A Sworn Declaration May Save A Tenant From Eviction
Just days before the expiration of the CDC-imposed stay on evictions, on December 28, 2020, Governor Andrew M. Cuomo signed into law the COVID-19 Emergency Eviction and Foreclosure Prevention Act of 2020 (the “Act”), extending the stay on residential evictions. While the Act also includes provisions for stays on tax lien sales, certain homeowner exemptions, and credit discrimination and negative credit reporting, this article will focus only on the stay on residential evictions under Part A of the Act.
Under the Act, residential eviction proceedings commenced prior to December 27, 2020, are stayed until at least February 26, 2021 (60 days from the legislation’s effective date). Residential eviction proceedings commenced between December 28, 2020, and January 27, 2021, are stayed a minimum of 60 days from their filing date. The stay is to enable tenants to submit a Standard Hardship Declaration Form (the “Declaration”).
For all proceedings, the landlord must provide the tenant with the Declaration in the tenant’s primary language, to be submitted to the landlord and the Court in pending and new proceedings, together with a list of all not-for-profit legal service providers handling housing matters, both of which must be reflected on the Affidavit of Service filed with the Court. The Declaration gives tenants an opportunity to advise their landlord and the court that the tenant (1) has a financial hardship related to, or during the COVID-19 pandemic that prevents them from being able to pay their rent in full or move or (2) has someone in their household who is at increased risk of severe illness from COVID-19.
The tenant’s Declaration also allows a tenant to declare financial hardship if the tenant (1) has lost income, (2) has increased health, child care, or other family care expenses, (3) has been unable to obtain meaningful employment because of circumstances relating to COVID-19, or (4) cannot afford moving expenses.
Once the tenant has signed and submitted the Declaration to its landlord and/or the Court, a new eviction proceeding is precluded, or a pending proceeding is stayed (respectively), until at least May 1, 2021. The Act does not provide a verification process for the landlord, nor does it provide for any real penalty, despite language in the Declaration that it is signed under penalty of law. The Act places the affirmative obligation on the landlord or its attorney to submit the Declaration to the Court.
To the limited extent, default judgments had been issued, they may be vacated upon the request of the tenant. No default judgments will be issued prior to May 1, 2021, without the Court holding a hearing upon the landlord’s motion. In keeping with prior legislation, a landlord seeking to execute a warrant issued prior to December 28, 2020, must first confer with the Court. In proceedings in which a tenant has submitted the Declaration, the execution of the warrant of eviction is stayed until at least May 1, 2021.
The Act still permits the commencement and continuation of proceedings based on a tenant’s nuisance where the behavior substantially infringes on the use and enjoyment by other residents of their apartments or causes a significant health or safety hazard. Submission of the Declaration in those cases will not stay eviction proceedings provided the landlord demonstrates that the tenant is continuing to persist in the nuisance or objectionable behavior.
This new legislation adds to the protections afforded to tenants under the Tenant Safe Harbor Act, except that the Act further constrains landlords, as the submission of the Declaration creates a rebuttable presumption that the tenant experienced financial hardship. The burden then falls to the landlord to disprove this presumption.
We represent both landlords and tenants in summary eviction proceedings. If you have any questions please contact Gallet Dreyer & Berkey, LLP.
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