The Daily Record

On Dec. 28, Gov. Andrew Cuomo signed the COVID-19 Emergency Eviction and Foreclosure Prevention Act of 2020 (the “Act”) into law. The legislation seeks to protect New York State citizens adversely affected by the COVID-19 pandemic by keeping a roof over their heads.

The Act stays all eviction and foreclosure proceedings pending as of Dec. 28, 2020, including those filed on or before March 7, 2020, or within 30 days of Dec. 28, 2020, for at least 60 days or such later date as may be determined by the chief administrative judge. The Act also extends the moratorium on the commencement of residential evictions or mortgage or tax lien foreclosures to May 1, 2021.

Tenants or owners who wish to take advantage of the moratorium or stay must provide a Standardized Hardship Declaration (“Declaration”) to the applicable landlord, lender or court. An owner is defined as the owner of an aggregate of 10 or fewer dwelling units, including their primary residence.

Landlords and foreclosing parties must include a copy of the Declaration (in 14-point type) with every written demand for payment or other written notice in the tenant’s or owner’s primary language. If a translation is not available on the court administration’s public website, the landlord or lender must provide a translation. Such notice must also include: (a) a mailing address, telephone and active email address that the tenant or owner can use to contact the landlord or lender and return the Declaration; and (b) a list of all nonprofit legal service providers actively handling housing matters in the county where the property is located. This list can be found on the court administration’s public website. If a tenant returns a signed Declaration, eviction or foreclosure proceedings cannot be commenced until at least May 1, 2021. The Declaration is submitted under penalty of perjury and requires a tenant or owner to attest that they are unable to pay their rent, mortgage or taxes due to one or more of the following: (a) significant loss of household income during the pandemic; (b) increase in necessary out-of-pocket expenses related to performing essential work or related to health impacts during the pandemic; (c) child care responsibilities or responsibilities to care for an elderly, disabled or sick family member during the pandemic that have negatively affected their ability to obtain meaningful employment or earn income or have increased their necessary out-of-pocket expenses; (d) moving expenses and difficulty securing alternative housing making it a hardship to relocate to another residence during the pandemic; (e) other circumstances related to the pandemic that have negatively affected their ability to obtain meaningful employment or earn income or have significantly reduced the household income or significantly increased expenses; (f) one or more of an owner’s tenants has defaulted on a significant amount of their rent payments since March 1, 2020; or (g) being forced to move will cause an increased risk for illness or death from COVID-19 as the declarant or a member of their household is over the age of 65 or has an underlying medical condition or disability. In addition, the declarant must also attest to the fact that public assistance has not fully made up for the loss of household income or increase in expenses. There is a rebuttable presumption that financial hardship exists if a tenant submits a Declaration. If a landlord or foreclosing authority does not receive a Declaration and wishes to initiate an eviction or foreclosure proceeding, they must file an affidavit attesting to the manner of delivery of the Declaration to the tenant or owner and that the Declaration was not returned. If a petition is accepted by a court for service, it must include a copy of the Declaration in the tenant or owner’s primary language.

Proceedings that are pending in which a warrant or judgment of sale has not been issued will be stayed until May 1, 2021, if a Declaration is provided. In proceedings where a warrant or judgment of sale has been issued, the proceedings will be stayed until a status conference is held and if a Declaration is submitted, execution will be stayed until at least May 1, 2021.

While the Act is certainly a step in the right direction, one must remember that all monies due from tenants and owners will need to be paid at some point. Unfortunately, some people will not be able to catch up, even once they are working. A long-term solution that balances the needs of the tenants, landlords, lenders, and owners so they can all be successful in a post-COVID world is absolutely necessary. 

click here to view New York’s COVID-19 Emergency Eviction and Foreclosure Prevention Act of 2020 as a PDF

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This website presents only general information not intended as legal advice. Although we encourage calls, letters and emails from prospective clients, please keep in mind that merely contacting Harter Secrest & Emery LLP (HSE) does not establish an attorney-client relationship between us. Confidential information should not be sent to HSE until you have been notified in writing by HSE that a formal attorney-client relationship has been established. Information sent to us before then may not be treated as confidential by HSE or the court.

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