New York Eviction Moratorium Challenge Dismissed

A federal judge struck down constitutional challenges to Governor Cuomo’s eviction moratorium orders.

The moratorium allows tenants to apply security deposits to rent provided the tenant replenishes the funds on a defined schedule, and temporarily prohibits landlords from starting an eviction against tenants facing financial hardship related to the pandemic.

The Governor’s Orders did not address then pending eviction cases, but as the Court pointed out the New York state courts closed in March and all eviction cases were suspended.

The first moratorium temporarily paused all evictions regardless of grounds.  A later order clarified that evictions on grounds other than non-payment against tenants experiencing financial hardships could proceed.

A group of landlords sued Governor Cuomo in federal court challenging the constitutionality of the orders on various legal theories. The Court dismissed the case in a summary judgment ruling.

The Court noted as background that evicting a tenant in New York, especially a residential tenant, is slow, cumbersome and extremely tenant-favorable process, especially when compared to analogous procedures in other states.

The Court noted several times in its opinion the temporary nature of the New York eviction moratorium. “[T]here is nothing permanent about [the eviction moratorium order]; it expires on August 19.”

The Court reasoned that the moratorium does not forgive rent, and landlords will be able to attempt to collect and/or evict tenants once the moratorium expires. “As long as the order is in place, tenants will continue to accrue arrearages, which the landlord will be able to collect with interest once the Order has expired. Furthermore, landlords will regain their ability to evict tenants once the Order expires.”

The Court pointed out that landlords “can still initiate eviction proceedings against the tenants who are not facing financial hardship but who have chosen not to pay their rent” and “will be able to move against their other tenants after August 19.”

The Court reasoned that the moratorium is not a regulatory taking because landlords still retain many economic benefits of ownership such as collecting rent from tenants not facing financial hardship and collecting security deposit funds from tenants affected by the pandemic.

The Court stated that the law is clear that “state governments may, in times of emergency or otherwise, reallocate economic hardships between private parties, including landlords and their tenants, without violating” the US Constitution.

Download a copy of the Court’s opinion.

New York Landlord-Tenant Attorneys

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For the past three decades, Lucas has been advocating his clients' interests in federal, state, and local forums. At Newman Ferrara LLP, Lucas represents landlords, tenants, asset managers, real-estate brokers, buyers, sellers, along with cooperative and condominium owners and boards, in a wide array of disputes -- with his accomplishments including a twenty-eight day trial which culminated in a multi-million dollar recovery for his clients.

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We are very experienced TENANT ATTORNEYS with over 25 years of experience in defending all types of eviction proceedings. We defend Non Payment, Holdover and Ejectment eviction proceedings and actions. We represent tenants in Manhattan, Brooklyn, Queens, Staten Island, Bronx, Nassau and Westchester.

We aggressively defend eviction actions and affirmatively assert our client's defenses and counterclaims. We have obtained MULTI-MILLION DOLLAR SETTLEMENTS for our clients. Our clients are professionally represented in a professional, appropriate, respectful and diligent manner.

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Whether residential or commercial property is involved, the landlord-tenant relationship revolves around the landlord providing a safe and habitual premises and the tenant paying rent and maintaining the premises. When one party fails to satisfy one or more of their covenants under a written or oral agreement, such non-compliance can adversely affect the other party’s business or quality of life.

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Landlords Sue City of Los Angeles

Many landlords “have mortgages on their properties that they are unable to pay without a steady stream of rental income.” Landlords “rely on rental income to maintain and secure their properties and pay employees, among other operating and personal expenses, including payment for food and housing for their own families.” Landlords are “also required to pay the substantial property taxes, utility fees and other assessments on their respective properties, which taxes, fees and assessments cannot be paid in the absence of rental income.” Many “cannot financially survive if a significant number of their tenants do not pay rent for a prolonged period of time.”

These are some of the allegations landlords raise in a complaint filed in US District Court challenging the Los Angeles Eviction Moratorium as violating both the California and US constitutions.

Landlords assert that the Eviction Moratorium will put many landlords “out of the rental business, either through foreclosure and/or bankruptcy, ultimately reducing the badly needed supply of rental housing within the City and further driving up the cost of housing.” According to the plaintiffs, the “City was fully aware of this when enacting the Eviction Moratorium, with some officials openly hoping to convert private distressed properties to public housing.”

The City of Los Angeles Eviction Moratorium prohibits “landlords and property owners from initiating or continuing residential eviction proceedings based upon non-payment of rent” but “does not require tenants to provide notice, let alone documentation, of their inability to pay.”

Tenants “may continue to occupy their respective premises at no charge, utilizing the water, power, trash, sewage, and other fees that the landlords must continue to pay without reimbursement.

While the LA Eviction Moratorium “ostensibly only applies if a tenant is unable to pay due to circumstances related to the Pandemic” in reality “it does not require tenants to provide notice, let alone documentation, of their inability to pay.”

Landlords have no process in which to challenge the tenant’s asserted inability to pay. But, the Eviction Moratorium “creates a private right of action in favor of only tenants whereby tenants are allowed to sue for alleged violations of the moratorium, subjecting landlords to civil penalties of up to $15,000 per violation.” (Emphasis originally in plaintiffs’ Complaint.)  

