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The tens of thousands of New Yorkers who are behind on their rent were able to breathe a brief sigh of relief this week, when Governor Cuomo signed the Tenant Safe Harbor Act. The law permanently protects tenants from eviction if they have been unable to pay rent because of COVID-19. But there remains more questions than answers from beleaguered renters who have been laid off, furloughed, or have seen their freelance gigs disappear overnight – and who will emerge from this crisis still owing thousands of dollars in unpaid rent.
“No single law can single-handedly solve the eviction crisis,” says the bill’s sponsor, Senator Brad Hoylman, “but the Tenant Safe Harbor Act is a one crucial step to address the looming tidal wave of evictions.”
Yet, as Manhattan’s rental vacancy rate reaches the highest it’s been for 14 years, is anyone’s landlord cutting them any slack?
“Not a single person I know, rich or poor, has been able to get their management company to budge beyond the basically mandated extension for payment and ‘incentive’ pay more now, get a discount later garbage,” says Alexis, a tutor and voice-over artist whose work dried up as the pandemic took hold.
She paid March and April’s rent, then withheld May and June because she wanted to see if “things would change or get better.” Her management company said: “Take all the time you need.”
“And after it ends, where is this imaginary five-month rent fund going to come from? Was it sitting in a hope chest? I don’t know of an average New Yorker who has five months of rent just lying around.”
“Which stank,” says Alexis. “It’s not like they had an option. I mean, they can’t evict me.
“And after it all ends, where is this imaginary five-month rent fund going to come from? Was it sitting in a hope chest? I don’t know of an average New Yorker who has five months of rent just lying around.”
Alexis is in the middle of a two-year lease on her Hell’s Kitchen apartment and, while she’s receiving unemployment, the money isn’t enough to cover her expenses. So what are her options?
“I’ve asked, ‘Can I have a one-year lease? Can I go month to month?’ My lease includes $150 for utilities, which I haven’t been using as I haven’t been in the apartment since March 13. So I asked if they could do anything about that.”
The answer: no.
If she breaks her lease from two years to one year (in August), her management company informed her they would keep her security deposit and demand two more months’ rent. “I said I’m absolutely not throwing $9k at you to break a lease. If people don’t have money for rent, how are they supposed to come up with two months plus? Security deposit loss? What a crock!”
Garret was working three jobs when, overnight, he found himself unemployed. “I’ve been battling,” he says.
He’s been living in his one-bedroom apartment in Hell’s Kitchen for 11 years, paying $2,600 a month (“it was $1,600 when I moved in and my landlord has raised it $100 a month every year”).
“So I was haggling with the guy. I told him I’m unemployed and said, ‘I’ll pay you what I can,’ but he won’t cut me any slack at all.”
“My building has not had working stoves or ovens since February 3 – could I be entitled to keep my security deposit?”
Cat got a pay cut as a result of the pandemic and is unable to pay rent so is moving out this month. “I gave them 50 days’ notice on May 28 that I needed to move out by July 20,” she says. They responded by telling her she owes July’s rent and, in addition, they’ll be keeping her security deposit and demanding a two-month cancellation fee. They have since stopped responding to her emails.
“My building has not had working stoves or ovens since February 3,” she says. “Could I be entitled to keep my security deposit? And is it legal for me to not pay the two-month cancellation fee listed on my lease as liquidated damages?”
We brought all these questions to a lawyer. And, while she couldn’t answer any specific issues related to individuals, thisis what she had to say.
Navigating the law – and its continuous changes – can be difficult, says Lynn Horowitz, a senior supervising attorney for Housing Conservation Coordinators, and each individual’s rights may depend on their particular rental agreement.
Q: Will I be responsible for the rent for the remainder of the term if I break my lease early during the COVID-19 pandemic?
A: There is no law that says you can break your lease without consequences during the COVID-19 pandemic. To figure out what you may or may not owe, you should start by reading your lease to see if it contains a clause about terminating your lease early. Even if the lease makes you responsible for the whole lease period, the new rent laws passed in June 2019 require a landlord to “take reasonable and customary actions” to find a replacement tenant if you break your lease early. The bad news, however, is that government restrictions during the pandemic on practices such as the showing of apartments might make a landlord’s failure to find a replacement tenant excusable. Therefore, you may be responsible for the rent during the remainder of your lease term even if you have moved out.
Another thing to look into is if your apartment is supposed to be rent stabilized, but your landlord unlawfully removed it from rent stabilization. If this happened to you, your landlord could have been overcharging you. You could be entitled to a lower rent or to recover money that you overpaid. You may be able to negotiate a better deal to either break your lease or to stay. If you are not sure whether your apartment is rent stabilized, you should request a rent history from the Division of Housing and Community Renewal (DHCR) and consult with an attorney. To request your rent history, visit DHCR’s website at https://portal.hcr.ny.gov/app/ask or text “Rent History” to (646) 783-0627.
For many tenants who want to break their leases early, the best option may be negotiating with your landlord to work out a deal. If you come to an agreement, make sure it is in writing.
Q: I am breaking my lease before the end of the lease term. Can my landlord keep my security deposit?
