COVID-19: Landlord/Tenant Issues

In recent articles posted on this website we have looked at the various ways that COVID-19 has affected shopping centers, co-ops, condominiums, commercial leases, real estate brokerage firms, and the real estate market in the Hamptons.

The focus of this article is how federal and state government actions have affected landlords and tenants.

For her expertise regarding landlord/tenant law, I interviewed Hannah Abrams, Staff Attorney and Of Counsel to the Director of the private non-profit Nassau/Suffolk Law Services Committee, Inc., located on Main Street in Riverhead, N.Y. Hannah has been with the organization for the past fifteen years and focuses mainly on landlord/tenant issues.

I asked Hannah to tell us what the organization’s mission is and how they are funded.

HA: Our organization is funded primarily through the state court system (the Office of Court Administration) and with funds from the I.O.L.A. program: Interest on Lawyers’ Escrow Accounts. Our mission is to help people in need to vindicate their rights under the law. We provide free legal services in thousands of cases each year. We advocate for people of low income, the disabled, victims of domestic violence, those with consumer debt, elder law, social security, and those in need of public assistance.

Author’s Note: I.O.L.A: Interest on Lawyers’ Accounts, are derived from the interest on moneys deposited with lawyers, for example, deposits that buyers put up on signing of the contracts for the purchase of property. When challenged in the courts as a “taking” violating the Fifth Amendment to the Constitution, the Supreme Court ruled that the individual funds that accrue are de minimis, and therefore did not constitute a taking. These funds are used to compensate legal aid lawyers who represent individuals who otherwise could not afford legal counsel. (Brown v. Legal Foundation of Washington, 2003).

I asked Hannah to sort out for us the federal and New York State statutes and Executive Orders regarding residential landlords and tenants due to Covid-19.

HA: The most, most important protections in place as of January, 2021 are the NY COVID-19 Emergency Eviction and Foreclosure Prevention Act of 2020, and the New York State Safe Harbor Act, The CDC Moratorium and CARES Act Moratorium are also important protections for renters.

The first Act gives tenants living in buildings of ten units or fewer who are experiencing financial hardships until May 1, 2021 before eviction proceedings can go forward – unless the landlord alleges the tenant is creating a nuisance. The Act allows the tenant to complete a Hardship Declaration to alert their landlord and the courts that they are experiencing a financial hardship or that moving during the pandemic would create a significant health risk. That would include people over 65, those with disabilities and underlying health conditions, and those who are immunocompromised.

Landlords are required to provide the Hardship Declaration to their tenants several times before starting a new eviction proceeding.

Eviction proceedings pending as of December 28, 2020 will be stayed until February 26, 2021. Those filed between December 28, 2020 and January 27, 2021 will be stayed sixty days from filing to give tenants time to complete the Hardship Declaration and seek legal help.

The second Act created a special COVID defense that tenants can raise in court once eviction proceedings are heard again. A court finding that a tenant or lawful occupant suffered financial hardship due to the pandemic, the court cannot issue a warrant of eviction or judgment of possession for non-payment of rent during the COVID covered, March 7, 2020 until the date the provisions in the County of residence are lifted.

The federal government has also issued eviction moratoriums through the Center for Disease Control (CDC) which covers tenants through January 13, 2021, and the Federal CARES Act that provides protection from evictions to tenants in federally subsidized housing programs and federal backed mortgages. These programs are administered by HUD (U.S. Department of Housing and Urban Development). Also federally backed loans and mortgages are protected from foreclosure.

I would like to ask you about the New York Housing Stability Tenant Protection Act that came into effect on June 14, 2019, preceding COVID-19. One of the provisions is that a court, under certain clearly defined conditions, can stay an execution for non-payment of rent up to one year. How do you measure that against restrictions on evictions defined in New York Law as a result of COVID?

HA: Well, that provision leaves the decision to stay the eviction for whatever period of time to the court. The provisions in the Acts we just spoke about are statutory and must be followed by the courts. A complaint of many landlords with respect to short-term rentals, especially in the Hamptons, is that the Tenant Protection Act limits the collection of a security deposit to one month’s rent.

Yes. Assemblyman Fred Thiele has introduced an amendment that would exempt rentals up to one hundred and twenty days, but the amendment is still pending in the Legislature.

Please tell us the distinction between a marshal and a sheriff with respect to evictions.

HA: In New York City, evictions are carried out by marshals. In Nassau and Suffolk Counties, they are carried out by sheriffs.That’s the only distinction. They perform the same function.

I want to bring up two opportunities that would help tenants struggling to pay the rent that have been in effect in New York State long before COVID-19. One is the “Roommate Law” defined in Section 235-f of the New York Real Property Law. It prohibits a landlord from restricting occupancy to only the tenants named on the lease. It allows each tenant to have an additional person not named on the lease to occupy the apartment up to the number of occupants permitted by law. The tenants and the occupants may share the rent stated in the lease, and the tenant is required to give the landlord notice of the roommate’s occupancy thirty days from the day the roommate takes occupancy. The law also requires that the landlord and tenant may not bargain away the right. To do so, would be against public policy.

HA: Yes. That’s correct. The law states the tenant may have a roommate and the roommate’s family dependents up to the number permitted by law. Any clauses in the lease that contradict the law are unenforceable. I have invoked the “Roommate Law” in several cases.

The other opportunity I would like to highlight is the subject of sub-leasing with respect to fair market rentals. Am I correct that a tenant has a common law right to sublet the apartment to a sub-tenant without changing the amount of rent that the tenant has to pay to the landlord?

HA: Yes. That’s correct. Unless there is a clause in the lease prohibiting the sub-let or requires the landlord’s permission.

It’s also true, correct me if I’m wrong, that if the building contains five or more units, and the lease prohibits or requires the landlord’s permission, the landlord cannot unreasonably deny consent?

HA: Yes. That’s also true, but most of my tenants do not live in buildings of five or more units so I have never encountered that situation.

Well, it sounds to me that it’s unreasonable to expect a tenant to be aware of all of their rights under the law, which makes a strong case for the necessity of people like you. But what about the fact that landlords are experiencing high arrears and still have obligations to pay their mortgages, taxes, and maintain the buildings irrespective of the tenant’s inability to pay their rent?

HA: That is absolutely true. Landlords do have the protection from foreclosure, nor can foreclosures be initiated. And foreclosures already in process cannot be continued. Nor can they be reported to credit agencies, tax liens and tax foreclosures are prohibited.

The last thing I would like to talk about is the HUD Section 8 Program by which tenants may not pay more than 30% of their income for rent, and the landlord can get the difference up to the fair market rent maximum permitted by HUD. Would you comment on that?

HA: There are at least two problems with that. The demand for Section 8 housing far exceeds the supply. The waiting lists maintained by the Housing Authorities in the Towns of East Hampton and Southampton are evidence of that. Second, HUD has cut the funding of the Program. And third, the fair market rents that HUD would allow are too low. If the new administration would take steps to increase the funding and raise the allowable fair market rents, even for a limited duration to address the problems as a result of the pandemic, it would be beneficial for both landlords and tenants.