The State of Play for Eviction Moratoria and Rent Relief

It has been an eventful few weeks in the ongoing debate over eviction freezes and rent relief in New York State. As landlords continue to press for evictions to proceed, tenant advocates are seeking to extend protections on the grounds that COVID-19 is still causing economic hardship and creating health risks for tenants who are not allowed to stay in their homes. Here is the current state of play, which is likely to change in the coming days and weeks.

The New York State freeze on residential and certain commercial evictions, which was first enacted in March 2020 and extended repeatedly thereafter, is currently in effect until August 31, 2021.  Whether Governor Kathy Hochul and the legislature will seek to extend the freeze remains to be seen, but the new governor has expressed her intention to seek continued tenant protections. One wrinkle is that a central portion of the law, which allows tenants to “self certify” their financial hardship, was struck down by the United States Supreme Court on August 12, 2021. The rest of the law remains in effect, but as a practical matter, the Supreme Court’s decision may permit landlords to proceed to court and require evidence of the tenant’s financial status before eviction can be stayed.

Also relevant are the federal efforts to freeze evictions. In September 2020, the Centers for Disease Control and Prevention (CDC) issued a nationwide freeze for most residential evictions. This expired on July 31, 2021, but the CDC has extended it for any county with a high COVID transmission rate – as of now approximately 80% of the counties in the United States.  The CDC’s edict is also being challenged before the Supreme Court.  Although the Court upheld the CDC’s power to issue a temporary emergency order suspending evictions earlier this year, opponents argue that the latest extension goes beyond that mandate.  A decision from the Court is expected in the weeks to come.

Given uncertainty over the eviction freeze, the emphasis in New York is shifting to increasing distributions under Emergency Rental Assistance Program (ERAP). The program has $2 billion to give directly to landlords, but to date, distributions have been inefficient and represent a small percentage of available funds. The program requires that undistributed funds be returned to the federal government unless 65% of the funds are distributed by September 30, leading to pressure to accelerate the process.

The various deadlines and legal challenges have created a certain amount of confusion and unpredictability. Both tenants and landlords should keep abreast of developments and consult counsel if appropriate.

This article is intended only as a general discussion of these issues. It is not considered to be legal advice or relied upon in regard to particular legal matters. If you seek assistance with a particular employment law or labor law matter, please contact RPJ Partner Alice Jump to discuss. Attorney Advertising.