New york landlords:
what are your current options?
By: Alex M. Neurohr, Esq. (last updated 6/4/2021)
The moratoriums on evictions in New York have now been in place for 15 months. While large landlords may not have experienced immediate consequences from these moratoriums, most small landlords have been enduring a financial pinch for quite some time. Of course, landlords are equally protected from being foreclosed on by the same orders and laws creating these moratoriums; however, this does not mean that landlords can simply forfeit their cash flow. For many small landlords, residential investment properties are part of their livelihood.
In all likelihood, assuming vaccinations continue rising this summer and positivity rates keep falling, the current moratoriums will have seen their final extension (8/31/2021). This is even more likely with increasing political pushback, especially as economic consequences of these moratoriums become more apparent.
So, at this point, what can and should landlords do?
ERAP (EMERGENCY RENTAL ASSISTANCE PROGRAM)
Earlier this week (6/1/2021), the Office of Temporary Disability Assistance began accepting applications through the ERAP. With $2.4 billion in federal funding, many are hopeful that this Program will help remedy the negative financial consequences created by the State’s residential eviction moratorium; however, given the State’s first failed attempt to provide this relief, there certainly remains some skepticism.
Notably, only residential tenants can apply for relief through the Program. Commercial tenants are not eligible and landlords cannot apply for or on behalf of their tenants in arrears. So, for those residential landlords with tenants in arrears, you will have to rely on your tenants to complete this application. To facilitate this process, we encourage landlords to provide their tenants with notice of the Program, including contact information and directions to the application portal (Home Page - ERAP Portal (ny.gov)). Sending this notice may not only get the landlord paid, but could also be helpful during a future legal proceeding (eviction or otherwise) to show the good faith efforts of the landlord to resolve the arrears and, equally, the tenant’s failure to mitigate the past due rent.
Following its first failed attempt to provide rent relief during the pandemic, the State seems to have broadened the scope of eligibility for ERAP benefits. But what if your tenant does not qualify or receive benefits through the ERAP?
New York tenants are responsible for all past due rent, penalties, interest, etc., that accrued during the eviction moratoriums. Currently, landlords may not be able to evict these tenants, but they can certainly pursue a money judgment for all past due rent and other monetary obligations with relative ease. This option may not have made much financial sense during the early months of the moratoriums; however, if your tenant has failed to pay $1,200 per month (a relatively fair number for the greater-Buffalo market) for the past 15 months, you would now be owed $18,000, plus any penalties and interest provided by your lease. What once was a small claim, which many courts were not accepting during the past year, would now be actionable in County Court.
Unfortunately, while perhaps easily obtained, a money judgment is only as good as the debtor’s ability to pay the judgment. So, if your tenant has truly suffered a financial hardship during the past year, you may not be able to immediately collect on this judgment. At the same time, New York judgments are good for 10 years and may be renewed for another 10 years. So, while perhaps not immediately collectible, your tenant may later have resources subject to garnishment and collection.
For landlords of commercial properties and those residential landlords doubting their tenant’s claimed financial hardship (i.e., you have good reason to believe that their employment situation has remained the same throughout the pandemic), a lawsuit may be appropriate, since you could experience some immediate relief; however, for others, this option may seem like another dead end. After all, a money judgment is not an eviction – your tenant will still be occupying the premises. For those, you may want to consider another option – a private agreement with your tenant.
MEDIATION AND PRIVATE AGREEMENT
Statistically, at least some tenants have improperly claimed a financial hardship from the pandemic and withheld rent during the moratoriums; however, it remains to be seen how these cases will be handled. All tenants, truthful or not, are responsible for their past due rent, penalties, interest, etc., that accrued during the moratoriums. Those tenants who are truthful may qualify for assistance through the ERAP, but what about those who haven’t been truthful? These tenants have still reaped the benefit of the moratorium and must still be evicted.
Rather than waiting for the end of the summer (8/31/2021) and, in all likelihood, another several months thereafter, especially following the significant number of pending evictions and petitions to be filed, you may consider a private agreement with your tenant in arrears. Perhaps you have new or prospective tenants, or perhaps you want to sell the property with vacancy. Whatever the reason, upon mutually agreeable terms, your tenant in arrears may be willing to voluntarily leave the premises.
Should you wish to pursue this option, as with taking legal action, it is recommended that you first speak with an attorney to discuss the terms and legal consequences of such an agreement.
Please contact us if you have any questions or wish to discuss these options and other potential resolutions involving your residential and commercial tenants.
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