COVID-19 Eviction Moratoriums – Legal or Not?

As readers of this blog may be aware, there is currently a moratorium on eviction cases in New York State.  This means that, with certain exceptions, new eviction cases cases cannot be filed with the appropriate Court, and cases which have already been commenced have been “stayed.”  Legally, a case which has been stayed cannot progress towards a resolution, such as a Judgment and Warrant of Eviction, while the stay remains in effect.  In addition, if a Court has already issued a Warrant of Eviction prior to the stay being in effect, the Marshal or Sheriff will generally not proceed with the actual removal of the tenant, unless certain exceptions apply.

Currently, there are two eviction stays in effect, one from New York State, and the other from the federal government.  These stays will be discussed further in this article.

The eviction stay in New York State is currently in effect until May 1, 2021.  However, there are several legal challenges to this stay.  The first involves the current scandal involving the Governor relating to the concealment of the exact figure of New York State nursing home deaths due to COVID-19.  As a result of this, and other controversies involving the Governor, there have been discussions of removing his emergency powers, which were granted to him due to the pandemic.  The executive orders staying New York State evictions were issued by Mr. Cuomo under these emergency powers.  If he his stripped of these powers, he will not have the necessary authority to extend the New York State moratorium when it expires on May 1.  As a result, evictions and eviction cases may resume at that time, unless the state legislature decides to pass emergency legislation extending the moratorium.

Further, a lawsuit was recently filed by a group of New York state landlords against the Attorney General of New York State, Letitia James, in Federal Court, arguing that the eviction moratorium as ordered by Governor Cuomo is unconstitutional.  There are several reasons given in the Complaint in an attempt to overturn the moratorium, and allow evictions to proceed in New York.  Instituted under former President Trump, the moratorium on evictions made it a crime for landlords to evict certain tenants who are unable to pay rent during the pandemic.  Current President Biden and Congress extended the moratorium through March, 2021.

A recent Court decision issued by a federal judge in Texas found the federal stay to be unconstitutional, holding that the federal government lacked the necessary Constitutional authority to regulate evictions, which are generally governed by State laws.

U.S. District Judge John Barker’s decision is likely to be appealed to the Fifth Circuit, which is an appeals Court covering Texas.  It is possible that the U.S. Supreme Court may have the final determination in whether the federal government has the power to stay evictions due to the pandemic.

Our firm will continue to monitor all developments in the status of evictions in New York, whether we are representing the landlord or the tenant.  We hope that all Courts will be able return to normal operations in the near future, and that the pandemic becomes a thing of the past.