Emergency Rental Assistance Program
The New York State Emergency Rental Assistance Program (“ERAP”) opened as of June 1, 2021, and is designed to provide significant economic relief to help low and moderate-income households at risk of experiencing homelessness or housing instability by providing rental arrears, temporary rental assistance and utility arrears assistance. Assistance will be distributed on a first-come, first-serve basis for as long as funding remains. The application and instructions can be accessed 24-hours a day, 7-days a week at: https://otda.ny.gov/programs/emergency-rental-assistance/. The application must be completed online or over the phone. Applications may not be mailed. There is no cap on the monthly rental amount and assistance will not qualify as income for income tax or public assistance purposes. There are no immigration status requirements to qualify for the program. In the event of a denial, a review/appeal process is available.
*Monroe County, Onondaga County, the City of Rochester, the City of Yonkers and the towns of Hempstead, Islip and Oyster Bay received funding for emergency rental assistance directly from the federal government and, as such, are administering their own programs. Residents of these areas must apply directly through these programs and not through New York State.
New York residents (not living in the areas noted above) are eligible for ERAP if they meet ALL of the following criteria:
The household must be at risk of experiencing homelessness or housing instability (which can be demonstrated by having rental arrears owed on or after March 13, 2020)
Households approved for ERAP may receive any or all of the following:
Payments from ERAP will only be made directly to the Landlord or utility company on behalf of the tenant. Payments will not be made, under any circumstance, to the tenant. Tenants will be notified of the amounts paid on their behalf.
An application for ERAP may be started by either a renter or a Landlord, however, BOTH are needed to complete certain sections and sign the application.
RENTERS will need to provide:
LANDLORDS will need to provide:
If a Landlord is difficult to locate or does not otherwise provide information needed to complete the application, funds will be held for up to 180 days to allow sufficient time to locate the Landlord and collect the required information.
*If a Landlord refuses to accept an ERAP payment for rental arrears owed by a tenant, the tenant may use their determination of ERAP eligibility as an Affirmative Defense in any proceeding brought by the Landlord during the subsequent year for a money judgment or an order of eviction based on nonpayment of rent that would have been covered by the payment.
The Landlord must agree to the following in order to accept ERAP payments:
The Tenant Safe Harbor Act (TSHA) was signed into Law on June 30, 2020 by Governor Cuomo and known as 2020 NY LAW CHAPTER 127.
The TSHA applies to:
residential tenants or lawful occupants, who sustained a COVID-19 related financial hardship after March 7, 2020
actions for non-payment of rent
The stated purpose of the law is: To help keep residential tenants in their homes following the COVID-19 pandemic by allowing only money judgments and not evictions for unpaid rent that becomes due while restrictions are in place due to COVID-19 on businesses, public accommodations and nonessential gatherings.
Pursuant to the Law, Section 2(1) “No court shall issue a warrant of eviction or judgment of possession against a residential tenant or other lawful occupant that has suffered a financial hardship during the COVID-19 covered period for the non-payment of rent that accrues or becomes due during the COVID-19 covered period.
The Financial COVID-19 Hardship is a defense that needs to be asserted by the tenant or lawful occupant when they appear in court.
Once the defense is asserted, the court makes a determination whether there was a COVID-19 hardship based upon a consideration of: the income prior to March 7, 2020; the income after March 7, 2020, the liquid assets, and the ability to obtain government assistance.
The court needs to find that the tenant/lawful occupant suffered a COVID-19 financial hardship. This will presumably require a hearing with presentation of tax returns, pay stubs, unemployment statements, etc. The landlord would have the right to contest the financial hardship claim and assert that there should not be any stay of the issuance of a warrant of eviction.
If the court finds that a COVID-19 financial hardship has been proven, then it will not issue the warrant of eviction or judgment of possession.
U.S. Federal Eviction Moratorium
On March 27, 2020, The United States Legislature passed the CARES Act Eviction Moratorium which lasted until July 24, 2020. The CARES Act moratorium protected “federally related properties” which was defined as properties participating in federal assistance programs or with federally backed financing. The CARES Act moratorium prohibited landlord from initiate eviction proceedings, and prohibited landlords from charging fees or penalties for unpaid rent during the period of the moratorium. CARES Act § 4024.
