Landlord Tenant COVID-19 FAQ

COVID-19 Hypothetical Examples and Answers

During construction, the village condemned the landlord’s house as being unstable.  Client ordered to vacate and is living in a hotel.  What are the tenant’s options?

Pursuant to RPP Sec. 235-b, a landlord must warrant that the apartment or house leased or rented is fit for human habitation. This is a warranty of habitability.  Any conditions that would be dangerous, hazardous or detrimental to their life, health or safety constitutes a breach of the warranty. If a house is not livable because of inadequate heat or hot water, if pipes leak, if there are health issues caused by mold, if there are rodents or insects, then the warranty of habitability is therefore breached. With a breach of warranty, a tenant may then sue the landlord for a rent reduction or may even withhold rent.

Client wants to enter tenant apartment for non-emergency repairs. Tenant refuses to wear mask during repair. Does the tenant’s refusal to wear a mask excuse landlord’s warranty of habitability?

A tenant may void the warranty of habitability through his or her improper actions. For example, if a tenant may not claim a breach of warranty if he smashes the hot water heater.

Governor Cuomo has issued an executive order requiring all people to wear masks or face coverings in public and in situations where social distancing cannot be maintained. If a tenant is not wearing a mask, which causes an individual, who wants to make repairs, to not enter the premises, this may void the warranty. The tenant is the one causing the misconduct which in turn, causes harm to other individuals.

Client’s husband who paid all real estate taxes died. Client, who never paid and has no working knowledge of finances, discovered that the county sold its tax lien to a third party. Must the client pay the interest and penalties?

Unfortunately, interest and penalties must be paid if there is a tax lien on the property.

Client entered into an agreement to sell property to individual. Purchaser agreed to pay client over an eight-year period. Upon payment, client would file a deed delivering title to the purchaser. Does purchaser’s failure to make payment during the COVID-19 pandemic excused, tolled, or extended due to the Governor’s orders?

An individual who agreed to file a deed upon payment must commence a foreclosure proceeding upon breach of the agreement (RPAPL §1351(2)). Executive Order 202.8 created a temporary moratorium for foreclosure proceedings. Executive Order 202.67, signed on October 4, 2020, stated that the suspension is effective only until November 3, 2020. However, there may still be a future delay of foreclosure actions during this COVID-19 period.

Client is a tenant under a commercial lease. Husband died due to COVID-19 complications. Landlord notifies client verbally that lease will increase in an amount greater than 5%. May a commercial landlord increase rent more than 5% and if yes, what is the procedure?

Pursuant to law, a commercial landlord may increase rent exceeding 5% upon advanced written notice (41 E. 11th St., LLC v WSIP Realty Corp., 66 Misc 3d 834 [Civ Ct 2020]). The written notice may be sent by certified or registered mail or served pursuant to RPAPL 735.

Are there any continuing protections against residential evictions for COVID-related inability to pay or catch up on rent?

Yes, there is the Tenant Safe Harbor Act, which is a New York State law. Additionally, as of November 4, 2020, as per New York State Governor Cuomo’s Executive Order 202.72, tenants in summary eviction proceedings for nonpayment of rent pending on the date Executive Order was issued have 60 days to file an answer. There is also the “CDC order” issued by the Center for Disease Control and Health and Human Services, which is effective September 4, 2020 through December 31, 2020.

Are there any continuing protections against residential foreclosures for COVID-inability to pay or catch up on rent?

Yes, there is the Tenant Safe Harbor Act, which is a New York State law.

What is the Tenant Safe Harbor Act?

The Tenant Safe Harbor Act is a New York State law that provides certain protections against eviction from COVID-related unpaid rent. A court cannot issue a warrant of eviction for a judgement of possession against a residential tenant who has suffered financial hardship during the COVID covered period for the nonpayment of rent that accrues or becomes due during the COVID-19 covered period.

What is the COVID-19 covered period?

The COVID-19 covered period began on March 7, 2020. The end date for the covered period will be the date that Governor’s “NYS ON PAUSE” executive orders are no longer in effect. As of now, the Safe Harbor Tenant Act is effective until January 1, 2021.

