Act. If so, eviction will be prohibited under the Act.
The Act lists some of the factors which judges may consider in deciding if a tenant has suffered financial hardship. The Act also defines the COVID-19 covered period as starting on March 7, 2020 and continuing while any of the Governor’s rapidly expanding herd of Executive Orders closing or restricting businesses, places of accommodation and gatherings remain in effect in the county in which the tenant lives.
For now, we believe that if a judge determines a tenant suffered financial hardship after March 7, 2020, the judge will likely apply the Act to prevent the tenant’s eviction until January 1, 2021 at the soonest (assuming that the rabbit-like reproduction of Executive Orders doesn’t include additional extensions of this date). In such a case, the Judge will probably dismiss or suspend any non-payment eviction.
In Executive Order No. 202.66 the Governor modified the Safe Harbor Act extending the prohibition against evicting tenants who suffered financial hardship, to January 1, 2021. It is unclear (have you noticed a trend yet) whether this Executive Order sets January 1, 2021 as the end date for the COVID-19 covered period, or means that regardless of the possible earlier lifting of closure or gathering restrictions, no warrant may be executed or enforced until the first of the year (assuming the judge determined the tenant suffered financial hardship under the Act). Either way, we will not be surprised by the arrival of further fluffy little Executive Orders extending the end-date of the COVID-19 covered period and, therefore, protection under the Safe Harbor Act.
There is no way to be sure of how courts will implement the overlapping, and potentially contradictory, Safe Harbor Act, the CDC Agency Order and the various Administrative and Executive Orders. It is safe to assume that however done, the resulting tortuous process would make Monsieur Flaubert throw up his arms and exclaim, “Mon Dieu! C'est un tas diabolique de merde de lapin légaliste!”
This article is intended to be used for informational purposes only. Legal advice is neither implied by the author nor should be inferred by the reader. If you have specific legal questions, you should consult with your attorney.
Jeffrey Sculley is an attorney and counselor at law focusing his practice on representing landlords; providing backroom human resource and employment support to businesses and not-for-profits; representing clients in appealing adverse trial-court and administrative decisions; and representing clients in all types of administrative, regulatory and compliance matters, before governmental agencies and administrative hearing officers and law judges.