At the expiration of the CARES Act eviction moratorium, President Trump issued an executive order asking the Centers for Disease Control and Prevention (“CDC”) to extend the eviction moratorium through its administrative powers. On September 4, 2020, the CDC did extend the federal eviction moratorium, however it included different requirements than the CARE Act moratorium. Notably, the CDC moratorium had a wage-based restriction for application of the moratorium, and renters had to qualify as being “unable to pay the full rent or make a full housing payment due to substantial loss of household income, loss of compensable hours of work or wages, a lay-off, or extraordinary out-of-pocket medical expenses.” 42 U.S.C. § 264; 42 CFR § 70.2.
The CDC Eviction moratorium was extended throughout the rest of 2020 and into the summer of 2021. On June 29, 2021, landlords challenged the validity of the CDC eviction moratorium, and the United States Supreme Court in Alabama Association of Realtors v. Department of Health and Human Services denied the application vacating the CDC moratorium, however the court noted that the CDC did not have the authority to implement he moratorium, however since the moratorium was ending in a couple of weeks the Court would not remove it. This moratorium has expired July 31, 2021.
On August 3, 2021, the CDC issued a new order banning residential sections for United States counties that are experiencing “substantial and high” levels of COVID-19. This order has similar protections and restrictions as the previous CDC moratorium with a limited focus to high-risk COVID counties. As of today, there are substantial legal challenges proceeding against this new moratorium. On August 13, 32021, U.S. District Judge Dabney Friedrich of the DC Circuit District Court denied removing the CDC moratorium stating that any chance of relief sort by thew landlords would have to be given by the appellate level. There are no further decisions on the matter and the CDC moratorium is in place for high risk COVID-19 counties.
NYS Eviction Moratorium
On March 20, 2020, NYS Governor Andrew Cuomo issued Executive Order 202.8 which prohibited the enforcement of any eviction of any residential or commercial tenant for 90 days due to the COVID-19 State of Emergency. This Executive Order would be extended throughout all of 2020, with a final executive order, Executive Order 202.66, extending the moratorium through January 1, 2021 for residential evictions, and through January 31, 2021 for commercial evictions.
On December 28, 2020 the NYS Legislature passed and Governor Cuomo signed the COVID-19 Emergency Eviction and Foreclosure Prevention Act of 2020 (“NYS Act”). This act provided a blanket protection of all residential and commercial evictions that prevented any of these eviction from going forward until March 1, 2021. The Act also provided the ability for tenants to the file a “COVID-19 Hardship Declaration” which if filed would stay the Landlord/Tenant proceedings up to May 31, 2021. This declaration is signed by the tenants attesting that he or she has significantly reduced income because of the COVID-19 pandemic or is of the age or has health related conditions that put them at high risk of getting sick from COVID-19. This act was extended on May 4, 2021 to include a stay of all eviction proceedings with a filed COVID-19 Hardship Declaration to August 31, 2021 and NYS Administrative Order 159/21 allowed for tenants to file a Hardship Declaration at any time during the eviction proceeding to receive the relief of stay of the eviction action.
In a practical sense, a tenant simply filing a COVID Hardship Declaration stayed the entire eviction proceeding without any sort of hearing or having the tenant provide any actual proof that the tenant is experiencing a hardship from COVID-19. On August 12, 2021, the United States Supreme Court in Chrysafis v. Marks granted the application brought by the landlords, declaring the COVID-19 Hardship Declaration process of the NYS Act as unconstitutional because it violated the due process rights of the landlord by enacting a stay without the opportunity for the landlord to be heard contesting the tenant’s COVID-19 hardship.
In short, the automatic stay provided by the filing of COVID-19 Hardship Declarations are now unconstitutional and evictions theoretically can be moving forward under state law. The CDC moratorium would protect high-risk COVID-19 counties such as Suffolk, Nassau and the five boroughs. However, given the recent U.S. Supreme Court decision and the legal challenges brought against the CDC moratorium, the NYS landlord tenant courts will most likely be moving evictions along, albeit slowly, and will most likely require hearing for the tenants to prove an actual hardship form the COVID-19 pandemic.