How can I obtain protection from the Tenant Safe Harbor Act?

A tenant facing eviction for nonpayment of rent must raise and prove financial hardship in court as a defense in a summary nonpayment proceeding; show they experienced the hardship during the “covered period”; and that the financial hardship prevented them from paying rent during that period. This is based on the entire household income.

What is considered a financial hardship?

Factors the court considers in determining if there is a financial hardship include:

  • The tenant’s income before the covered period and their income during the covered period

  • The tenant’s liquid assets, such as bank accounts or retirement funds

  • The tenant’s eligibility and/or receipt of public assistance, disability income, unemployment benefits, or benefits under state and federal law

  • A court may also consider if a financial hardship exists if the tenant can show unavoidable COVID-19 expenses, such as medical, hospital, or funeral expenses, even if their income did not decrease during the covered period.

What is not covered by the Tenant Safe Harbor Act?

  • The Tenant Safe Harbor Act is NOT a blanket prohibition on evictions.

  • Also, tenants facing evictions for “holdover” are not covered by the Safe Harbor Act. “Holdovers” include:

    • Tenants who stay past the date of an expired lease or termination notice

    • Month-to-month tenants who are terminated for no reason

    • Tenants who have violated their lease

  • It is important to note the court CAN award a money judgment for rent due regardless of the financial hardship.

  • The Tenant Safe Harbor Act will not apply to rent due and owning before March 7, 2020.

What is the CDC order?

The CDC order was enacted by the Center for Disease Control and the Department of Health and Human Services under Section 361 of the Public Health Service Act and 42 CFR 70.2. It temporarily halts residential evictions to reduce the spread of COVID-19.

Are there any limitations on the CDC order?

Tenants are still required to pay rent under this order, as well as follow the other terms of their leases. This order also does not preclude evictions based on tenants:

  • Engaging in criminal activity at the premises;

  • Threatening the health and safety of other residents;

  • Damaging or posing an immediate and significant risk of damage to the property;

  • Violating building code, health ordinance or regulations relating to health and safety; or

  • Violating any other contractual obligation

  • The CDC order also does NOT apply in places where a moratorium on evictions is in place that provides the same or greater level of public health protections.

What must I do to receive this protection from the CDC order?

You must sign a declaration. The declaration needs to be signed by all the adults listed on the lease, rental agreement or housing contract. The declaration must also be sent to the landlord, not the CDC or Federal Government.

What goes in the declaration?

  • In the declaration, the tenant swears under penalty of perjury that:

  1. Best efforts to obtain government assistance for rent or housing

  2. Expect to earn less than $99,000 ($198,000 for joint tax returns) in 2020, had no reportable income in 2019, or received a CARES Act Economic Impact Payment (stimulus check)

  3. Unable to pay full rent due to

    • Loss of income;

    • Loss of work hours; or

    • Extraordinary medical expenses

  4. Best efforts to make partial payments

  5. If evicted, would become homeless or move into shared housing

  6. Understand they must pay rent or make a housing payment and comply with other tenant obligations

  7. Understand that they may be subject to fees, penalties, or interest for not paying rent on time

  8. Understand that on December 31, 2020 may be subject to eviction if rent is not paid in full.

It is important to note false or misleading statements or omissions made in the declaration can result in criminal and civil actions for fines, penalties, damages or imprisonment.

What are the grounds for eviction?

According to a memorandum issued by Chief Administrative Judge Lawrence K. Marks, effective June 20, 2020, eviction proceedings must include:[1]

  1. An affirmation from petitioner-landlord’s attorney (or from petition if self-represent) that the eviction proceeding complies with all federal, state, and local requirements and is being pursued in good faith;

  2. A notice to respondent-tenant(s) of the opportunity to request an extension.

According to the Tenant Safe Harbor Act, Landlords should consider whether a tenant will be able to successful demonstrate that the tenant suffered a financial hardship during the COVID-19 period. Court shall consider these factors to determine financial hardship[2]:

  1. The tenant’s income prior to and during the COVID-19 period;

  2. The tenant’s liquid assets;

  3. The tenant’s eligibility and/or receipt of public assistance programs.

What does it mean to “rent-gouge”?

