Eviction Protections in a Pandemic
Written by Caroline Kirk, UNHP Data Analyst
The COVID-19 crisis has caused real economic pain for millions of individuals and families across the United States. Many have lost their jobs or experienced a decrease in income. Worryingly, this has placed many families at risk of eviction when safe housing is more important than ever. Nationally there is fear of an upcoming ‘eviction wave’ that has so far been held off by a patchwork of federal, state, and local moratoriums. The Household Pulse survey, conducted by the Census Bureau to capture “the social and economic effects of coronavirus on American Households” has been asking participants about rent payments; recently, they began asking those who are behind on their rent how likely it is that they will be evicted. According to week 20 (11/25-12/7) data, 56% of New York households making less than $35,000 are very likely or somewhat likely to leave their current home due to eviction.
While that is already a shocking statistic, the percentage of tenants at risk of eviction may be even higher in the Bronx where the median income is $38,000. Even before the pandemic began, 61% of households in the borough were rent burdened - paying 30% or more of their income towards rent. Additionally, the unemployment rate has skyrocketed in the borough due to COVID-19, hitting 25% in July meaning that many households are experiencing a loss of income and, therefore, an increased rent burden. As the pandemic drags on with little to no financial relief in sight, families face the difficult decision of how to allocate their resources. Rent payments are prioritized by most, families want to be as current on their payments as possible, which can cause them to lack funds for other essentials. Throughout the city, the use of food pantries has risen. In April 75% of food pantries reported an increased number of visitors with one-third of those organizations seeing their visitors more than double. In the Bronx, the number of SNAP recipients increased by 69,000 between February and September. Nearly 94,000 applications were received for the COVID Rent Relief Program which originally had an August application deadline. It is telling that despite the increased use of assistance programs so many households are still struggling to stay current with rent.
We wanted to look at what protections NYC tenants have and how effective they seem to be. In order to do this, we looked at data from the Office of Court Administration on the zip code level. We were able to access this data thanks to the work of the Housing Data Coalition - a volunteer driven organization focused on the democratization of housing data. Before this data was made available, the only publicly accessible information on evictions was an open dataset on eviction warrants executed by city marshals.
Total evictions in the city have gone down the past few years as renters have gained increased access to legal representation via the Right to Counsel law and increased protection from strengthened rent laws which were passed in 2019. However, the Bronx has and continues to represent a disproportionate amount of these evictions. According to a report by the New York City Council, in 2018 there were 6,858 eviction warrants executed in the borough, 34% of the nearly 20,000 marshal evictions that were executed throughout the city. The Bronx had the highest rate of evictions per residential units by far, 1 eviction per 79 units. Brooklyn is the borough with the second-highest rate, 1 eviction per 180 units.
Notably, this does not show the full picture of evictions in the city. An actual eviction warrant is only executed in about 10% of evictions. Many times, once a tenant receives a notice of petition - the document that begins eviction proceedings - they move out. Other times, a stipulation, or agreement, is made between the tenant and the landlord setting forth a payment schedule and potentially a date by which the tenant must move out. If the tenant fulfills the agreement, a warrant of eviction will likely not be issued. For this reason, it is useful to look at eviction filings, which the new dataset from the Office of Court Administration allows us to do. For example, while there were around 20,000 eviction warrants executed in 2018, there were 228,003 eviction filings in New York City; 35% (80,082) of those filings were in the Bronx.
Before we jump into the different protections that have been afforded to New York renters, there are a few terms to know.
- Non-Payment Eviction - These are eviction cases where the landlord is moving to evict the tenant(s) due to unpaid rent. In these cases, the landlord is often seeking two types of judgments from the Court. The first is a possessory judgment. If they are awarded one, their right to evict the tenant from the apartment has been affirmed. The second type is a money judgment. These are typically for the amount of unpaid rent and remain in place until they have been fully paid.
- Holdover Eviction - Holdover cases can be brought for a wide variety of reasons. In these cases, the landlord is claiming that the tenant(s) is in violation of their lease and/or is a nuisance. Landlords can also bring a holdover case if they do not want to renew the current tenant’s lease. In some holdover cases the landlord is seeking a money judgment but not always.
- Default Judgement - If a tenant does not reply to the eviction notice within the prescribed time frame, the Court can issue a judgment against the tenant without them having their day in court.
Federally, the CDC Moratorium was recently extended until January 31, 2021. This moratorium protects tenants from eviction due to non-payment. The burden is placed on the tenant to provide their landlord with a sworn declaration stating that they have sought government assistance, make less than $99,000 ($198,000 for joint filers), have suffered a loss in income, and that they would become homeless or have to double up if evicted. The tenant is also required to pay their landlord as much rent as possible for the duration of the moratorium and fees, penalties, and interest are allowed to accrue. Come February 1st, landlords are able to require full payment of any arrears and move forward with eviction proceedings in the case of non-payment.
