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Declaration allows tenants to claim financial loss, health risk when faced with eviction

The eviction moratorium in New York tenants has evolved throughout the pandemic. The language has changed, it has been enhanced, but some advocates say there’s still work to be done. Whether that happens or not, Jeff Feigelson, a longtime tenant-landlord attorney, says that the next several months will be very important in determining the long-term housing situation for many low-income renters.

Since the start of the pandemic, Feigelson has focused on representing tenants. “It’s an important time for them,” he said during a recent episode of The Sunday Conversation on “There are laws protecting them, and since the pandemic started I’ve ended up doing a lot more of that work in the last year.” He says eviction translates to displacement, which was the original issue at play. There was also the issue of preventing renters from moving unnecessarily during the pandemic.

The whole law is based around this concept known as a hardship declaration. Essentially, one of two things has occurred for an individual who is signing such a legal document. They are either experiencing financial hardship, or moving would cause significant health risk.

“Obviously, if you’re making less money than you were before COVID — it’s straight forward,” Feigelson said. He says it’s also enhanced by the broadness, which allows for a tenant to argue that they don’t have the funds to move, or spend on a new security deposit for another home. That can also be argued under the financial hardship portion of the eviction moratorium. “A lot of people live paycheck-to-paycheck — even families that are considered middle class by income,” he added. “They can likely sign the declaration without issue.”

Feigelson says things get complicated when you’re talking about the ‘health risk’ clause. “It could be because they’re older, have a pre-existing condition, or any number of other health risks,” he continued. “Think about that. Obviously if it’s someone who has cancer or something like that it’s obvious, but if someone has asthma, or even if someone they live with had a condition like asthma — they can ask the judge to not evict them.”

The vagueness of the moratorium, which lasts into May creates little incentive for landlords to pursue legal action in the court system. “Landlords have the right to contest, but if you’re a landlord and you’re given a hearing date of March 15, then another appearance is slated for mid-April — what difference does it make if this is settled a few days before the current moratorium expires?”

Feigelson says the court system has been significantly backed-up by the pandemic, too. He says that will change if President Joe Biden extends the eviction moratorium into September, which he has discussed. He says without proper help for landlords, this will mean in some cases, more than a year without income, and no legal recourse.

The consequences could be significant.

He compared the current state mandate to CDC declarations, which were enacted last year. “It was a little tougher for the tenant to sign,” Feigelson recalled. “Like it said that a tenant must pay as much as they possibly can pay, even if it’s part of the rent. So there was an obligation to pay what was affordable. The New York State statute does not have that.” He says that despite early concerns from advocates that there would be differing opinions between judges across the state, given the strictness of the New York’s moratorium “wildly different opinions or interpretations are unlikely.”

Feigelson raised one interesting point that could create complications down the road, as cases are heard in local courts. “There are judges that are part-time judges,” he explained. “They could be landlords themselves. So they sympathize with landlords. Most of the landlords are not multi-billionaires. They’re getting killed. There should be programs for them.” For landlords though there isn’t a ton of hope for collecting on back-rent. Even when the pandemic is over, Feigelson estimates that a very small percentage of renters will catch up, or even pay back over the long-term. “Collecting on a judgment is very difficult, time consuming, and frankly, expensive,” he added. An expense that landlords may not have the cushion to afford in the post-pandemic world.

But what about policy in that post-pandemic world? There’s a contingency of political advocates in New York working to make housing an unequivocal basic right. Many of them believe the pandemic provides the right opportunity to change policy for the better by ending eviction altogether. Feigelson isn’t sold on that prospect. “Personally, I don’t think it’ll happen. I think it’ll go back to being what it was,” he added. “No one’s gonna disagree that everybody needs housing, but someone’s got to pay for it. It’s that simple. So if you could do all that without raising taxes – great – but realistically, I think that’s gonna be difficult to do, so I don’t think things are gonna change long-term.”