OTDA Updates ERA Program FAQs, Clarifies Roommate Eligibility

On June 1, nearly two months after lawmakers first created the $2.4 billion rental relief fund, the state Office of Temporary and Disability Assistance (OTDA) launched the online application portal allowing tenants and landlords to apply for rental assistance. At the time, OTDA said applications to the Emergency Rental Assistance Program (ERAP) would be processed in four to six weeks from the date of submission, though the time frame might vary "based upon the completeness of the application, by both the tenant and landlord, and all the correct documentation being submitted."

During the first 30 days of the program, OTDA was prioritizing applications from lower-income households earning 50 percent of AMI that have at least one member who’s unemployed, a veteran, or a domestic violence victim. Now, the money will be distributed on a first-come, first-served basis, with the goal of serving between 170,000 and 200,000 households across the state.

Since the application period opened the program has experienced technical difficulties. However, despite the issues, many applications have been submitted through the portal. According to OTDA’s most recent June summary report, New Yorkers submitted 119,209 applications over the first month, with the 91,457 coming from New York City (the agency says some applications might be duplicates).

Amidst receiving criticism for technical difficulties in the ERAP rollout, the OTDA has updated the program’s FAQs to clarify questions regarding the eligibility and processing of roommates within the program. Here's what you need to know.

Roommate Unable to Pay

If one roommate has been able to pay her portion of the rent since March 13, 2020, but the other roommate hasn’t been able to pay all her rent, the defaulting roommate is eligible for the ERAP if the defaulting roommate's portion of the rent hasn’t been paid and the roommate meets the ERAP eligibility requirements.

The roommate must be able to document her rental obligation. Documentation of rental obligation may include a demonstrated history of rental payments in the form of cancelled checks or bank statements, or other documentation. Payment of any rental arrears will be paid directly to the landlord.

In this situation, the other roommate’s income won’t be counted towards the defaulting roommate's ERAP eligibility. If the defaulting roommate is able to document the amount of rent to be paid monthly, then only the defaulting roommate's income will be counted when determining ERAP eligibility. In other words, the defaulting roommate submitting an application doesn’t need to include her roommate’s income. Payment of any rental arrears the defaulting roommate owes will be paid directly to the owner.

Roommate Covers Unpaid Portion

In a situation in which a roommate paid the landlord in full on the defaulting roommate's behalf, the roommate isn’t eligible for ERAP assistance to repay her friend. Since the friend or roommate paid the rent, there are no longer any rental arrears owed to the landlord.

Defaulting Subtenant

It may be the case that you consented to a sublet arrangement before the pandemic. A tenant left the apartment temporarily before his lease ended and sublet his apartment. A sublet is a rental arrangement in which your tenant agrees to rent his apartment for a specific time period to another person, called a subtenant. Under this arrangement, your original tenant keeps the right to return and reoccupy the apartment when the arrangement ends.

The subtenant is bound by both the terms of the sublease and by the terms of the tenant’s lease with you. Your tenant can enforce the sublease in the same way that you can enforce the lease. If the subtenant violates the sublease, your tenant can sue to evict the subtenant.

An owner has no direct legal relationship with the subtenant. So if a subtenant violates the lease, you must act against your tenant. To avoid a termination of the tenancy, your tenant must then take action against the subtenant.

If a subtenant hasn’t paid the tenant for rent due, OTDA says that if the apartment owner hasn’t been paid also, the current resident or subtenant may apply for ERAP assistance. The applicant will be required to show evidence of a rental obligation, which may include a previously signed sublease or demonstrated history of rental payments in the form of cancelled checks or bank statements. If eligible, the ERAP payment will be made to the property owner. But if the tenant has paid the owner, the subtenant isn’t eligible for ERAP.

Eviction Protections with ERAP

If a roommate receives help through ERAP and pays his share of the rent directly to the owner, the owner must agree to certain terms as a condition of accepting a rental arrears payment. The ERAP payment satisfies the roommate's share of the rental obligation for the time period covered by the payment. The owner agrees:

• To waive any late fees due on any rental arrears covered by the ERAP payment.
• To not increase the monthly rental amount above the monthly amount due at the time of application for ERAP assistance for the months for which rental assistance is received and for one year from receipt of the ERAP payment.
• To not evict the person for whom the ERAP payment is made for reason of expired lease or holdover tenancy for one year from receipt of the ERAP payment. An exception to this requirement will be made if the dwelling unit contains four or fewer units and the property owner or owner’s immediate family members intend to immediately occupy the unit for use as a primary residence.