Data Update: Analysis Of Renters At Risk As Eviction Moratorium Expires
This post has been updated to reflect court guidance issued on Sunday, January 16.
On January 15, the COVID-19 Emergency Eviction and Foreclosure Prevention Act (“CEEFPA”) expires in New York State. Despite the existence of CEEFPA and additional tenant protections that include the COVID-19 Emergency Rental Assistance Program (“CERAP”) and the Tenant Safe Harbor Act, there was never a complete moratorium on eviction cases proceeding through the New York City Housing Court. Rather, since the New York City Housing Court began to accept new eviction filings again on June 20, 2020, certain types of cases moved forward despite a complex intersection of Local, State, and Federal protections. To detail the more immediate implications of these lapsing regulatory protections, in this post, we summarize key data that offer insight into the volume and nature of eviction cases, explain how eviction cases have proceeded through the courts to the stage where tenants have outstanding warrants for eviction, and review the current status of the three principal tenant protections. This post closes with a summary of our findings and an outline of the legal protections available to tenants with warrants for eviction after the moratorium lapses.
There are currently three laws staying, or temporarily halting, evictions for tenants in New York City: the COVID-19 Emergency Eviction and Foreclosure Prevention Act (“CEEFPA”), the COVID-19 Emergency Rental Assistance Program (“CERAP”), and the Tenant Safe Harbor Act. These will each be explained in more detail below. For the purposes of our analysis, it is crucial to understand that despite these three laws, eviction proceedings have continued to move through the courts resulting in cases in which owners have already obtained a warrant of eviction. If a tenant failed to appear in court, or if they did not serve the property owner with a hardship declaration per CEEFPA or did not file an application for rental assistance per CERAP, the eviction proceeding may have been permitted to proceed. There are also tenants whose cases were filed prior to the pandemic who faced imminent eviction before court processes were shut down.
In prior analysis we did in September 2020 and December 2020 on housing court patterns during the pandemic, we focused on eviction filings. In this post we focus most of our analysis on warrants for eviction and possessory judgments because they are indicators of a more immediate risk of eviction. A warrant of eviction is the legal document that allows a marshall to remove a tenant and their possessions from an apartment. A possessory judgment is a decision by a housing court judge that awards the building owner the right to an apartment. Once a building owner has won a possessory judgment, they may request that the court issue a warrant of eviction.
As of Tuesday, January 18, 2022, building owners with a possessory judgment from prior to September 2, 2021 will be able to file motions with the court requesting a court date to seek a warrant of eviction for tenants whose cases are not stayed. Eviction cases filed since the start of the pandemic may proceed, including marshalls executing warrants of eviction, but building owners must make a motion to the court before they will issue a default judgment or warrant where the tenant has not appeared.
Analysis of Eviction Filings
In order to offer an analysis of the tenants more immediately at risk of eviction, we consider four categories: (1) possessory judgments in place prior to March 17, 2020; (2) warrants of eviction that were issued prior to March 17, 2020 but never executed (unexecuted warrants), (3) possessory judgments issued during the eviction moratorium period, and (4) warrants that were issued during the eviction moratorium period. It should be noted that these figures do not account for tenants who will or have moved out prior to a marshall executing the warrant or will or have been illegally locked out.
Prior to the pandemic (defined here as March 17, 2020), eviction cases proceeded as usual until they were interrupted by the first moratorium. Cases filed before the pandemic that had already resulted in a possessory judgment but had not yet executed a warrant of eviction are likely to be some of the first households at risk of eviction. Our data includes all cases filed after 2016, so it likely contains all cases before the court at the time of the first moratorium. Not all possessory judgments lead to a warrant and not all issued warrants are executed, so it is unclear how many cases decided before the pandemic would now continue. However, there is a higher likelihood that a decision reached right before the pandemic will continue than a decision reached several months before the pandemic without any subsequent actions. For that reason, we present a table of monthly totals leading up to the pandemic to estimate how many tenant households are in this group.
| Possessory Judgments | Unexecuted Warrants | |
|---|---|---|
| Nov 2019 | 5,364 | 3,705 |
| Dec 2019 | 5,513 | 4,461 |
| Jan 2020 | 7,005 | 4,768 |
| Feb 2020 | 5,396 | 4,757 |
| Mar 2020 | 3,380 | 3,455 |
After the initial shutdown of the courts, the patchwork of programs and regulations allowed some cases to move forward. Since March 17, 2020 (through the most recent data update of January 9, 2022) there have been 78,652 new eviction filings. From these cases, and the cases filed before the pandemic, there have been 1,444 new possessory judgments resulting in 861 warrants.
