After the long haul through the eviction moratorium and other pandemic-related restrictions, landlords and property owners are ready to get back on track with life as we knew it in the housing business. Unfortunately, this is not yet the case.
Several moving parts seem to contribute to a housing court system in New York City that is still stuck in slow motion – with 70,000 cases in backlog, reports The Real Deal, citing the Legal Aid Society. The Real Deal also writes that landlords are suing for eviction at a slower rate than they did before COVID-19 and that housing court officials are more often requiring in-person participation for the parties and their legal representatives.
Factor: Tenant right to counsel
A 2017 NYC law requires low-income tenant accessibility to legal counsel, causing continuances for tenants to find lawyers. Unfortunately, media sources are reporting that the legal aid and public defender offices that provide those attorneys are not staffed for this explosion in clients, adding even more time to the court process.
Factor: Stays for emergency assistance application processing
A major contributor to the delays in housing proceedings has been the state Emergency Rental Assistance Program (ERAP). A tenant’s filing of an application for rent assistance generates an automatic ERAP stay of eviction pending the resolution of the application. Applications have taken months to process at least in part due to lack of adequate funding. During those months, property owners may not proceed with evictions.
The ERAP website was updated July 21 to say that applications through June 30 are now being processed because of new state funding. Tenants whose applications are denied will presumably have their stays of eviction lifted, allowing property owners to proceed with those cases.
Some property owners have successfully asked the court to vacate ERAP stays, but not all judges see it the same way as others have denied such requests. According to a review of such motions by Law360, judges are more often lifting stays in holdover cases or in those without formal leases (whose tenants may actually be squatters), rather than in nonpayment cases. At least one judge has raised constitutional concerns, saying that a property owner has a due process right to fight an ERAP stay. Another judge vacated the stay when the landlord said they only wanted to repossess the rental premises but were not seeking to collect the past due rent.
Takeaway
Of course, the pandemic and other societal challenges of the past couple of years have impacted landlords and property owners financially.
As our partner Todd Nahins wrote in the newsletter New York Apartment Law Insider, the current issues in local housing courts present challenges that require “strong advocacy” to get to justice. He advises property owners to be physically present in court, to show up prepared for trial and to be patient with court personnel.
We are keeping a steady eye on the situation at NYC housing courts to understand how to continue to protect our landlord-clients’ interests in that crucial forum.
