The COVID-19 Emergency Eviction and Foreclosure Prevention Act of 2020 and COVID-19 Emergency Protect Our Small Business Act of 2020 have both expired on January 15, 2022. This is welcome news as both residential and commercial eviction proceedings may proceed in their normal course, with the prime exception being if a residential tenant has an Emergency Rental Assistance Program (“ERAP”) application still pending, then the proceeding would be stayed pending the determination of the application. Currently, there is no such exception for commercial tenants.
The expiration of the “moratorium” will have the following impact on eviction proceedings:
- There is no longer a requirement for the property owner to send hardship declarations, attach a hardship declaration to predicate notices and demands, nor is it a prerequisite to the commencement of an eviction proceeding;
- All pending residential and commercial eviction proceedings that have been stayed due to the submission of a hardship declaration may now proceed in their normal course;
- All residential and commercial proceedings that could not be commenced due to the submission of a hardship declaration may now be commenced;
- The additional service and filing requirements resulting from the hardship declaration are no longer required.
In light of the expiration of the “moratorium”, the Court has issued a new set of orders and directives. These include the following:
- A motion will still be required to obtain a default judgment and warrant against a tenant;
- A motion and/or a conference must be held to execute a warrant of eviction that was issued prior to March 16, 2020 as well as warrants of eviction that were issued between March 16, 2020 and September 2, 2021;
- If a warrant of eviction was issued after September 2, 2021, no motion or conference is needed in order to execute;
- These directives regarding warrants of eviction do not apply if the tenant is committing property damage or is a nuisance to the other tenants in the building.
In residential cases, the expiration of the “moratorium” leaves the tenant with the protection of a pending ERAP application, as well as the defense arising from the Tenant Safe Harbor Act (“TSA”). The TSA is a defense that must be asserted and proved by the residential tenant that they suffered a financial hardship as a result of the Covid-19 pandemic for rent that accrued from March 16, 2020 through June 15, 2021. If the residential tenant was able to prove this defense, the property owner would be entitled to a non-possessory money judgment for the outstanding rent that accrued during that covered period and the tenant would be protected against eviction for failure to pay those monies. There is no such defense in a commercial eviction proceeding.
It is important that you contact us immediately so that we may take appropriate action on your matter as soon as possible. While it will take some time for the court to get through the backlog of cases that resulted from the “moratorium”, cases will likely be heard on a “first come, first serve” basis. We will be reaching out to you as to the pending matters that we currently have, but it is equally as important to send us the required paperwork so that we can commence any new matters you wish to start.
As always, the attorneys at Borah Goldstein are here to guide you through these tough times and assist you in any way we can. If you have any questions, please do not hesitate to contact us.
