Supreme Court Limits CEEFPA: Which Eviction Protections Remain?

On Aug. 12, the country’s highest court sided with a group of New York owners who challenged the state’s COVID Emergency Eviction and Foreclosure Prevention Act (CEEFPA). The CEEFPA was signed into law in December 2020, effectively freezing nearly all evictions in the state. In the recent decision, the Supreme Court struck down an important component of New York's eviction moratorium. The order blocked the provision that allowed tenants to suspend eviction proceedings where they self-certify through a hardship declaration that they experienced a financial hardship during or due to the COVID-19 pandemic.

The Court’s order explains that it applies to tenants who’ve submitted that hardship declaration form to stay out of housing court. The ability to self-certify financial hardship “generally precludes a landlord from contesting that certification and denies the landlord a hearing.” The Court’s conservative justices in the 6-3 ruling ruled that the “scheme violates the Court’s longstanding teaching that ordinarily ‘no man can be a judge in his own case’ consistent with the Due Process Clause.”

How Eviction Cases Will Proceed

On Aug. 17, New York Chief Administrative Judge Lawrence Mark issued a memo that informs how cases will now proceed in light of the Supreme Court's decision. The memo reiterates that there's no automatic postponement of an eviction proceeding where a tenant delivers a hardship declaration to the owner or court. Also, the memo directed the court to begin restoring stayed or postponed proceedings to the court's calendar.

However, the memo reminds that courts must "determine if a proceeding continues to be stayed pursuant to existing state statutes and federal moratoria." Therefore, a tenant's risk of eviction in the near term will depend on factors that include when a case was filed.

Tenant Safe Harbor Act. The Supreme Court's decision specifically noted that the Tenant Safe Harbor Act (TSHA) still applies to residential evictions in New York. The TSHA is a NYS law that was enacted on June 30, 2020. The law gives tenants the possibility of having certain protections against eviction for unpaid rent. Tenants facing eviction for nonpayment of rent must prove financial hardship in court, and show that they experienced the hardship during the “covered period.” A tenant who successfully proves hardship may be able to stay in the apartment.

The statute defines the COVID-19 covered period as from March 7, 2020, until “such date when all Executive Orders have been expired or rescinded and none of the provisions that closed or otherwise restricted public or private business or all non-essential gathering in the county of the tenant's or lawful occupant's residence.” The memo notes that the governor ended the statewide state of emergency on June 24, 2021.

A judge would decide in a nonpayment case whether the tenant has proven her financial hardship and if that hardship sufficiently falls within the covered period. Tenants awarded the ability to stay in their apartment would still be responsible for rent debt. This unpaid rent would become a “non-possessory” judgment.

CDC eviction moratorium. The federal Centers for Disease Control (CDC) moratorium prevents owners from evicting tenants who live in counties with high COVID transmission rates. Currently, this covers all of New York City for nonpayment of rent.

To get protection, tenants must submit a sworn declaration admitting that they owe rent but saying they have suffered COVID-related financial hardship, have tried to get government assistance, including New York's Emergency Rental Assistance Program (ERAP), and would be homeless if they’re evicted. The protection from eviction lasts until Oct. 3, 2021.

Emergency Rental Assistance application. Tenants with pending applications for federal rent relief through the state's $2.2 billion Emergency Rental Assistance Program are also protected, Judge Marks said.

New Governor and State Legislature Respond

Following the Supreme Court's decision to limit the CEEFPA, incoming governor Kathy Hochul said she would quickly address the top court’s decision and work to strengthen the state’s moratorium. "No New Yorker who has been financially hit or displaced by the pandemic should be forced out of their home. As NY's next Governor, I look forward to working with the Legislature to quickly address the Supreme Court's decision & strengthen the eviction moratorium legislation," Hochul stated in a tweet.

Hochul will be assuming office one week before the state’s eviction protections expire. After she takes office on Aug. 24, she can call the state legislature back into session to vote on moratorium legislation. State Senator Brian Kavanagh said he planned to “draft and enact legislation to shore up the moratorium in a manner that is consistent with the constraints the court articulated.” And Senator Alessandra Biaggi and Assembly Member Yuh-Line Niou have introduced a bill to extend eviction protections through the end of October.

“The failure of the Emergency Rental Assistance Program to properly distribute funds and the surge of the Delta variant has put the livelihoods of many New Yorkers at risk. With the eviction moratorium set to expire Aug. 31 and little COVID-19 rental assistance distributed, many New Yorkers who still owe rental arrears are fearful of losing their homes come Sept. 1. We cannot let hundreds of thousands of New Yorkers risk homelessness due to the negligence of our own government. The Executive has failed New Yorkers, and the Legislature must reconvene to deliver for the people that we were elected to serve,” stated state Senator Alessandra Biaggi.

This proposed legislation extends the COVID-19 Emergency Eviction and Foreclosure Prevention Act of 2020 and the COVID-19 Emergency Protect Our Small Businesses Act of 2021 until Oct. 31, 2021. These protections are currently set to expire Aug. 31, 2021. The legislation would provide the following protections:

Eviction. Under this bill, eligible residential and commercial tenants would continue to receive relief from eviction if they submit a hardship declaration form to their landlord or a court. In submitting the form, residential tenants must attest that they have experienced financial hardship due to the COVID-19 pandemic that prevents them from being able to pay their rent in full or move or if someone in the household is at increased risk of severe illness from COVID. Commercial tenants must attest that they have lost income as a result of COVID, had a significant increase in moving expenses, or are unable to relocate due to the cost of moving expenses. Additionally, all tenants must attest that any government assistance they’ve received, including rental assistance, doesn’t fully make up for lost income.

Foreclosure and tax lien sales. Homeowners, small landlords who own 10 or fewer units including their own dwelling, and eligible commercial property owners and mortgagors will continue to receive relief from foreclosure or tax lien sales by submitting a hardship exemption form, following a similar procedure as tenants.

Federal Appeals Court Upholds CDC's Eviction Moratorium

On Aug. 20, the U.S. Court of Appeals for the District of Columbia rejected a bid by Alabama and Georgia landlords to block the eviction moratorium reinstated by the Centers for Disease Control and Prevention (CDC). After the decision, the landlords filed an emergency motion hours later with the Supreme Court. The CDC's new moratorium, issued on Aug. 3, stops owners from evicting tenants for nonpayment of rent until Oct. 3, 2021, in counties where rates of COVID transmission is high. This is currently true for every county in NYC.

In June, the Supreme Court voted 5-4 to allow the moratorium to continue through the end of July. But Justice Brett Kavanaugh, who joined the majority, warned the Biden administration not to act further without explicit congressional approval. President Biden has acknowledged there were questions about the legality of the new eviction freeze. But he said a court fight over the new order would buy time for the distribution of some of the federal rental assistance that has been approved but not yet used.

In urging the appeals court to keep the ban in place, the Biden administration noted that the new moratorium was more targeted than the nationwide ban that had lapsed, and that the landscape had changed since the Supreme Court ruling because of the spread of the highly contagious Delta variant.

TAKEAWAYS

• Tenants can no longer merely fill out a hardship declaration for eviction protection.
• There are still some COVID-related eviction protections that may still apply.
• The Tenant Safe Harbor Act may protect a tenant from eviction if the tenant can prove COVID-related financial hardship from March 7, 2020, to June 24, 2021.
• A tenant may still invoke protection from eviction through the federal CDC moratorium.
•  New York's Emergency Rental Assistance Program offers eviction protection while waiting for an application to be processed.