A: You should always check your lease to see if there is a clause about returning security deposits. If you have not yet vacated your apartment but are negotiating breaking your lease with your landlord, you should discuss your security deposit as part of the negotiation. If you have already left your apartment and your landlord has failed to give you a detailed written explanation of why they have not returned your security deposit, you may have an argument that the landlord must refund the deposit to you based on General Obligations Law § 7-108.
Q: I am breaking my lease before the end of the lease term. Will this affect my credit?
A: Whether it is during the COVID-19 pandemic or not, if you owe money to your landlord, it could affect your credit. If you are breaking your lease, you should make sure to include in a written agreement with your landlord whether you owe any rent or are released from your rent obligations.
Q: What are my rights if I cannot pay my rent during the COVID-19 pandemic?
A: As of June 30, 2020, there is no law in New York State that blanketly forgives rent during the COVID-19 pandemic. If you have suffered a financial hardship during the pandemic, however, you may have a defense to facing eviction for not paying rent during the period from March 7, 2020 until New York State is fully reopen. Nevertheless, you would still be responsible for that rent, and your landlord could get a money judgment against you, which could affect your credit. The law that made this happen is called the “Tenant Safe Harbor Act,” which Governor Cuomo signed into law on June 30, 2020.
The Emergency Rent Relief Act, signed by Governor Cuomo on June 17, 2020, provides some rent arrears assistance to some qualifying tenants who have lost income during the pandemic, but not to all tenants. It provides rent relief to cover the rent for the period from April 1 through July 31, in the form of a voucher paid directly to landlords if the tenant meets certain, complicated eligibility criteria. In order to qualify for this rent relief, the tenant’s rent must be more than 30% of their household income, their household income must be less than 80% Area Median Income, and they must have lost income during the covered period.
If you are eligible for unemployment insurance or are otherwise facing a financial hardship due to the COVID-19 pandemic, you may use your security deposit towards rent that you owe. However, you would still have to pay back the amount of security deposit that you used at a rate of 1/12 the amount used per month. Those repayments start becoming due within 90 days that you used your security deposit as rent. Read more in Governor Cuomo’s Executive Order 202.28.
Your landlord may start an eviction court proceeding against you if you are behind on your rent, but you cannot be physically evicted from your home until a new order is issued by the New York State Chief Administrative Judge. In order for your landlord to start a nonpayment eviction proceeding against you, your landlord must state that it believes in good faith that you are not eligible for unemployment insurance, are not otherwise facing financial hardship due to the COVID-19 pandemic, or are not subject to any other state or federal eviction protections. After August 20, 2020, this requirement may change.
Lastly, your landlord may not demand or collect a late fee for the period from March 20, 2020 through August 20, 2020. Read more in Governor Cuomo’s Executive Order 202.28, available at https://www.governor.ny.gov/news/no-20228-continuing-temporary-suspension-and-modification-laws-relating-disaster-emergency.
You may consider contacting your landlord to let them know that you are facing a financial hardship due to COVID-19. You may also consider negotiating a repayment plan with your landlord or investigating what rental assistance or grants you may be entitled to.
Q: If my apartment needs repairs or if I have not had access to certain amenities due to COVID-19, can I get a rent reduction?
A: Whether you live in a rent stabilized apartment or not, your landlord is responsible for maintaining your apartment in a way that you are able to comfortably and safely use it. A landlord shall ensure that an occupant “shall not be subjected to any conditions which would be dangerous, hazardous or detrimental to their life, health or safety.” If your landlord is breaching this in some way, for example, by not providing you with hot water, you may be entitled to a rent reduction whether or not you intend to break your lease. If you are not able to negotiate with your landlord, you may want to call 311 to request an inspection from a city agency to get a violation placed.
In addition, if you live in a rent stabilized apartment, your landlord is generally required to maintain the same services that it provided to you when you first moved in throughout your tenancy. If you live in a rent stabilized apartment and your landlord has removed a service or access to an amenity, you may be entitled to a rent reduction. However, if certain services or amenities are not legally allowed to be offered during the pandemic, you may not be able to get a rent reduction. You can file an application for a rent reduction based on decreased services on DHCR’s website.
Similarly, if your lease requires you to a pay a fee for a certain utility, but you have not been using it because of COVID-19, unfortunately, you may still be required to pay that fee.
Q: I live in a rent stabilized apartment. Can my landlord increase my rent on my next lease renewal?
A: If you live in a rent stabilized apartment, your landlord may only increase your rent by the amount approved by the Rent Guidelines Board and only by offering you a proper lease renewal. For rent stabilized lease renewals beginning October 1, 2020 through September 30, 2021, landlords cannot increase your rent at all (a rent freeze) for a one-year lease renewal term. For a two-year lease renewal term, your landlord cannot increase your rent for the first year, but for the second year, can increase your rent by 1%. For renewal leases starting between October 1, 2019 and September 30, 2020, your landlord is still entitled to a 1.5% increase for a one-year renewal option and 2.5% increase for a two-year renewal option.
For specific questions about your rights as a tenant, call Housing Conservation Coordinators at 212-541-5996 to schedule a legal clinic or intake appointment.