The first case type that continued to proceed through housing court was an eviction case filed prior to March 17, 2020 where the court had already ordered that the owner had a right to the apartment (possessory judgment), or even issued a warrant but had not yet evicted the tenant. The high-end of our estimate for this group (the cumulative total from November 2019 to March 17, 2020) is 26,658 possessory judgments and 21,146 unexecuted warrants. On August 12, 2020, the New York City Civil Court issued a directive which authorized owners to seek warrants of eviction in cases where judgments for possession were issued prior to March 17, 2020 provided they notified the tenant and had a court hearing. A new directive issued on August 16, 2021, reaffirmed the owner's right to seek warrants based on pre-March 17, 2020 judgments for possession.
There are three other case types that have proceeded during the moratorium. The first additional case type that has proceeded through the courts is a default judgment (default), which occurs in an eviction matter where a party failed to appear. The court has treated defaults differently depending on whether parties had previously appeared and ceased to appear as compared with new filings where a tenant may never have come to court. On June 20, 2020, the housing courts began accepting new eviction filings. Initially, building owners were not permitted to seek default judgments in these newly filed cases if the tenant did not appear. However, for the cases when both parties had appeared prior to March 17, 2020, the court was permitted to proceed with defaults against tenants if they did not appear as of August 12, 2020 per DRP-213. As of September 2, 2021, the housing court was again permitted to issue defaults in cases filed since June 20, 2020, after a hearing in cases where the issue was not joined and a tenant had not filed an answer, appeared, nor served a hardship declaration or filed an emergency rental assistance application.
The second additional case type that has proceeded during the moratorium is an eviction case in which the tenants and building owners were both represented by counsel and consented to the proceeding continuing before the court. The third additional case type is when a tenant has been accused of infringing on the rights of their neighbors or presenting a danger on an ongoing basis whether or not a tenant served a hardship declaration or an emergency rental assistance application.
Even in cases where no warrant has been issued, neither CEEFPA or CERAP have completely halted proceedings. As of September 21, 2021, in each borough the Office of Court Administration (“OCA”) has created Intake Parts where tenants with newly filed eviction proceedings have appearances before their case is assigned to a legal services attorney and can proceed to a Resolution Part. Since June 20, 2020, 78,652 cases have been filed in the New York City Housing Court. These cases may have then been stayed by the service of a hardship declaration or the submission of an emergency rental assistance application, but are poised to commence again after January 15, 2022. Further, on January 10, 2022, OCA announced they were creating a Small Property Part, for properties where the individual suing for eviction lives at a one-, two-, or three-family property from which they are seeking to evict a tenant, meaning some of those cases may proceed at a different pace.
Principal COVID-19 Tenant Protections
In this section, we further detail the three laws staying, or temporarily halting, evictions for tenants in New York City: the COVID-19 Emergency Eviction and Foreclosure Prevention Act, (“CEEFPA”), the COVID-19 Emergency Rental Assistance Program (“CERAP”), and the Tenant Safe Harbor Act.
The law that expires January 15, the COVID-19 Emergency Eviction and Foreclosure Prevention Act (“CEEFPA”), was signed into law on December 28, 2020. CEEFPA provided that eviction proceedings would be halted for most tenants who submitted a hardship declaration to the building owner. Qualifying hardships include an inability to meet expenses for the current apartment or relocation due to the COVID-19 pandemic, as well as risk of severe illness or death to a family member due to their age, disability, or underlying medical condition. CEEFPA’s hardship declarations applied to tenants whose eviction cases were filed before or after the start of the pandemic. However, owners were permitted to proceed with filing eviction cases where they alleged that a tenant infringed on the rights of their neighbors or presented a danger on an ongoing basis. In August 2021, the U.S. Supreme Court prohibited the enforcement of CEEFPA’s hardship declaration eviction protections on the grounds that they violated building owners’ due process rights. In response, Governor Kathy Hochul signed into law an amendment to CEEFPA that created a hearing process for owners to challenge the hardship declarations and extended the use of hardship declarations until January 15, 2022. Up until today, January 15, 2022, if a tenant served the owner of their apartment with a hardship declaration and the owner did not successfully challenge that hardship declaration in court, no judgment could be issued or warrant executed against that tenant.