 Landlords are prohibited from “rent-gouging” and financially capitalizing on the pandemic. “Rent-gouging” can vaguely defined as charging an unconscionably high rent.[3]   

 According to New York State Criminal Penal Code sections 180.54-57, there are three degrees of rent-gauging:[4]

  1. Third Degree: “A person is guilty of rent gouging in the third degree when, in connection with the leasing, rental or use of real property, he solicits, accepts or agrees to accept from a person some consideration of value, less than two hundred fifty dollars, in addition to lawful rental and other lawful charges, upon an agreement or understanding that the furnishing of such consideration will increase the possibility that any person may obtain or renew the lease, rental or use of such property, or that a failure to furnish it will decrease the possibility that any person may obtain or renew the same.”

  2. Second Degree: “A person is guilty of rent gouging in the second degree when, in connection with the leasing, rental or use of real property, he solicits, accepts or agrees to accept from a person some consideration of value, of two hundred fifty dollars or more, in addition to lawful rental and other lawful charges, upon an agreement or understanding that the furnishing of such consideration will increase the possibility that any person may obtain or renew the lease, rental or use of such property, or that a failure to furnish it will decrease the possibility that any person may obtain or renew the same.”

  3. First Degree: “A person is guilty of rent gouging in the first degree when, in the course of a scheme constituting a systematic ongoing course of conduct in connection with the leasing, rental or use of three or more apartment units, the rental price of which is regulated pursuant to the provisions of federal, state or local law, he solicits, accepts or agrees to accept from one or more persons in three separate transactions some consideration of value, knowing that such consideration is in addition to lawful rental and other lawful charges established pursuant to the provisions of such federal, state or local law, and upon an agreement or understanding that the furnishing of such consideration will increase the possibility that any person may obtain or renew the lease, rental or use of such property, or that a failure to furnish it will decrease the possibility that any person may obtain or renew same, and thereby obtains such consideration from one or more persons.”

What happens if you miss a rent payment due to COVID-19?

According to Executive Order 202.28, a landlord is prohibited from charging fees for missed or late rent payments. With the tenant’s consent, a landlord may use security deposits to cover missed rent payments.[5]

Can your landlord notify other tenants if you test positive for COVID-19?

 “ For purposes of public health and safety, a landlord can post a notice stating that someone within the building has contracted COVID-19 without identifying anyone/apartment units specifically.”[6]

You believe you landlord is discriminating against you because you tested positive for COVID-19, what can you do?

 “Federal, state, and local law, including the New York State Human Rights Law, protects individuals from being discriminated against on the basis of, among other things, a physical, mental, or medical impairment, which may include COVID-19.”[7]

Discrimination claims can be reported here: https://www1.nyc.gov/site/cchr/about/report-discrimination.page

[1]https://www.nycourts.gov/whatsnew/pdf/2020_06_18_15_16_44.pdf?utm_campaign=Membership&utm_medium=email&_hsmi=89823176&_hsenc=p2ANqtz-_EfZ3n5PX0BHQicnUu21iyNSXKPA3Rkrq_4eLHeyXrwUcBYW0gtvXblqOOhQ7yCXUnzCJokUB0_1_gGQTrFdzTvEAHdQ&utm_content=89823176&utm_source=hs_email

[2] https://www.nysenate.gov/legislation/bills/2019/s8192/amendment/b

[3] https://definitions.uslegal.com/r/rent-gouging/

[4] https://www.nysenate.gov/legislation/laws/PEN/P3TKA180

[5] https://www.governor.ny.gov/news/no-20228-continuing-temporary-suspension-and-modification-laws-relating-disaster-emergency

[6] https://www.lexology.com/library/detail.aspx?g=6d6a32aa-eb1e-4abf-ae79-a138784c0fad 

[7] Id.