In what has become an all-too-familiar scene, the fate of New York tenants financially impacted by the pandemic facing eviction came down to the wire.
The current protections for residential and commercial tenants (with fewer than 50 employees) were set to expire on Aug. 31. Tensions were high as the U.S. Supreme Court ended the Biden administration’s eviction moratorium on Aug. 26. New Yorkers also were in middle of an administration change following the resignation of former Gov. Andrew Cuomo.
On Sept. 1, the New York State Legislature extended the protections of the Tenant Safe Harbor Act for residential tenants and the Emergency Protect Our Small Business Act of 2021 for commercial tenants through Jan. 15, 2022. New York is one of six states (in addition to Washington, D.C.) that have active eviction moratoriums for residential tenants, and one of two states that have eviction moratoriums for commercial tenants.
Additional protections for landlords were added in the latest round of extensions. A landlord can now challenge a tenant’s claim that they suffered financially from the pandemic. They can also commence eviction proceedings for tenants who are nuisances and/or those who heavily damage their property.
While these measures are meant to provide temporary relief for tenants, the more difficult question is how to address the ever-increasing mountain of rental debt. Currently, estimated rental debt in the United States is about $17 billion, with New York state making up about $2.2 billion of that total.
While rent relief programs have existed for many months, very few have been able to effectively deliver funds to those in need. New York received $100 million dollars in federal aid under the Division of Housing and Community Renewal’s COVID Rent Relief Program. However, the stringent application requirements led to a high rejection rate for this first round of funding, which stopped taking applications in February 2021.
New York state established its Emergency Rental Assistance Program on June 1, 2021. To provide a second round of relief, the state allocated $2.7 billion from state and federal funding. Those who apply are automatically protected from eviction as their application is processed.
According to 2019 census data, Westchester had 261,212 rental households, 155,878 low-rental households and 108,898 low-income, rent-burdened households. Of the $2.7 billion, $20 million has been earmarked for tenants in Westchester. But as of July 30, only 2,277 households in Westchester had applied to the program (under 1% of rental households). The program as a whole is also lagging in distributions. At the end of August, only $203 million or 7% of the fund had been distributed. On Sept. 14, Gov. Hochul announced that number had almost doubled to $399 million, but that still only makes up roughly 15% of the fund.
While moratoriums and rent relief offer respite, these measures are meant as temporary solutions. An additional third component is needed to address long-term issues for landlords who want to avoid turnover costs and vacancies and for tenants to avoid eviction after these temporary programs terminate. To this end, there has been an effort to encourage landlords and tenants to find a path forward by reaching mutually acceptable agreements on past/future rent.
New York has launched several programs to address this component. The New York Forward Small Business Lease Assistance Partnership is a public-private partnership between Empire State Development, the nonprofit Start Small Think Big, and the New York State Bar Association that offers pro bono legal services to commercial landlords and tenants to allow them to renegotiate the terms of their lease.
There has also been an effort to encourage landlords and tenants to participate in mediation. Mediation is a confidential, voluntary process where a third-party neutral aids parties in conflict. Last summer, New York City Mayor Bill de Blasio announced a citywide program to offer mediation services to landlords and tenants. The goal was to address disputes over unpaid rent before the landlord filed in housing court. Many organizations, including Community Dispute Resolution Centers have been tasked to provide these services. However, without a mandate requiring landlords to attend mediation, these programs have been underutilized.
Other programs, such as the City of Philadelphia’s Eviction Diversion Program have found greater success. The program launched last summer and was most recently extended through August 31, 2021. Under this program, any tenant who files for rental assistance is automatically enrolled in the program. Landlords are required to attend mediation with tenants, apply for rental assistance and wait 45 days before filing for eviction.
The success of Philadelphia’s Eviction Diversion Program has offered other cities and states a blueprint to address the needs of landlords and tenants in both the short and long terms. A mandate requiring mediation or assisted negotiation (plans already in place in New York) as part of the process is the best bet for reducing the number of court filings. With court resources already stretched thin, an alternative approach is needed to avoid what some have called a “wave of evictions” after the temporary relief measures expire.
For information on resources available for Westchester residential tenants and landlords, visit https://homes.westchestergov.com/housing-help/emergency-rental-assistance.
For Information on The New York Forward Small Business Lease Assistance Partnership, visit https://esd.ny.gov/new-york-forward-small-business-lease-assistance-partnership.
Danielle B. Shalov is an adjunct professor at the Elisabeth Haub School of Law at Pace University, where she serves as Director of the Representation in Mediation Clinic. She is an attorney and mediator with offices in Rye Brook.