COVID-19 Information: What’s Changed? What Do You Need to Know?
UPDATED JANUARY 12, 2021:
On December 28, 2020 the New York State Assembly passed, and the Governor signed, the COVID-19 Emergency Eviction and Foreclosure Prevention Act. The full Act is available here ; for your convenience, a summary of key provisions follows.
All tenants are covered except those who have a seasonal lease and also have a place to return to.
All evictions which were pending as of 12/28/2020 or filed before 1/27/2021 must be stayed for 60 days. Courts must issue orders to this effect and must also send the tenant a hardship declaration. (That declaration is also available in Spanish and a number of other languages.) This includes administrative proceedings, such as informal hearings at housing authorities.
If you are undergoing a financial or medical hardship during COVID and can truthfully fill out the form, you should send it in to the court or to your landlord. Once you do this, you may not be evicted until 5/1/2021 (or any later date which is set by the court system.) You will still owe rent, however.
If you fill out the form and give it to your landlord, even if there is not an eviction ongoing, then you may not be evicted until 5/1/2021 (or any later date set by the court system). If your landlord sends you a rent demand or similar notice, then it must include the hardship declaration for you to return and must also include a list of legal services organizations.
If a court has already issued a warrant, it must be stayed until you and your landlord appear for a status conference. If you turn in a hardship declaration at that conference or shortly after if the court agrees to that, you may not be evicted until at least 5/1/2021 (or a later date set by the court system). If a sheriff or similar officer comes to execute a warrant, you can give that person the hardship declaration. This will halt the eviction until at least 5/1/2021.
If there is a default judgment against you (if you did not appear in court) and a warrant was issued for that reason, then it may not move forward without a court hearing, which your landlord must require. At or before that hearing, you may ask the judge to put the case back on the calendar. It appears that you may at that time give the court or your landlord a hardship declaration.
YOU CAN STILL BE EVICTED IF: You have been persistently and unreasonably behaving in a way that substantially interferes with others’ use and enjoyment of their homes or which causes a substantial safety hazard. However, the landlord must prove this and cannot just state that this is the case.
This section covers anyone who is an actual person (not a company) and directly or indirectly owns ten or fewer dwelling units, as long as the person lives in one of the units and the others are rented or for rent. It does include a residential co-op, but it does not include vacant or abandoned properties. This law does not apply to mortgage loans made through a governmental agency of the state which is constituted as a corporation and political subdivision.
All ongoing foreclosures must be halted for sixty days from the date of the legislation, until 2/26/2021, and the court must mail you a hardship declaration in your primary language (it is also available in Spanish and a number of other languages). If you can truthfully fill out the form stating that you are having financial difficulties during COVID and send it to the court or your lender, then the foreclosure may not go forward until 5/1/2021 or a later date established by the courts. Please note that you will still owe the money that was due during this time.
Your lender must send you the hardship declaration with any pre-foreclosure notices they send you. If you complete the form and return it to your lender, they may not start a foreclosure until 5/1/2021 or a later date established by the courts. You will still owe the money that was due during this time. If your home has already been foreclosed on but a judgment of sale has not been issued, and if you return the hardship declaration to the court or the lender before it is issued, then the house may not be sold until 5/1/2021 or a later date established by the courts. If a judgment of sale has been issued but not executed (your house has not been sold) the house may not be sold until the court has held a conference and given you the chance to complete a hardship declaration. If you complete and turn in the declaration, then your house may not be sold until 5/1/2021 or a later date established by the courts.
COVID-19 Related Legal Lifelines
- Requesting Mortgage Assistance During the COVID-19 Pandemic
- Landlord-Tenant Concerns During the COVID -19 Health Crisis (Leer en español)
Evictions: If the eviction was filed on or before March 16th, 2020, a court may hold an in-person settlement conference pursuant to Judge Marks’s Administrative Order 160/20. The case may go forward; however, no evictions may be carried out until at least October 1, 2020. If the eviction was filed after that, then it may not be heard in person. It may be scheduled for a virtual hearing only if both parties have attorneys.
The updated memo of March 19th, 2020 clarifies that landlord lockouts, serious housing code violations, and repair orders are “essential functions” statewide which courts can still hear.
Executive Order 202.28, issued on May 7, 2020, continued the eviction moratorium for some tenants through August 19th, 2020. However, this only applies to evictions:
- Because of nonpayment
- When the tenant is eligible for unemployment benefits (under state or federal law) or “otherwise facing financial hardship due to the COVID-19 pandemic.
This does not apply to holdover evictions or to evictions of individuals for reasons other than COVID related hardship. Those may resume either on June 19th, 2020 or when the court system allows new evictions to be filed. In any case, however, a landlord may not collect late fees, payments, or charges for the period from March 20-April 20, 2020.
Additionally, this Executive Order allows tenants, at their option, to use their security deposit for rent. There are some basic rules around this:
- It is up to the tenant whether she or he wants to do this. The landlord may not harass or coerce the tenant.
- The agreement must be in writing. E-mails are acceptable.
- The tenant must repay the security deposit within ninety days of using it as rent and may pay it in twelve equal increments. (One interpretation of this is that the first payment is due within ninety days, with a payment due each month thereafter. Others are reading it to mean that the whole security deposit is due within ninety days.)
COVID-19 Related Legal Lifelines
In Judge Marks’s Memorandum 157/20, he specified that residential foreclosures may be filed and conferenced, but that no court ordered auctions or sales may take place until at least October 15, 2020. Further, conferences are to inquire into (among other things) the effect of COVID on the resident’s finances.
In Judge Marks’s Memorandum of March 15, 2020, he limited the courts to “essential functions.” In his update of March 19, 2020, he specified that court ordered auctions and residential foreclosures were not essential functions and were to be suspended immediately.
On March 18, 2020 the Department of Housing and Urban Development (HUD) issued Mortgagee Letter 2020-04, which announced an immediate sixty-day moratorium on foreclosures from properties secured by FHA-insured single family mortgages. This applies to the initiation of foreclosures as well as those in process, and first legal action and reasonable diligence deadlines are also extended by sixty days. Evictions from these properties are also suspended for sixty days. These protections are also included in the CARES Act as signed into law on March 27th, 2020.
On March 20th, 2020, Governor Cuomo issued Executive Order 202.8, providing that no residential or commercial foreclosures will be enforced for 90 days. (June 18, 2020). Further, on March 21st, 2020 he issued Executive Order 202.9, which provides that financial institutions must offer a ninety-day forbearance to any consumer who experiences financial hardship due to COVID-19. The DFS superintendent must ensure that any financial institution licensed in New York makes an application for forbearance widely available and grants it wherever reasonable during this emergency.
Executive Order 202.28, issued on May 7, 2020, extends the moratorium on foreclosures through August 19, 2020 when the homeowner is eligible for unemployment under state or federal law or is otherwise experiencing financial hardship due to COVID-19. Please note that even if other foreclosures can be filed before then, it is still uncertain when the courts will open back up for new filings.
PLEASE NOTE: it is unclear whether tax foreclosures are included, and different places may handle tax foreclosures differently.