Real Estate Legal Alert: Will the Residential Eviction Moratorium Survive?

On December 28, 2020, the New York State Legislature passed the COVID-19 Emergency Eviction and Foreclosure Prevention Act of 2020 (“CEEFPA”) which, among other provisions, enacted a moratorium on residential evictions until May 1, 2021 for individuals experiencing financial hardship as a result of the COVID-19 pandemic. On May 4, 2021, and despite the lapse of the moratorium, the Legislature passed further legislation extending CEEFPA–and consequently the moratorium–through August 31, 2021. Among CEEFPA’s more contested provisions are its prohibition on the initiation of new eviction proceedings, and its stay of pending proceedings, until after August 31, 2021 if a tenant submits a hardship declaration attesting to an inability to pay rent as a result of financial hardship brought on by the pandemic. A recently filed federal court action, however, may end up doing away with CEEFPA altogether.

In Chrysafis et al. v. Marks et al., five plaintiffs, comprised of four individual landlords whose tenants have long refused to pay rent and the Rent Stabilization Association of New York City, Inc., which has approximately 25,000 landlord and agent members, are challenging the constitutionality of CEEFPA. The case names as defendants the Chief Administrative Judge of the Courts of New York State, sheriffs of several counties, and the Commissioner and Director, respectively, of the New York City Department of Investigation. Within their complaint, which was filed in the United States District Court for the Eastern District of New York on May 6, 2021, the plaintiffs seek a declaration that CEEFPA’s stay on nearly all eviction proceedings until August 31, 2021 is unconstitutional. They also seek preliminary and permanent injunctive relief barring its further implementation and enforcement.

The plaintiffs’ claims of unconstitutionality are fourfold. First, they argue that CEEFPA forces landlords to arrange for the service of hardship declarations on their tenants and, as a result, “disseminate government messages with which they disagree”, constituting compelled speech in violation of the First Amendment of the U.S. Constitution.

Second, they argue that CEEFPA impermissibly enables tenants to invoke the protections of the moratorium based upon vague attestations, as contained within the hardship declaration, that they have suffered some “[s]ignificant loss of income,” “[i]ncrease in necessary out-of-pocket expenses,” or “[o]ther circumstances” related to the pandemic. The plaintiffs argue that these and other similarly undefined criteria codified within CEEFPA fail to provide landlords notice of the circumstances under which their tenants are allegedly exempted from eviction and, as a result, constitute a violation of due process under the Fourteenth Amendment of the U.S. Constitution.

Third, the plaintiffs argue that CEEFPA deprives property owners of their right to be heard at a meaningful time and in a meaningful manner with respect to a tenant’s hardship declaration prior to taking away their property rights. Once a tenant submits a hardship declaration, any eviction action, threatened or pending, is automatically stayed until August 31, 2021. Such a scheme, the plaintiffs argue, creates a “recipe and opportunity for abuse” and constitutes an additional due process violation under the Fourteenth Amendment of the U.S. Constitution.

Finally, the plaintiffs argue that CEEFPA deprives property owners of their right to petition the courts for redress in the event of a tenant’s nonpayment of rent. They contend that by categorically barring property owners from exercising their rights to file and prosecute eviction actions until at least August 31, 2021, CEEFPA violates their petition rights under the First Amendment to the U.S. Constitution.

The Court is presently reviewing the parties’ submissions on the plaintiffs’ application for injunctive relief. We will continue to monitor the status of the case and provide updates. If you have questions about this case or require assistance or guidance with eviction proceedings, our attorneys stand ready to assist.

Thank you to summer associate, Kyra E. Ganswith, for assisting with drafting this legal alert.


This communication is for informational purposes and is not intended as legal advice.