Some tenants also have eviction protection from the Fannie Mae and Freddie Mac foreclosure and eviction moratorium, which is set to expire on January 31st. Fannie and Freddie back the mortgages on over 3,000 multifamily buildings in NYC - just over 15% of these buildings, containing nearly 23,000 units, are in the Bronx. The Federal Finance Housing Agency has released tools for tenants to search whether or not they live in a building covered by the moratorium.
On the state level, the protections afforded to tenants have been somewhat challenging to follow. Here is a quick recap of what has happened since the pandemic began in March.
On March 13th, Administrative Judge Anthony Cannataro of the New York State Office of Court Administration put forth DRP-205 which prohibited the issuance of default judgements for the foreseeable future as it was unsafe to have large numbers of tenants gathering at Housing Court. He also issued DRP-206. This Directive stated that eviction warrants would not be issued for tenants who could show that they had been negatively affected by COVID-19.
Housing Court effectively closed due to COVID-19 on March 17th with the issuance of Administrative Order 68/20 the day before. All cases, including those where there was an eviction order pending, were suspended. The Order also confirmed that as of March 13th residential evictions in New York City were stayed and no new eviction warrants were to be issued in cases where the tenant had not answered the notice of petition.
On March 20th Governor Cuomo issued Executive Order 202.8. The Order placed a moratorium on the execution of evictions until April 19th. It also tolled the New York state statute of limitations to support the suspension of eviction proceedings asserted in AO 68/20. This meant that Housing Court did not need to meet its normal deadlines. For tenants it meant that they did not need to respond to new eviction filings within the standard time period - 10 days in non-payment cases and on the given court date in holdover cases. Administrative Order 78/20 stating that no new eviction filings would be accepted was issued on March 22nd.
On May 7th, Cuomo issued Executive Order 202.28 set to expire on June 6th. This Order made it possible for tenants to enter into an agreement with their landlord to put their security deposit towards unpaid rent. It also prevented the filing of new non-payment cases against tenants who were eligible for unemployment from June 20th to July 6th. Importantly, it also extended the moratorium on the execution of eviction warrants for tenants in non-payment cases who could prove that they had experienced financial hardship due to COVID-19 to August 20th.
On May 19th, there was a press release stating that the Court had begun to schedule and hear cases virtually, but only those filed before March 17th where both parties - plaintiff and defendant - had legal representation. According to the release “hundreds of conferences [had] already been requested and [were] being scheduled throughout the five boroughs”. It also stated that while in March the Court had been limited to essential matters, non-essential matters had been addressed throughout April. In other words, cases that were in progress before the pandemic were allowed to slowly advance. The release included a quote from Chief Administrative Judge Marks, “This is an important step forward, as we work, in today’s highly challenging environment, to facilitate the resolution of these critical Housing Court matters and promote a fair process for all litigants”.
The Court began a gradual resuming of in-person operations on June 10th. Administrative Order 127/20 was issued on June 18th as Housing Court reopened in a diminished capacity on June 20th. New eviction filings were being accepted, but the Court was going to focus on the large backlog of cases before hearing new ones. Importantly, as the statute of limitations was still tolled, landlords bringing new cases had to advise tenants that they did not need to answer the notice of petition (the document that signals the beginning of eviction proceedings) within the normal timeframe.
Since the Court closure 38,470 eviction cases have been filed.The below map shows the count of these filings by zip code and lists the top 10 zip codes with the greatest number of filings. Eight of the top ten zip codes are in the Bronx. Importantly, less than a quarter of these filings had been answered by tenants as of December.
While the number of filings is significantly lower than previous years, the primary claim amounts - the amount of money the landlord is seeking - are significantly higher. In 2019 between March 16th and December 1st, in non-payment cases where the primary claim value was greater than zero, the median primary claim amount in the Bronx was $2,864. This year that number has jumped to $5,263 - an 84% increase. The graph below compares the monthly median primary claim amounts sought in Bronx eviction filings from 2018 on. The large gap in the 2020 series represents the months within which new eviction filings were not being processed by the Court.
On June 30th, the Tenant Safe Harbor Act was signed by the Governor. The Act prohibits the issuance of eviction warrants based upon rental arrears that accrued due to COVID-related financial hardship. In other words, under the Safe Harbor Act, renters cannot be physically evicted for not paying rent during the pandemic (from March 7th until the last COVID-19 related restriction is lifted). Importantly, landlords are still able to receive a money judgement, an order from the Court requiring the tenant to pay, for unpaid rent within that time period. This leaves tenants who have missed rent due to a COVID-19 related loss of income financially vulnerable when pandemic related restrictions come to an end. The Act did not extend protections to tenants who were facing eviction proceedings prior to March 7th when it was first signed or to tenants facing a holdover eviction.
