What’s Going On with ERAP?

If you live in New York, and are either a landlord or a tenant, you may still be waiting to hear about your ERAP application. Here are some things you’ll need to know.

A Quick ERAP Refresher

The Emergency Rental Assistance Program (ERAP) is a New York State program to help tenants and landlords with missed rent payments due to the COVID-19 pandemic. Eligible tenants who are approved can receive up to 12 months of back rent for missing payments on or after March 13, 2020. ERAP applications can be filled out by either a tenant or their landlord. All funds from an approved application will be sent directly to the landlord.

Can You Still Apply?

As of March 31, 2022 funding in New York State has been exhausted. However, residents in most towns in New York can still apply through the OTDA portal, as new moneys may become available by the time their application is processed. The exceptions are the towns that funded their programs locally, which includes the towns of Hempstead and Oyster Bay in Nassau County (which are no longer accepting applications), and Islip in Suffolk County, where funding is still available.

If You’ve Applied and are Still Waiting

As of May 24, 2022 – 333,724 people have applied to the program and only 156,415 applications have been processed so far (the state is currently working on applications received before December 31, 2021). So, depending on when you applied for the program you may have a long wait to hear back.

What Rules Do Landlords Need to Follow with ERAP

• You cannot start the eviction process due to non-payment of rent if your tenant has an ERAP application pending.
• Once you receive an ERAP payment, you must waive any late fees for the time period covered by the payment.
• You cannot raise your tenant’s rent for one year after receiving payment.
• If your tenant’s lease is expiring, you cannot evict them for one year after receiving payment UNLESS the dwelling contains four or fewer apartments and you or your immediate family will be moving in and using it as a primary residence.
• If you feel your tenant is using ERAP as an excuse not to pay their rent, you can report ERAP fraud here.

What Tenants Need to Know

• ERAP only protects tenants who endured economic hardship due to the pandemic. If you were behind on your rent BEFORE the pandemic, ERAP will not cover those back payments, and you are still legally required to pay them.
• ERAP payments apply to up to 12 months of missed rent payment (starting March 13, 2020) and no more than three months of “future” payments. Once your landlord receives these payments, you are legally responsible to pay any rent bills going forward.
• Eviction protections for tenants only cover missing or late rent payments. You can still be legally evicted if you have broken other terms of your lease, or you are behaving in a destructive or dangerous manner.
• ERAP protection is only for people below a certain median income. If you are currently able to pay your rent in a timely manner, will be denied any protection under ERAP.

How a Good Landlord/Tenant Lawyer Can Help

This is a frustrating time for both landlords and tenants. Information is coming from multiple sources that tend to contradict each other. ERAP is taking far longer to process applications than expected and the program keeps running out of money.

The other challenge is the statute itself. It was drafted under emergency conditions and was meant to keep people from becoming homeless during a dangerous pandemic. However, the speed at which the statute was passed left several legal questions.

For example, a number of judges are concerned about the constitutionality of ERAP, feeling that it denies landlords “due process” (the right to challenge something through the court of law). The wording in the ERAP statute can lead to a messy situation where different judges have different approaches when it comes to a landlord/tenant dispute.

In the case of Harbor Tech LLC v Correa, a Brooklyn judge decided against a landlord who challenged that the ERAP statute was against landlords, stating that the landlord would also be benefiting from the program once the funds came in.

In the case of Carousel Props. v. Valle, a Suffolk County judge refused a landlord’s request to dissolve the ERAP stay. The landlord didn’t want the ERAP money, he just wanted to move into the property himself. The judge noted that while the statute did allow for evictions to allow reclaiming property for personal use, it was only allowed AFTER the ERAP application was processed.

On the flip side, in Abuelafiya v. Orena, a Queens judge sided with the landlord, when the tenant could not prove that they had filed a COVID-19 Hardship Declaration before the eviction notice was delivered, missed multiple court dates, and owned another home that they could move to.

Also in Queens, in Karan Realty Assocs. LLC v. Perez, the Housing Court agreed that an ERAP stay could be dissolved if the tenant had not completed the ERAP application knowing that they were not eligible for the program.

What to Do Next

If you are still waiting to hear if your ERAP application has been approved and your landlord/tenant relationship has seriously deteriorated, having the advice of the rightlandlord/tenant attorney can help diffuse the situation. Reach out to New York landlord/tenant attorney Ronald Weiss for a free consultation. He can tell you what you need to know about the New York ERAP process, and, if you have a valid legal claim, help you get your case started. Call 631-271-3737 and take the first step to a fresh start.