COVID-19 | A Tenant’s Guide into the Unknown
What you need to understand eviction, rent, and contracts in this time of uncertainty, courtesy of Tin-Fu (Tiffany) Tsai, Esq.
In response to the COVID-19 crisis, New York Foundation for the Arts (NYFA) and the Pro Bono Steering Committee of New York State Bar Association’s Entertainment, Arts and Sports Law Section (EASL) are collaborating to offer a series of free online workshops to support creative communities. This post draws insights from a webinar led by Tin-Fu (Tiffany) Tsai, Esq., Co-Chair of EASL’s Pro Bono Steering Committee, that addressed questions including: Can my landlord evict me? Do I need to pay rent? and What strategies can I use when negotiating with my landlord?
Please note that this article is a guide, and is for general informational purposes only. It does not provide any specific legal advice nor create an attorney-client relationship.
When Negotiating with Your Landlord
- Before speaking, prepare and read the fine print.
- Talk to your landlord early. Don’t just wait for them to reach out. Landlords will always prefer to keep a good tenant, so work with them.
- Be creative: think and speak long-term when considering your options. Offer whatever you can, considering rent forbearance, rent reductions, and rent deferments as potential tools. You could offer to extend your lease to account for money lost during reduced or deferred rent.
- Put the agreement in writing, for future reference and for the purpose of evidence if needed.
What follows is what you need to know specifically about eviction, rent, and contracts in order to have these conversations.
What You Need to Know: Eviction
If you have a lease, you can only be evicted if your lease is up, you owe rent, or you have seriously violated your lease. Your landlord cannot evict you without advance notice, which is 30 to 90 days based on the length of your lease term if the lease is up or 14 days for owed rent.
The landlord cannot evict you without going to the court first, which requires them to file a petition to start the court proceeding. The tenant has the right to ask the court to postpone the case for at least 14 days if they are not ready for it.
After the landlord gets a judgment, the landlord must give the Court Clerk a warrant of eviction. After the warrant of eviction is signed, the landlord needs to hire a Marshal, Sheriff, or Constable to take steps to evict the tenant. They will give you at least 14 more days to move. Moreover, the eviction must take place on a business day, during the day. One way to stop the eviction is by paying the full amount of rent due to the court before the eviction is executed.
In New York State, Governor’s Order No. 202.8 instituted a 90-day eviction moratorium. Courts stop accepting eviction filings but continue to address essential cases. Marshals/Sheriffs may not evict until further notice. Note that the stay was extended for another 60 days through mid-August and banned late fees for missed payments during the moratorium.
On the federal level, the Coronavirus Aid, Relief, and Economic Security (CARES) Act imposes a 120-day moratorium on eviction filings and charging fees for non-payment of rent for most of the affordable housing properties. The landlord may not ask a tenant to vacate for any reason without a 30-day notice, which cannot be issued during the 120-day period.
Properties covered under the CARES Act include those participating in the federal assistant program or subject to federally backed mortgage loans. Check your lease documents to see if this includes your property.
What You Need to Know: Rent
Do I have to pay rent right now? The short answer is yes: the eviction moratoria do not excuse tenants’ duty to pay rent. After it ends, tenants who do not pay may still face financial and legal liabilities.
So far, Governor Cuomo’s actions suggest that he feels the eviction moratorium is sufficient in and of itself. There remain proposed rent cancellations such as the below, but none have been passed yet.
- New York State Senate Bill 8125A, which was introduced on March 23, 2020, proposes cancellation of rents for 90 days for individuals and small businesses
- The Rent and Mortgage Cancellation Act, which was introduced on April 17, 2020, proposes a nationwide cancellation of rents from March 13, 2020 and would last for a year. This is only for primary residences, no double-dipping on multiple properties.
New York City also provides rent freeze programs for seniors and tenants with disabilities who qualify to have the rent frozen at the current level and be exempt from future rent increases. All details on rent freeze are available on the Department of Finance’s site.
For market-rate tenants, landlords can ask tenants to pay more but should give up to 90 days notice if rent increases over 5%.
A rent payment is late only when received more than five days after it is due, and the landlord must provide written notice for late fees.
The amount of late fees is limited to $50 or 5% of the monthly rent, whichever is less. People who live in properties covered by the CARES Act cannot be charged late fees for 120 days starting from March 27, 2020.
What You Need to Know: Contracts
A force majeure is an event that prevents someone from doing something that they agreed to do. This can include acts of nature, acts of man, and anything unforeseen, and is a contractual provision that is interpreted narrowly by New York courts.
Whether COVID-19 qualifies as a force majeure event is case-by-case and depends on the terms of your contract, and it must be proven that failure to perform is specifically caused by the pandemic.
Impossibility is a common law defense that applies to an unforeseeable non-performance of a contract, and means that something is objectively impossible. For example, if one’s lease for a building where a business operates demanded that they operate continuously, the mandated shutdown of businesses would make COVID-19 a trigger of impossibility in court.
Economic hardship is usually not enough by itself to invoke the doctrine of impossibility.
Constructive Eviction is when a landlord doesn’t physically evict a tenant but takes action that substantially interferes with the tenant’s use and enjoyment of the premises. For example: failure to provide heat in the wintertime or barring tenants from the premises.
Most leases include provisions that require tenants to pay rent even when the landlord isn’t providing certain services. In order to prove that constructive eviction has taken place, tenants need to demonstrate a wrongful act on the landlord’s part.
About Tin-Fu (Tiffany) Tsai, Esq
Tsai has in-house and law firm experience both in the U.S. and Taiwan. Currently, she leads the legal department of Arris Properties Group LLC, a New York-based real estate development company, and advises on various transactional and litigation matters. A Co-Chair of the Entertainment, Arts and Sports Law (EASL) Section of the New York State Bar Association, Tsai is excited to combine her passions in art and law by helping professionals in the creative world navigate legal issues and use regulations to their advantage.
– Recap Authored by Kyle Lopez, REDC Fellow
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Image: Rachel Granofsky (Fellow in Photography ’19), Reno (Guts), 2016, pigment print and painted wood frame