The New York State Senate and Assembly recently passed the COVID-19 Emergency Rental Assistance Program of 2021 (ERAP). The program is administered by the Office of Temporary and Disability Assistance (OTDA). The OTDA website is live but is not yet accepting applications as of today, May 13, 2021. ERAP will compensate landlords and owners for up to 12 months of rent arrears and three months of prospective rent owed by tenants. Both landlords and tenants can apply for the program, but the money will be disbursed to landlords and property owners.
ERAP imposes harsh conditions on landlords. If tenants qualify and landlords refuse the money, the law gives tenants an affirmative defense in eviction proceedings and proceedings seeking a judgment for the back rent brought within a year of the date that OTDA determines that the tenant is eligible. If the landlord still hasn’t accepted the money for a year after the initial eligibility determination, the landlord will be deemed to have waived the rent arrears and won’t be able to bring eviction proceedings on the basis of non-payment during the period that OTDA found the tenant eligible for ERAP, nor will the landlord be able to sue and collect a monetary judgment for the back rent that OTDA found eligible for ERAP. The back rent will be permanently waived.
However, if landlords accept the money, they can’t raise rent for a year after the first rental assistance payment is received, and more significantly, they can’t evict tenants on the basis of expired lease and “holdover tenancy.” The statute doesn’t define “holdover tenancy,” but because the language refers both to expired leases and holdover tenancy, this suggests that landlords cannot bring holdover eviction proceedings on grounds other than the expiration of the lease, such as bad behavior. Landlords may therefore not be able to evict destructive tenants and tenants violating lease provisions such as prohibitions on smoking or pets.
The details of ERAP are not yet clear, but they will become clearer once the OTDA has released the application that should include the terms to which landlords must agree.
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James H. Cook, Attorney at Law 