The second law presently staying eviction proceedings for some renters in New York State is the COVID-19 Emergency Rental Assistance Program (“CERAP”). The U.S. Congress passed two rental assistance packages, the Consolidated Appropriations Act of 2021 on December 28, 2020, and the American Rescue Plan of 2021 on March 11, 2021, allocating approximately $2.3 billion in rental assistance to NYS. The New York State legislature passed CERAP, creating the rules and process by which NYS would begin distributing this federal rental assistance money starting on June 1, 2021. One provision of CERAP states that tenants’ eviction proceedings are stayed after the tenant submits a rental assistance application by phone or through the Office of Temporary and Disability Assistance’s online portal, until they find out whether they were approved or denied. As with CEEFPA, tenants accused of infringing on the rights of their neighbors or presenting a danger on an ongoing basis are not protected. On November 14, 2021, New York State closed the portal allowing tenants to apply for emergency rental assistance, having pledged all funds allocated by the federal government. However, prompted by a lawsuit initiated by the Legal Aid Society, on January 6, 2022 a New York State Supreme Court judge issued an order reopening the portal. As of January 11, 2022, tenants may submit emergency rental assistance applications on the Office of Temporary and Disability Assistance’s website or by phone. Although presently unfunded, the filing of a pending application does temporarily stay eviction proceedings for applicants. New York State will learn whether the federal government has allocated additional funds for emergency rental assistance in March 2022.
The third relevant law is the Tenant Safe Harbor Act, signed into law by Governor Cuomo on June 30, 2020. The Tenant Safe Harbor Act allows building owners to file eviction cases in the New York City Housing Court for rental arrears, but does not allow the court to issue a possessory judgment based on rent owed for the covered period, which is presently defined as between March 7, 2020 and January 15, 2022, for tenants who suffered a financial hardship due to COVID-19. Instead, owners may only seek a money judgment for that amount. However, any money owed prior to March 7, 2020 or after the covered period ends may provide owners with a basis for eviction. There is pending legislation seeking to extend the covered period until April 15, 2022.
The Tenant Safe Harbor Act interacts with CEEFP and CERAP in two relevant ways. Although the service of a hardship declaration under CEEFP will no longer stay evictions as of today, service of the hardship declaration will notify owners that a tenant may be entitled to protection from a possessory judgment pursuant to the Tenant Safe Harbor Act. It is also important to note that owners who accept the CERAP emergency rental assistance funds cannot evict tenants for non-payment for the same period covered by the Tenant Safe Harbor Act, but could accept the the rental assistance funds and still evict tenants for rent debt accrued outside the covered period of March 7, 2020 through January 15, 2022.
Conclusion
Based on our findings, as the eviction moratorium lapses, there are a range of tenants with eviction cases filed prior to the pandemic shut down who are at most immediate risk of eviction. Two case outcomes of particular concern are possessory judgments and unexecuted warrants. In the most immediate term, we provide a high bound estimate of 28,102 possessory judgments and 22,007 warrants issued, including eviction cases filed in the four months prior to March 17, 2020 and since March 17, 2020 (through the most recent data update of January 9, 2022). In addition, there have been 77,208 new eviction filings since March 17, 2020 where neither a possessory judgment nor a warrant of eviction has been issued.
After January 15, 2022, the legal channels available to tenants seeking to halt and eviction will become much narrower.
First, now that the Office of Temporary Disability Assistance (“OTDA”) portal is reopened, tenants who have not yet applied for rental assistance may submit an application and notify their landlord and the court of the pending application. This should stay an eviction provided the court has notice of the application. However, if OTDA has already denied a tenant’s application or granted it, but the emergency rental payment has not covered their arrears, they will not enjoy the benefit of the stay and may be at risk of eviction.
Unlike the CEEFPA hardship declaration or the CERAP emergency rental assistance application, the remaining procedural steps available to tenants with an outstanding warrant will require them to proactively go and file motions called Orders to Show Cause in the housing court. New York City-based tenants would most likely need to proceed in person to their borough housing court. In housing court, they may qualify for free eviction legal services, which are now available to all income eligible tenants across New York City as of May 2021 based on the Right to Counsel Law. Even if a tenant does not qualify for a free attorney, they may file an Order to Show Cause seeking a court order delaying any eviction until a judge can hear their case. None of the remaining procedural mechanisms available to tenants to seek to halt an eviction as of January 15, 2022 are a guarantee. While the court has the authority to reverse a default judgment and agree to hear a tenant’s case or grant a stay of eviction of up to one year, those decisions are discretionary based on the specific circumstances of a given tenant. Even if a tenant has been evicted by a marshall, they may go to a housing court and ask the judge to order that they be allowed back into their apartment.
Tenants’ ability to pay back due rent or their ability to show they have applied for assistance may impact a judge’s decision. In addition to CERAP, there may be funds available to tenants through New York City colloquially known as OneShot Deals, rental subsidies through the CityFHEPS program, state level funding through FHEPS, as well as private donations.
Finally, building owners are still required to seek warrants before evicting a tenant. It is illegal for building owners to use self-help tactics like changing the locks or removing tenants' items from an apartment. Only a marshall with a warrant issued by the court may do this. Tenants who have been illegally locked out may call the police to seek assistance in regaining entry to their apartment and go to the borough housing court to seek an order from the court requiring the owner to restore them to their apartment.