On July 6th, Cuomo issued Executive Order 202.48. It discontinued the halt on both the enforcement of and the new filing of non-payment evictions against tenants who were eligible for unemployment that had been established in EO 202.28, as the newly signed Tenant Safe Harbor Act superseded it.
On August 12th, Chief Administrative Judge Lawrence K. Marks released Administrative Order 160/20. Eviction cases filed on or after March 17th continued to be suspended. The Order also stated that all cases filed before March 17th, even those within which eviction warrants had been issued, had to meet in front of a judge before they could proceed. However, no physical evictions could take place - in other words, no eviction warrants could be executed - before October 1st. Further information about the handling of the “approximately 200,000” cases filed before March 17th was provided in the Court’s directives and procedures, specifically DRP-213.
In an effort to capture who this Order leaves open to eviction proceedings, we analyzed data made available by the Office of Court Administration on the zip code level. Housing Court data can be confusing, so in order to gain an understanding of what it looks like when a landlord tries to restart eviction proceedings we relied on on-the-ground information from the Legal Aid Society as well as information from the Housing Court calendars. To restart eviction proceedings, landlords are filing one of a variety of motions - to enforce judgements, to restore the case to the court calendar, and to seek a judgement of possession. Since August, motions have been filed to resume 4,258 eviction proceedings - 23% (959) of these are in holdover cases. The majority of these cases are in Bronx zip codes. In fact, seven of the top 10 zip codes with the highest count of motions filed are in the Bronx. Bronxites face high primary claims - the amount of money that the landlord is seeking - in these cases. The median claim amount in the majority of Bronx zip codes is over $3,000. Importantly, these primary claim figures do not take into account further unpaid rent that may have accrued since the original filing.
On September 29th, Executive Order 202.66 was issued. This order extended the protections of the Tenant Safe Harbor Act in scope by loosening the requirements for protection temporarily - all tenants regardless of the type of eviction proceedings and the date on which the proceedings commenced could not have an eviction warrant executed or a judgement of possession enforced against them until January 1st 2021. Importantly, the Order did not prohibit the issuance of warrants and/or judgements of possession against these temporarily protected tenants. In other words, the Court could decide the case in favor of the landlord and put the physical eviction of the tenant on ‘hold’ - stay the execution of the warrant or the enforcement of the judgement - until the 1st. After the new year, the Tenant Safe Harbor Act would once again only protect tenants in non-payment cases who can prove financial hardship due to the pandemic from being physically evicted until the last pandemic related precaution is lifted.
This Order was shortly followed by Executive Order 202.67 on October 5th which extended the tolling of the statute of limitations to November 3rd. This Order was reaffirmed by the Court when DRP-205, which had prohibited default judgements, was rescinded on October 12th.
On November 3rd, Cuomo issued Executive Order 202.72 - likely in an attempt to hold off a large wave of evictions caused by default judgements. Cuomo’s order provides a grace period to tenants who had a petition filed against them before November 3rd - they have until January 2nd to respond. However, tenants who have a petition filed against them after November 3rd must respond within 10 days or become eligible for a default judgement. On November 17th, Administrative Order 268/20 was issued by Judge Marks affirming that default judgements could now be issued.
As of December 15th, there have been 6,732 non-payment eviction filings since November 3rd. The majority of these filings have been in the Bronx. In non-payment cases, the tenant is required to answer the notice of eviction within a set timeframe. Upon the tenant’s answer, the case can then be scheduled for a court date. If the tenant does not answer the notice in time, they become eligible for a default judgement. Only 18% of non-payment cases filed after November 3rd have been answered by tenants. Scheduling works differently for holdover cases - a court date is established with the filing of the notice. In other words, the tenant does not need to answer in order for a court date to be set.
On December 28th, Cuomo signed the COVID-19 Emergency Eviction and Foreclosure Prevention Act. The Act institutes a two-month moratorium of residential evictions. This moratorium can be extended to May 1st if tenants fill out a declaration of hardship (Español). Importantly, rental arrears will continue to accrue meaning tenants, while physically safe from eviction till the expiration of this Act, continue to be financially vulnerable. The Act applies to all pending eviction cases as well as cases filed within 30 days of its passing. In a change, the Act does not restrict COVID-related hardship to loss of income but also extends protections to households with members who are especially susceptible to severe illness from COVID-19. The Act extends protections to tenants facing both non-payment and holdover cases. However, holdover cases where the landlord is alleging that the tenant is a nuisance or hazard to the safety of others are not included.