On August 5, Governor Cuomo extended the following New York Executive Orders affecting tenants and property owners1 and on August 12, 2020, New York's Chief Administrative Judge Lawrence Marks procedurally extended the eviction moratorium2.
Foreclosure And Eviction Moratorium
The moratorium on evictions by landlords of residential or commercial tenants and foreclosures by lenders of residential or commercial properties for those leases and mortgages rented or owned by someone "eligible for unemployment insurance or benefits under state or federal law or otherwise facing financial hardship due to the COVID-19 pandemic" was extended until September 4, 20203.
New York State Executive Order 202.48 removed the restrictions on residential foreclosure and evictions because they were superseded by the following legislation4 which grants relief until the date on which "none of the provisions that closed or otherwise restricted public or private businesses or places of public accommodation, or required postponement or cancellation of all non-essential gatherings of individuals of any size" continue to apply:
(1) Residential mortgagors who have suffered financial hardship during the COVID-19 pandemic are permitted 180 days of mortgage forbearance, which may be extended by such mortgagor for an additional 180 days5; and
(2) The NY Tenant Care Act6 prohibits evictions of residential tenants for non-payment of rent if they have suffered financial hardship during the COVID-19 pandemic.
Justice Marks procedurally extended the eviction moratorium7 for eviction proceedings filed after March 16, 2020 as follows:
(1) eviction proceedings filed before March 17 may proceed, but eviction proceedings (both residential and commercial) filed after March 16 continue to be suspended;
(2) residential eviction cases filed before March 17 (including cases where a warrant of eviction has already issued but not been executed) must be conferenced before a judge before any further action is taken, and no outstanding or new residential warrants of eviction may be executed prior to October 1, 2020; and
(3) subject to New York State Executive Orders, commercial evictions may proceed without a conference.
No Late Fees for Late Rent Payment
From March 20, 2020 until September 4, 2020, landlords, lessors and grantors are prohibited from demanding -- and are not entitled to -- any payment, fee or charge for late payment of rent8.
Residential Lease Relief: Use of Security Deposits for Rent
From May 7, 2020, until September 4, 20209, residential tenants or licensees eligible for unemployment insurance or benefits under state or federal law or are otherwise facing COVID-19 financial hardship, can request that their landlord apply their security deposit (including accrued interest) to pay past due rent or future rent, and the tenant/licensee will replenish the security deposit at the rate of 1/12 of the amount used as rent per month starting at least 90 days after the date security deposit is first applied to a rent payment. Landlords are required to grant such request and enter into a written agreement with the tenant/licensee setting forth the material terms. The tenant/licensee remain liable for any rent not covered by their security deposit. Landlords are forbidden from "harassing, threatening or engaging in any harmful act to compel such agreement.
Businesses and Commercial Building Owners May Require Temperature Checks
From June 6, 2020 until at least September 4, 2020, commercial building owners, retail store owners and those authorized on their behalf to manage public places within their buildings and businesses, are given additional discretion to require individuals to have their temperature checked prior to be allowed admittance, and deny admittance to anyone who refuses to have their temperature checked or whose temperature is above 100.410.
Use Of Outdoor Space by Restaurants and Bars
Subject to NYS Department of Health guidance, until at least September 4, 2020, restaurant and bars11 are permitted to:
(1) serve patrons food and beverage on-premises only in outdoor space; and
(2) expand their premises licensed by the NY State Liquor Authority to use:
(a) contiguous public space, including sidewalks and closed streets (subject to the reasonable approval of the local municipality), and/or
(b) unlicensed contiguous private space under the restaurant or bar's control (subject to reasonable limitations and procedures set by the Chairman of the NYS Liquor Authority).
If you have questions about the updated real estate laws, or about any other New York commercial real estate matters, please contact Lauren Erbst at 212 705 4898 or lerbst@fkks.com.
Footnotes
1 New York State Executive Order 202.55
2 https://www.nycourts.gov/whatsnew/pdf/Rev_Ev_8_12.pdf
3 New York State Executive Order 202.55
4 New York State Executive Order 202.48
5 The Laws of New York 2020, Chapter 112
6 The Laws of New York 2020, Chapter 127.
7 https://www.nycourts.gov/whatsnew/pdf/Rev_Ev_8_12.pdf
8 New York State Executive Order 202.28
9 New York State Executive Order 202.55
10 The temperature currently proscribed by New York State Department of Health Guidelines.
11 Executive Order 202.52 prohibits establishments with on premises privileges (restaurants, taverns, manufacturers with tasting rooms, etc.) licensed by the NYS Liquor Authority from serving alcoholic beverages unless such alcoholic beverage is accompanied by the purchase of a food item which is consistent with the food availability requirement of the license under the NYS Alcoholic Beverage Control Law.
Originally published August 18, 2020.
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