The latest eviction ban was supposed to give landowners due process – the ability to challenge a tenant’s claim that the pandemic had made paying rent too difficult.
A month after the new system started, however, lawyers say landlords with bad paying tenants are too timid to test it. And rather than wait for another expiration date and the backlog of cases to follow, some sue in other places for a faster judgment.
Under the ban, which landlords are challenging in court, tenants can seek protection from eviction for non-payment by checking a box saying the pandemic has affected them financially. And landlords can challenge this by signing an affidavit – an affidavit under penalty of perjury – that the tenant’s hardship did not exist.
“But the opportunity to challenge the hardship statement is not really an opportunity, as it always puts the burden on the owner,” said Andrew Wagner, partner at Herrick Feinstein.
If the court finds the tenant’s hardship valid, the landlord would face criminal prosecution, which could theoretically mean a five-year prison sentence.
“The consequences could be serious,” said Martin Meltzer, partner at Belkin Burden Goldman. “So I don’t think owners want to go through this process to experiment.”
Between Wagner, Meltzer and Luise Barrack, head of the litigation department at Rosenberg & Estis, none of the lawyers heard of a case in which a hearing was scheduled to challenge a tenant’s difficulties.
Wagner said his business was exploring ways a landlord could establish proof before signing the affidavit, such as asking the tenant to provide proof of employment or finances.
If they do not provide the information, Wagner said the owner would then have a “good faith basis” to assume that they are unaware of the difficulties they are professing.
âIt could at least get us past the hurdle of signing the affidavit to get us a hearing,â Wagner said.
But beyond this obstacle, there is always the wait.
Meltzer said that while court dates are usually assigned a few weeks after a petition is filed, the backlog is such that the court administration is leaving the dates blank for now. Some cases filed in August have yet to receive an index number, Wagner said.
And even if the court gives the landlord a date before January 15, when the eviction ban is lifted, the tenant could delay the process. Tenants who do not respond to a court summons, or who ask for a lawyer when they show up, trigger an adjournment of the case.
âAs these court-imposed delays occur, we are at the end of the moratorium and that essentially renders the motion moot,â Meltzer said. “And they wasted the money.” (Legal fees, ie.)
To get around the housing court backlog – which lawyers say has also been complicated by staff-draining vaccination requirements – some lawyers are overturning the housing court for the time being and turning to the civil court for obtain pecuniary judgments.
Unlike the landlord-tenant court, which allows a landlord to repossess an apartment, the civil court is “all about the moneyMetzler said.
The lawyer said he had filed hundreds of cases since July and earned payments to his clients ranging from $ 10,000 to a quarter of a million dollars. The easiest wins are against households he knows have the money and choose not to pay, he said.
For example, a family with a $ 1.5 million house in Connecticut had rented an apartment in New York City for $ 21,000 per month.
âA person like that clearly has money in store, at least a few hundred thousand dollars,â Meltzer said.
Civil law is not for all plaintiffs. It usually comes with higher legal fees and a payment limit of $ 25,000. In addition, the tenant in question must have money; otherwise, the judgment may be difficult or impossible to recover. A 25-year-old university graduate whose parents have co-signed her lease is not a good candidate.
But in cases where the tenant has assets, Meltzer has said more often than not that he will serve the complaint and get a call from the respondent within a week, usually asking him to settle the debt.
âThis is a wake-up call,â Meltzer said of the lawsuits. âWe haven’t forgotten you and we are chasing you. “