NNY Enterprise Law Column: COVID-19 Eviction and Prevention of Foreclosures Act of 2020 | columns

Recently, New York State legislature passed the 2020 Eviction and Prevention of Foreclosures and Foreclosures Act (“EEFPA”) and the governor promptly signed it. EEFPA is designed to dramatically slow or stop all eviction procedures in the state and provide relief to homeowners affected by the pandemic.

Since the enactment of Executive Order 202.8 on March 3, 2020, which initiated a temporary pause in the eviction process, prosecuting evictions in New York State has been fraught with problems. After the initial moratorium was extended by EO 202.28 on June 30, 2020, tenants in New York received additional protection under the Tenants Safe Harbor Act (“TSHA”). Although some evictions resumed October 1, 2020, administrative orders from the New York State Unified Court System, moratoriums on default judgments, and arrears have also hampered landlords’ efforts to remove non-paying tenants. The latest evictions order has extended TSHA protection to January 1. To ensure that most tenants are protected from evictions during the brutal pandemic winter, and possibly to provide clarity to landlords, tenants and the courts, the legislature passed the EEFPA before the final extension of the Executive Order expired.

EEFPA eviction restrictions

The EEFPA will stop the eviction process, including those filed before the pandemic began and those that have already had an eviction warrant issued, until at least March 1. The only exception is in cases where the “tenant is persistent and inappropriate conduct that significantly affects the use and enjoyment of other tenants or occupants, or presents a significant safety risk to others. “Pending cases in which the landlord wishes to allege that the tenant is committing illegal or dangerous behavior must be re-filed unless this behavior was alleged in their original petition. Although not included in the law, Senator Brian Kavanagh, who introduced the Senate version of the bill, stated that the exception should include cases of property damage. The landlord’s claim about this behavior is insufficient and those attempting to use the exception should be ready to substantiate their claims.

Any other tenant can prevent the evacuation by May 1st at the earliest by submitting a statement to the court that he cannot pay rent or find alternative accommodation due to pandemic hardship or that the move poses a particular health risk due to the tenant or the move the age of a household member or other individual health risk. The Office of Court Administration publishes the form declaration provided for in the law. Landlords are obliged to provide the tenants with this form together with all documents that are sent to the customer in connection with a foreclosure. Tenants can prevent landlords from filing new petitions against them by submitting the statement directly to their landlord. Renters should be aware that it is a Class A misdemeanor (up to a year in prison) to falsify the statement, although they will not be asked to provide evidence.

EEFPA urges the courts to overturn default judgments against tenants before they are issued. It also limits the ability of the courts to issue new rules in cases where a hearing is held to give tenants the opportunity to assert pandemic hardship.

EEFPA has no impact on commercial evictions.

As with all previous moratoriums, the rent is still due for all rental contracts. If the courts resume hearing these cases, tenants may be held liable for any amounts overdue.

Protection for owners

Residential property owners facing foreclosure also benefit from automatic residence until at least March 1st. Foreclosures, foreclosures, and tax lien sales can receive similar protection for tenants by filing a form of hardship provided for in the EEFPA to mortgage lender, other foreclosure party, or in court. Submitting the declaration of hardship entitles the owners to stay until May 1st at least. Landlords who are natural persons who own 10 units or less, including their primary residence but with no vacant or abandoned units, are entitled to this protection for any of the following: their property.

Credit institutions are prohibited from discriminating against property owners who apply for loans because they have been granted residence under the EEFPA. This means that lenders will not be able to provide a negative report to a credit bureau if an owner takes any of the protections in the new law.

As with amounts due under leases, despite these enforcement changes, all mortgage payments and taxes remain the responsibility of the owners.

Local governments are required to move the Senior Homeowners Exemption (“SCHE”) and Disabled Homeowners Exemption (“DHE”) from the 2020 Assessment List to the 2021 Assessment List at the same levels. You’ll also need to make extension requests for anyone who may be eligible for a larger exemption in 2021, and allow an increase if the owner is eligible. Municipalities can also set procedures for auditors to request renewal requests from individuals who the auditors believe may no longer be eligible in 2021. Exemption recipients do not have to apply for extensions in person.

If you have any questions about the Eviction and Prevention of Foreclosures Act, contact Attorney Jennifer Huse Granzow at the Wladis Law Office. She can be reached at (315) 445-1700.

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