Prior to the new year, New York State enacted the COVID-19 Emergency Eviction and Foreclosure Prevention Act of 2020, which aims to prevent most evictions from proceeding through most of the first half of 2021.
Although the Act is applicable to most eviction proceedings in New York, there is one exception specified, a case based on objectionable conduct, aka a Nuisance Holdover Eviction.
Generally, nuisance is described as a continuous pattern of behavior that deprives anyone of the beneficial use of the premises. In creating a nuisance exception, it is likely that the New York legislators recognize that even though the average New Yorker’s life has changed significantly after COVID-19, objectionable conduct needs to be addressed if it is occurring. This is especially so with people spending more time at home than ever because objectionable behavior may be more likely to affect other tenants in the building than ever before.
The actual Hardship Notice prescribed by the Act specifically states:
“You may still be evicted for violating your lease by persistently and unreasonably engaging in behavior that substantially infringes on the use of enjoyment of other tenants or occupants or causes a substantial safety hazard to others.“
However, that should not mislead either landlords or tenants to believe that the nuisance exception is a blanket exception. The Hardship Notice is still required to be served in all eviction proceedings, including nuisance proceedings. While the stay of a nuisance proceeding is different than most eviction proceedings, it is certainly not guaranteed to be permitted to proceed in the same manner nuisance proceedings went forward before the onset of COVID-19.
First, it should be noted that the Act specifically states that:
“For the purposes of this Act, a mere allegation of the behavior by the petitioner or agent of the petitioner alleging such behavior shall not be sufficient evidence to establish that the tenant has engaged in such behavior.”
To attorneys that practice in this field or any litigators, there is no surprise that the mere allegation is not enough to prove nuisance. However, the New York State Legislature’s attention to this detail is notable in that there is obviously a concern that landlords will use flimsy allegations to manufacture an eviction proceeding which currently can move forward.
The Act further specifies:
“If an eviction proceeding is pending on the effective date of this Act, the petitioner has not previously alleged that the tenant persistently and unreasonably engaged in such behavior, the petitioner shall be required to submit a new petition with such allegations.”
So, the Act specifies that the landlord cannot simply tack on nuisance allegations to a pending proceeding that is not a nuisance proceeding in order to circumvent the stay available.
Finally, in cases where the landlord has obtained a judgment of possession based on nuisance conduct in a nuisance proceeding before the enactment of the Act, the court is still required to hold a hearing to determine whether the tenant is continuing to persist in engaging in unreasonable behavior that substantially infringes on the use and enjoyment of other tenants or occupants, or causes substantial safety hazard to others, before execution of the warrant of eviction.
In active nuisance cases, where a judgment has not been entered, then as stated above, the Hardship Notice is still required to be served. And if it’s not returned, the landlord theoretically is able to proceed prior to May 1 of 2021. However, if it is returned, the statute specifically requires that the landlord establish that the tenant persistently and unreasonably engaged in such behavior to avoid a stay through May 1st of 2021. If the landlord failed to prove that the tenant persistently and unreasonably engaged in such behavior, then the proceeding will be stayed through May 1st of 2021.
The Law Offices of Jordi Fernandez
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New York, NY 10170