rent strike sign

Sadef Ali Kully

A sign protesting rent collections in Brooklyn during the height of the Coronavirus epidemic.

The U.S. Supreme Court on Thursday struck down a key piece of New York’s eviction moratorium, blocking a provision that allowed tenants to fend off Housing Court proceedings by swearing they had experienced a COVID-related financial hardship.

In an unsigned decision, the country’s highest court sided with a group of New York property owners who challenged the state’s COVID Emergency Eviction and Foreclosure Prevention Act (CEEFPA), which has frozen nearly all evictions in the state since December 2020. The legislation, set to expire Aug. 31, has enabled tenants to effectively halt eviction proceedings by submitting a hardship declaration form—a newly created document attesting to the economic impact of the pandemic on the applicant’s ability to pay rent.

The court’s conservative justices ruled that the “scheme violates the Court’s longstanding teaching that ordinarily ‘no man can be a judge in his own case’ consistent with the Due Process Clause.”

The decision specifically applies to tenants who’ve submitted that hardship declaration form to stay out of housing court, allowing them to self-certify financial hardship and which “generally precludes a landlord from contesting that certification and denies the landlord a hearing,” the court’s order explains. The ruling leaves in place the state’s Tenant Safe Harbor Act, which allows tenants to use a COVID-19 hardship defense in housing court and temporarily prevents evictions for tenants whose landlords commenced nonpayment proceedings during the pandemic.

The court’s three liberal justices dissented from the majority opinion, with Justice Stephen Breyer writing that the decision puts New Yorkers at risk of “unnecessary evictions” and citing the slow rollout of the state’s Emergency Rental Assistance Program (ERAP). The state’s Office of Temporary and Disability Assistance (OTDA) has so far issued less than 5 percent of the state’s roughly $2.2 billion ERAP relief fund to landlords whose low-income tenants could not pay rent during the pandemic.

“While applicants correctly point out that there are landlords who suffer hardship, we must balance against the landlords’ hardship the hardship to New York tenants who have relied on CEEFPA’s protections and will now be forced to face eviction proceedings earlier than expected,” wrote Breyer, who was joined by Justices Sonia Sotomayor and Elena Kagan. “This is troubling because, as noted, New York is in the process of distributing over $2 billion in federal assistance that will help tenants affected by the pandemic avoid eviction.”

Breyer also said the court was interfering with the powers of the state’s legislative branch to set policy. “The New York Legislature is responsible for responding to a grave and unpredictable public health crisis,” he wrote.

More than 830,000 New Yorkers owe back rent, according to researchers at National Atlas Equity, a policy group affiliated with the University of Southern California. In a statement, incoming Gov. Kathy Hochul—set to take over the governorship at the end of the month following Andrew Cuomo’s resignation—said she would work with the legislature to shore up the current moratorium.

“No New Yorker who has been financially hit or displaced by the pandemic should be forced out of their home,” Hochul said.

Tenant advocates say the ruling is a crushing blow to renters and will force thousands of New Yorkers to head to housing court to try to combat eviction proceedings. Advocates and several lawmakers have been urging the state to extend current eviction protections until ERAP money reaches more landlords. “We’re going to see massive evictions,” said Ellen Davidson, a staff attorney in Legal Aid’s housing division.

“There are cases that are keyed up and just waiting for the end of the eviction moratorium,” she said Thursday evening. “I think those notices could go out tomorrow, which means tenants who want to stop the evictions have to rush to court tomorrow.”

New eviction cases typically take months to resolve, but tenants who faced eviction just prior to the pandemic moratorium are at particular risk of losing their homes. Many landlords will likely seek to renew eviction orders that have expired.

Davidson urged tenants facing eviction to secure an attorney under the city law that gives renters the right to a lawyer in housing court. Renters represented by a lawyer in housing court are far more likely to prevent an eviction than clients without counsel, numerous studies have shown. Tenants who receive an eviction notice can call 311 and ask to connect with a lawyer, she said.

In a statement, Legal Aid said tenants “have suffered immensely during COVID-19 [and] will have no trouble proving hardship and satisfying the supreme courts’ mandate.”

The property owners who challenged the state law were represented by the landlord group Rent Stabilization Association, which hired attorney Randy Mastro, a former deputy mayor, to argue their case. Mastro praised the court’s decision in a statement Thursday.

“New York recently reopened in all other respects, yet its eviction moratorium remained in place, barring the courthouse door to landowners unable to gain access to their own properties from holdover tenants, many of whom haven’t paid rent for the past 17 months,” Mastro said.

But Jay Martin, the executive director of the rent stabilized landlord group Community Housing Improvement Program, said he did not consider the ruling a “victory.” The decision simply means property owners will have a chance to have their cases heard in court and gain leverage in nonpayment or other tenant disputes, he said.

“It’s what we always said from day one: The eviction moratorium helps no one pay their rent, pay their mortgage, or pay their property taxes and what we need to focus on is get rent relief out the door,” Martin said. “We stand ready to work with tenants, property owners and government officials to make sure there isn’t a wave of evictions.”

Martin said he is advising landlords not to rush to file evictions and instead wait for the state to release more ERAP money—though he has pressed New York officials to distribute the money much faster.

“I tell them that if someone didn’t have money to pay rent yesterday, they’re not going to have money to pay rent tomorrow,” Martin said. “You’re going to be left with an empty apartment and you’re not going to get the back rent.”

Two lawmakers have introduced a bill to extend the state’s eviction moratorium, and advocates are now urging the legislature to reconvene and adjust the hardship form rules to fit the Supreme Court’s ruling.

Manhattan State Sen. Brian Kavanagh, who sponsored CEEFPA last year, told City Limits that lawmakers would “see if there’s a way to shore up the moratorium by taking action consistent with what the Supreme Court has said.”

He criticized the justices for potentially exposing potentially hundreds of thousands of New Yorkers to the close confines of housing courts amid a surge in COVID cases.

“It’s a basic public health measure and we think it was in the powers of the legislature given the pandemic. It’s disappointing that a majority of the Supreme Court disagreed with us,” he said. “There are hundreds of thousands of households that are now in danger. And it’s not just a danger to those households. It’s a danger to all of us.”

Kavanagh said state lawmakers would work with OTDA to streamline ERAP payments.

“It needs to be making payments at a much larger scale and more rapidly than it has been,” he said. “The ultimate protection for a tenant is going to be having their rent paid.”