On September 1, 2021, state lawmakers voted to extend the COVID-19 emergency eviction moratorium to January 15, 2022.i The measure was passed 38-19, followed by the Assembly 80-60. The vote took place at a special session called by newly instated Governor Kathy Hochul. This was the first time members had convened in full since the pandemic began in March 2020.ii In addition to extending the eviction moratorium, legislators approved extending the window of protection to January 2022 under the Tenant Safe Harbor Act, which prevents eviction for nonpayment of rent if a tenant can show loss of income between March 2020 and June 2021.iii
The new law makes New York the first state to take measures following the August 12, 2021, 6-3 decision by the U.S. Supreme Court nullifying federal and New York eviction moratoriums.iv In New York’s high court case, the justices found that landlords were denied an opportunity to challenge a tenant’s claims of economic hardship. The main concern of the Supreme Court was that the prior moratorium law did not give landlords the opportunity to counter a tenant’s hardship claim, essentially halting eviction cases bases solely on a tenant completing a declaration form.v
The new law, like the old one, enables tenants to avoid eviction actions by filling out a form stating that they have lost income due to the pandemic or could face a health risk from moving.vi However, unlike the old law, landlords will be able to seek the court’s review of the tenant’s claims. A landlord will have to file a motion in court for either a pending eviction case or a new case challenging a tenant’s hardship claim.vii The new measures provide that a landlord can submit a sworn affidavit stating that the tenant’s hardship does not exist.viii The landlord could face criminal penalties if a court decides they have not proven a tenant’s hardship claim does not exist.ix Both parties would appear for a hearing where a judge would determine if the tenant is experiencing hardship.x If the court finds in favor of the tenant, the case is paused and the judge will direct both parties to the state’s rent relief program. If the judge finds in favor of the landlord, the case will continue. The new measure gives judges broad discretion over whether to move an eviction forward.xi
The new measures also add other benefits for landlords. There is a “nuisance standard,” which will let property owners start eviction proceedings against a protected tenant under certain circumstances.xii
The impact of the new measure could be widely felt, and there could be a surge in eviction proceedings as landlords attempt to utilize the measures provided in the new law.xiii New York has the highest share of renters, with the vast majority living in New York City, and more than 700,000 households are behind on rent.xiv “There have been fewer than 50 residential evictions in New York City since March 13, 2020, compared to 17,000 in 2019.”xv
However, it remains to be seen how effective the new law will be in allowing landlords to contest a tenant’s declaration of hardship. It may all hinge on what burden of proof the court will place on a landlord to establish a tenant is not experiencing hardship or a tenant has become a nuisance.xvi
On September 9, 2021, the Rent Stabilization Association, New York’s largest landlord group representing 25,000 landlords, filed a motion with the Second Circuit Court of Appeals challenging the new law.xvii The group argues that the new measures are only “superficial changes” to the old law and do not comply with the U.S. Supreme Court’s August ruling.xviii
i See Allison Dikanovic and Josefa Velasquez, New York Extends Eviction Moratorium to Early 2022, Offering New Chance to Landlords to Push Back (September 1, 2021) available at https://www.thecity.nyc/housing/2021/9/1/22653368/new-york-extends-eviction-moratorium (last accessed September 22, 2021).
iii Dikanovic and Velasquez, New York Extends Eviction Moratorium to Early 2022, Offering New Chance to Landlords to Push Back.
iv Mihir Zaveri and Luis Ferré-Sadurni, New York Passes Bill Extending Eviction Moratorium to January (September 1,2021) available at https://www.nytimes.com/2021/09/01/nyregion/eviction-moratorium-new-york.html (last accessed September 22, 2021).
vi Dikanovic and Velasquez, New York Extends Eviction Moratorium to Early 2022, Offering New Chance to Landlords to Push Back.
viii Bernadette Hogan and Mark Lungariello, NY Landlords Sue Over Extend Eviction Moratorium (September 9, 2021) available at https://nypost.com/2021/09/09/ny-landlords-sue-over-extended-eviction-moratorium/ (last accessed September 22, 2021).
ix The Editorial Board, New York Trashes Landlords Again (September 6, 2021) available at https://www.wsj.com/articles/new-york-trashes-landlords-again-albany-eviction-moratorium-11630939292 (last accessed September 22, 2021).
x Dikanovic and Velasquez, New York Extends Eviction Moratorium to Early 2022, Offering New Chance to Landlords to Push Back.
xi Dikanovic and Velasquez, New York Extends Eviction Moratorium to Early 2022, Offering New Chance to Landlords to Push Back.
xii Zaveri and Ferré-Sadurni, New York Passes Bill Extending Eviction Moratorium to January.
xiii Zaveri and Ferré-Sadurni, New York Passes Bill Extending Eviction Moratorium to January.
xv David Brand, What New York’s Latest Eviction Protections Mean for Renters and Landlords (September 2, 2021) available at https://citylimits.org/2021/09/02/what-new-yorks-latest-eviction-protections-mean-for-renters-and-landlords/ (last accessed September 22, 2021).
xvi Rhea Ja, What the NY Extended Eviction Moratorium Means for Landlords (September 3, 2021) available at https://www.mytwintiers.com/news-cat/top-stories/what-the-ny-extended-eviction-moratorium-means-for-landlords/ (last accessed September 22, 2021).
xvii Brand, What New York’s Latest Eviction Protections Mean for Renters and Landlords.
xviii Hogan and Lungariello, NY Landlords Sue Over Extended Eviction Moratorium.