By Emma Whitford

Law360 (January 8, 2021, 12:11 PM EST ) After New York's Legislature met for a rare year-end session to pass the COVID-19 Emergency Eviction and Foreclosure Prevention Act of 2020, we talked to experts to break down the new pandemic-era protections, stronger than anything renters have seen for months.

Tenant advocates are claiming victory and their landlord counterparts are throwing up their hands as courts across the state begin to implement the new law, which halts most eviction cases until at least late February.

While the legislation raises some implementation questions and does not erase rent debt or direct funding to landlords, tenant groups feel assured that most vulnerable renters will remain housed during the cold winter months and amid rising infection rates.

"It's not perfect, but we definitely feel a sense of relief," said Rebecca Garrard, housing campaign manager for Citizen Action of New York.

Landlord attorneys, meanwhile, accused legislators of prolonging their clients' hardship for political gain.

"For the group that we represent, this is overwhelmingly disappointing and scary," said Jaime Cain, partner with Boylan Code LLP in Rochester, and co-leader of the statewide landlord trade group Under One Roof. "It asks the landlords who are small-business owners to front this bill for what will now be 12 to 18 months."

Attesting Hardship

The eviction prevention act is stronger than a thicket of eviction defenses implemented by Gov. Andrew Cuomo and state and federal lawmakers that were available to certain New York tenants after a blanket hold on evictions lifted in early October.

Under the law, most eviction cases are on hold for 60 days, through Feb. 26. Tenants who fill out a so-called "hardship declaration" form in the interim, attesting that they are struggling financially or that moving would pose a serious health risk, can expect to have their cases stayed for a longer period, until May 1.

The state's Office of Court Administration "is preparing a statewide mass mailing of hardship declarations to all tenants sued in eviction cases," spokesperson Lucian Chalfen told Law360 this week.

Especially outside major cities, advocates said, the pressure is on to quickly mount a public education campaign. "It's that rapid dissemination of information to marshals, sheriffs and courts in smaller jurisdictions that has been more challenging," said Garrard of Citizen Action, who lives in Albany.

Organizer Cea Weaver of the tenant group Housing Justice for All said that because tenants must take steps to be protected under the bill until the spring, her group is working quickly to make completion and submission of the hardship form as easy as possible, including for those who have not yet been sued.

The Office of Court Administration shot down an early request from organizers to create a centralized email address for form submission, telling Law360 that "we do not work that way," so Housing Justice for All is contacting individual courts around the state to collect emails.

"We want it to be like signing an online petition, but it automatically sends to the court and a landlord's email address that you provide," Weaver said. "We are working with tech volunteers."

Tenants who submit the form do so under "penalty of law" but will not be expected to defend or explain their hardship before a judge, to the chagrin of landlord attorneys.

"This law skews the balance between owner and tenant rights in an irrational manner," Sherwin Belkin, partner at Belkin Burden Goldman LLP, told Law360 by email, adding that the state government has "no problem depriving property owners of their rights predicated upon a wholly unsubstantiated claim."

Welcome Precision

In interviews this week, tenant attorneys told Law360 that the language of the new law is refreshingly specific. As guidance shifted from month to month last year and a small number of court-mandated evictions began to occur, lawyers criticized a patchwork of protections that excluded some tenants.

For example, the so-called Tenant Safe Harbor Act, implemented over the summer, created a special eviction defense for tenants sued for nonpayment of rent during the pandemic, but not tenants with pre-pandemic cases or those sued for violating or overstaying their leases. Cuomo eventually expanded the law, but still left the onus on tenants to prove their hardship.

And in the fall, tenant attorneys raised the alarm about the resumption of statutory deadlines that put thousands of tenants at imminent risk of defaulting on their eviction cases without an opportunity to defend themselves in front of a judge.

"It had been hazy before," said Marcie Kobak, director of litigation for Legal Services of the Hudson Valley. Whereas the new law pauses different types of cases at various stages of the court process, including those in which a default judgment or eviction warrant has already been granted.

An Exception to the Rule

There is one exception, however, for eviction cases alleging that a tenant is creating a "substantial safety hazard" to neighbors or "persistently and unreasonably" impacting the "use and enjoyment" of the property for their neighbors.

"Section 9 of the [law] describes when so-called 'nuisance' claims may go forward notwithstanding the 60-day stay period and when they must be preliminarily stayed for 60 days," Chalfen, the courts spokesperson, told Law360.

He also said that standard nuisance claims are typically in the minority, accounting for less than 5% of eviction cases.

State Sen. Brian Kavanagh, who co-sponsored the bill, agreed that the 60-day stay has a carveout. "The Legislature would not want tenants to engage in behavior that would endanger," he said. "The protections are broad but they're not absolute, and that applies to the 60-day period as well."

This raises implementation questions, attorneys and advocates said.

"What happens when a landlord files a new case?" wondered Marika Dias, director of the Safety Net Project at the Urban Justice Center in New York City. "Will there be an evidentiary hearing? What level of proof will be provided?"

Some landlord attorneys said they plan to move forward with cases in the coming weeks. "Yes, we are proceeding with them in appropriate cases," said Jeffrey Seiden of Borah Goldstein Altschuler Nahins & Goidel PC, noting that "landlords have an obligation to ensure that their tenants are able to live in safety and security."

But others expressed doubts that they'll get very far. "This is a mirage," said Olga Someras, general counsel for the Rent Stabilization Association, a landlord trade group. "The exception that is purportedly carved out for nuisance cases is subject to additional requirements that creates a much higher standard than what is typically required."

Ellen Davidson, an attorney with the Legal Aid Society, told Law360 that while she understands the need for a safety-related exception, she is concerned for tenants with mental disabilities, as well as long-term tenants in gentrifying neighborhoods.

"It's not unusual to see nuisance cases brought against tenants who are struggling with mental illnesses, and in gentrifying neighborhoods sometimes cases are brought against tenants where the issue is more about a culture class than real nuisance behavior," Davidson said. "Every time you have a narrow exception people will try to make it wider." 

Homeowner Protections

In addition to tenant protections, the law includes parallel mortgage and tax foreclosure prevention for homeowners and small landlords who own ten or fewer units.

This is welcome news to Jacob Inwald, director of foreclosure at Legal Services NYC.

"We are pleased that at least the Legislature recognized that low and moderate income homeowners are suffering," he said. "Many homeowners are dependent on rental income to pay their mortgages."

Still, Inwald said, the law has issues that could have been avoided with more input from foreclosure experts. For example, it mandates that courts distribute information about free legal services to tenants, but not to small homeowners, who may not know about the statewide Homeowner Protection Program. It also does not block lenders from pursuing money damages, or block foreclosures by co-op and condo boards.

Landlord trade groups were less enthused about the foreclosure forbearance written into the law, calling the 10-unit cap arbitrary. "Because it's so limited, it doesn't really impact a lot of our members," said Joseph Condon, general counsel for the Community Housing Improvement Program.

If landlords and tenants agree on anything this winter, it's that a financial remedy is sorely needed.

Landlord groups are calling for vouchers, while tenant groups have thrown their weight behind a state-level bill that would cancel rent payments and create a hardship fund for small landlords. In the coming weeks, eyes are on the state capital as legislators discuss how to distribute a new injection of $1.3 billion in federal rent relief.

"This [eviction] bill was debated, passed and signed into law at the same time that we learned that almost $1.3 billion would be sent toward the state," Davidson of Legal Aid said. "Everyone should be using this time to figure out how we use that money."

--Editing by Katherine Rautenberg.

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