In the United States, nearly 1.4 million people per year spend time in a shelter, and there are more homeless people than the population of some rural states. For those living in city centers, it is an unignorable issue. A home is a foundation on which people build their lives—losing the place you call home can have serious impacts on one’s ability to obtain financial stability and can have impacts on one’s mental health. When the COVID-19 (“COVID”) pandemic hit American shores, it not only devastated the health of communities but also their financial stability, specifically impacting communities of color more severely.
During the hardest hit months of the pandemic, over fourteen million Americans filed for unemployment. This spike in unemployment meant families lost the ability to financially provide for themselves, and for many of them, the debt of every day expenses, such as rent, began to accumulate. The looming threat of eviction hangs over many of these families who worry that they will be just another homeless statistic.
This piece explores the eviction moratoriums the federal government and the New York state government put in place and analyzes the protections they provide to tenants. It is important to note that any protections offered are temporary. A long-term solution is needed to prevent mass evictions from taking place at some point in the future.
I. New York State Law
On March 20, 2020, Governor Andrew Cuomo signed into law Executive Order No. 202.8: Continuing Temporary Suspension and Modification of Laws Relating to the Disaster Emergency. This order responds directly to eviction proceedings: “There shall be no enforcement of either an eviction of any tenant residential or commercial, or a foreclosure of any residential or commercial property for a period of ninety days.” The language in this order was quite expansive, as it did not differentiate between non-payment versus holdover evictions. A holdover eviction takes place when a lease has ended and the tenant refuses to vacate the property, while a non-payment eviction is filed when a tenant does not pay their rent. This meant that New York did not enforce evictions against its residents. Many tenants groups felt that the order did not go far enough since it only suspended evictions for three months and, even then, it was clear that the pandemic had no expiration date in sight. There was also a glaring problem: what happens when the moratorium ends?
In May 2020, it was clear that the pandemic was not going anywhere and that the original executive order was insufficient to meet the needs of New Yorkers. This first led to Governor Cuomo extending the moratorium until August 20, 2020. The extension still prohibited the “initiation of a proceeding or enforcement” of an eviction, but the language seemed to limit it to evictions that stemmed only from nonpayment of rent. Specifically, the added language is relevant because it seems to insinuate that the moratorium does not apply to holdover evictions. This did not end up having a substantial impact because an administrative order maintained the suspension of all eviction proceedings initiated after March 17.
Tenants Safe Harbor Act
In an effort to bring certainty to New York tenants, the New York State Senate passed the Tenants Safe Harbor Act (“TSHA”) which superseded the previous executive orders passed by the Governor. The act prohibits non-payment evictions of residential tenants who have suffered financial hardship as a result of COVID. Once the pandemic period ends, landlords will still not be able to evict tenants for rent that accrued during the pandemic period. However, they will likely be able to get a money judgement against the tenant, which could have financial implications, such as wage garnishment. The act will help curb the tide of potential eviction orders filed because tenants will be able to use COVID-related financial hardship as a defense against an eviction brought because the tenant owes back rent. This means that a judge would have discretion to decide whether someone actually suffered “financial hardship.” This could lead to inconsistent decisions and uncertainty for tenants when eviction proceedings resume.
In an attempt to bring some clarity and reassurance to tenants, Governor Cuomo expanded on the TSHA through executive order. The order modified the TSHA to prevent evictions for “any residential tenant suffering financial hardship during the COVID-19 state disaster emergency declared by Executive Order 202.” This language created more confusion, as the TSHA applied strictly to nonpayment evictions, while the executive order applies to any residential tenant experiencing financial hardship. The executive order seemed to expand the scope of protected tenants to all residential tenants who are experiencing COVID-related financial hardship regardless of whether the eviction stemmed from the nonpayment of rent. On October 9, 2020, the administrative court released an administrative order which allows for eviction proceedings to resume subject to existing law. In its memorandum, the court acknowledged the inconsistency in the language and stated that it would be resolved through judicial interpretation once cases resume. It is unclear which way the courts will come out on this issue, though tenants facing holdover evictions are undoubtedly in a precarious position and will not have the certainty of knowing that they are safe from eviction at that time.
