On August 12, 2021 the United States Supreme Court issued a temporary injunction barring enforcement of Part A of the COVID-19 Emergency Eviction and Foreclosure Prevention Act of 2020 (the “Residential Moratorium”).   In Chrysafis et al. v Marks, 594 U.S. ____ (2021), the Supreme Court held that the Residential Moratorium’s hardship declaration mechanism, which “generally precludes a landlord from contesting th[e] certification [set forth in the signed hardship declaration form] and denies the landlord a hearing . . . violates the Court’s longstanding teaching that ordinarily ‘no man can be a judge in his own case’ consistent with the Due Process Clause,” and as a result enjoined enforcement of the Residential Moratorium. A copy of the ruling is available here. Thus, at least for the moment, residential landlords don’t have to serve the hardship declaration form together with pleadings and predicate notices as the Residential Moratorium had previously required.    However the landscape is still complicated because various New York State legislators have proposed extending the Residential Moratorium to October 31st. Such an extension, if enacted, would likely involve a different moratorium mechanism that complies with the Supreme Court’s ruling by providing some form of hearing in connection with a tenant’s hardship claims. More complication but at least due process. Even if New York State does not extend the Residential Moratorium, New York landlords may be constrained by the application of the federal CDC moratorium, which is also being challenged in court.   

On the commercial front, the COVID-19 Emergency Protect Our Small Businesses Act of 2021 (the “Commercial Moratorium”) contains a hardship declaration mechanism that is virtually identical to that contained in the Residential Moratorium. However, the Commercial Moratorium was not before the Supreme Court and its current status is not clear. Nevertheless, with the Supreme Court’s holding that the hardship declaration mechanism violates due process, it appears certain that the Commercial Moratorium will not be extended beyond August 31 in its current form, if at all.  

The bottom line is that the eviction landscape is still complicated and with politicians trying to make it difficult to evict and court’s moving at a slow pace, landlords need to be careful and aggressive in order to get what they need.