On December 28, 2020, Governor Cuomo signed the COVID-19 Emergency Eviction and Foreclosure Prevention Act of 2020 , strengthening the TSHA which extended the moratorium on residential evictions until May 1, 2020. Tenants are required to submit a hardship declaration in order to prevent evictions for non-payment of rent. The act also contained a reprieve for homeowners and small landlords facing foreclosure who can file a hardship declaration with their mortgage lender in order to prevent a foreclosure. As with the protection for tenants, the protection for homeowners and small landlords is in place until May 1, 2020.
II. Federal Action
While New York took concrete measures to protect tenants during the pandemic, the same cannot be said of all states. While most states had a moratorium on evictions early in the pandemic, many governors allowed their orders to expire, leaving tenants vulnerable to eviction at a time when the government has asked people to stay in their home to stop the spread of the virus. These inconsistent policies led to the federal government intervening and instituting the CDC moratorium. Like the TSHA, the CDC moratorium only covers non-payment evictions. Therefore, in states without broader moratoriums, some evictions are still able to proceed. A key difference, however, is that the CDC moratorium only requires the tenant to fill out a declaration that states that they have suffered financial hardships due to COVID. Once the tenant delivers the affidavit to their landlord, the landlord cannot bring eviction proceedings against the tenant. However, the landlord can challenge the truthfulness of the declaration. The declaration advantageously does not require the tenant to appear in court to try and convince a judge that they are suffering financial hardships, unlike the requirement of the TSHA.
One of the first acts the Biden administration enacted was to extend the CDC moratorium through March 2021. This is a welcome move for the estimated thirty to forty million renters who were at risk of being evicted if the moratorium lapsed. It is now incumbent on the United States Congress to further extend the moratorium and provide rental assistance in order protect vulnerable renters facing eviction.
Both the CDC moratorium and state moratoriums, though flawed, are a much-needed stop-gap to protect tenants from being evicted during the pandemic. However, they do not stop the inevitable flood of evictions that will take place once the pandemic ceases. In response to this inevitability, several solutions have been proposed. For example, one of the most prominent is the #CancelRent movement, famously championed by Alexandria Ocasio-Cortez. While this is the most attractive solution for tenants, it has many landlords concerned that they will be left holding the bag and unable to keep up with their mortgages.
A less-publicized but more-feasible plan is rental subsidies provided by the federal government to assist tenants who currently owe back rent. Tenants, who have lost their jobs because of COVID, have found themselves in a financial hole with no relief in sight. Even once they find a new job, they will still be saddled with the back rent they owe, and landlords will be looking to resume eviction proceedings. A subsidy would allow tenants to catch up on back rent while also allowing landlords to receive compensation so that they are able to pay expenses. Landlords will be incentivized to accept this subsidy instead of evicting tenants because it guarantees that landlords will receive some revenue for the time of lost rent, and the landlord will still have the option to evict the tenant if they fall behind on rent after the pandemic has passed.
At a time where the government is emphasizing the need for people to stay at home, the last thing state governments should allow is for their constituents to be kicked out onto the streets because they were unable to afford rent. The United States already faces a homelessness crisis and it is crucial that the pandemic does not exacerbate it. Additionally, it is clear that federal government leadership is needed to make sure this does not happen, but states, too, have a role to play. While the protections that New York put in place are not perfect, they are a model for states on how they can protect their citizens during these trying times. While people today are worried about their jobs, health, and family, it is incumbent on state and federal governments to make sure they are not also worrying about losing their homes.
About the Author: Sandile Magagula is a 2L student at Cornell Law School. He is a member of the Tenants Advocacy Practicum and holds a leadership position on the Ithaca Tenants Union Housing Hotline. Before law school, Sandile was a Finance and Operations project coordinator for a large public health NGO. He holds a B.A. in political science from Western Washington University with a focus on international affairs.
Suggested Citation: Sandile Magagula, Evictions Are Coming: An in Depth Look at the COVID-19 Eviction Crisis, Cornell J.L. & Pub. Pol’y: The Issue Spotter, (Mar. 5, 2021), http://jlpp.org/blogzine/evictions-are-coming-an-in-depth-look-at-the-covid-19-eviction-crisis/.