So, “while the Eviction Moratorium bars” landlords from evicting tenants “it provides a new weapon for tenants to use against landlords.”

It is “unlikely that tenants who do not pay rent during the” pandemic “will be in a position to pay back rent, in addition to their normal rent.”  Yet the City gives tenants a grace period that will extend for twelve months beyond the declared pandemic emergency “irrespective of the tenant’s ability to pay some or all rent, the term of the lease, any agreed plan or schedule for repayment, or any evidence demonstrating that the tenant will actually be capable of paying back rent at the expiration of the one-year grace period.”

While landlords can theoretically eventually sue tenants for back, the likelihood of ever actually collecting many months of back rent is minimal, at best. For tenants who move during the moratorium period, there is essentially no chance for landlords to recover rent. If they were to try, the landlords would incur tremendous (and likely unrecoverable) litigation expenses.

These are some of the allegations and arguments made by landlords in their lawsuit challenging the constitutionality of the LA Eviction Moratorium. The landlords conclude that “as well-intentioned as [the Eviction Moratorium] may be” it has the effect of jeopardizing the “businesses and livelihoods” of landlords, and by driving some landlords out of business may take rental properties off the rental market, increasing rental housing scarcity.

If you are a California landlord or tenant, see our landlord-tenant lawyer directory to find legal counsel.

Seattle First in Time Law Upheld

The Washington State Supreme Court recently upheld the Seattle First in Time law. Landlords had challenged the law as unconstitutional. A trial court struck down the First in Time law, but the Supreme Court overturned the trial court and upheld the law.

Seattle residential landlords must post their rental criteria and documentation needed for each criterion. Landlords must note the date and time they receive rental applications and must accept the first qualified applicant. The applicant has 48 hours to accept the lease.

There are certain exemptions for properties in which the landlord also resides.

This short summary is not a substitute for legal advice.

Portland Passes Tenant Screening Restrictions

The Portland, Oregon city council recently passed new laws restricting landlords in screening for rental applicants.

Landlords must give 72 hours notice before accepting applications, then are required to accept the first qualified applicant. The income and credit score requirements landlords may use are capped. Landlords’ use of criminal background checks is limited.

The new laws are aimed addressing homelessness and housing affordability. Critics argue the new laws will drive some landlords out of the market, making rents more expensive and exacerbating the problems.

Washington Legislature Passes Landmark Landlord-Tenant Reforms

The Washington state legislature has passed sweeping changes to residential landlord-tenant laws, aimed at preventing homelessness. The new bill is expected to be signed into law by the governor.

The reforms slow the eviction process and provide tenants new and expanded opportunities to stay in their current housing by paying only rent owed (including utilities and a capped amount of late fees).

Critiques argue these reforms will cause increases in rent for all residential tenants. Since landlords can no longer enforce security deposit payment through an eviction notice, security deposits will be difficult at best to collect. History and basic economics teaches us that landlords will pass this increased risk to all tenants by increasing the rent.

A pay rent or vacate notice will require a 14-day cure period, as opposed to a 3-day cure period. Landlords will have a strong incentive to serve these notices immediately if rent is late, to get the clock moving.

Although in the past landlords often obtained judgments for all money owed, including court costs, these judgments more often than not went uncollected, as they were against tenants with no means to pay the judgments. Under the new law, landlords will have more opportunity to collect some of the money owed than in the past.

Contact and landlord-tenant lawyer for more information about how Washington’s new landlord-tenant laws affect you.

Rent Control Coming to Oregon

Oregon is expected to enact rent control in the near future.

Is this a good idea? A consensus of economists is that it is a bad idea.

Liberal and conservative economists both conclude that rent control is bad economics. In a 1992 survey the American Economic Association found 93% of economists agreed that a “ceiling on rents reduces the quantity and quality of housing available.” [1]

Prominent liberal economist Paul Krugman stated in a New York Time op-ed piece that “rent control is among the best-understood issues in all of economics, and—among economists, anyway—one of the least controversial.” [2] Least controversial because the undesirable side effects of rent control are “immediately obvious” to “an economist, or for that matter a freshman who has taken Economics 101.” [3]

Rent controls exacerbate shortages of affordable housing. Rent controls push landlords to convert properties to non-rental uses, such as condominiums.

After rent control was enacted in Boston in the 1970s, about “10 percent of the city’s rent-controlled housing stock was converted to condominiums and moved out from under the grasp of the ordinance.” [4]  After rent control was reversed in the 1980s, the trend away from renting units out also reversed itself. After rent control ended there was “a 6 percentage point increase in the probability of a unit being a rental” as opposed to a condominium, or other use. [5]

Rent controls discourage landlords from investing in upkeep. With rent arbitrarily capped, landlords have less means and less incentive to maintain units. Landlords are only legally obligated to provide housing that is fit for human habitation. They are not obligated beyond that low threshold.

“Though rent control does not seem to lead to catastrophic maintenance failures, it appears to reduce the maintenance performed on rental units. As landlords can be fined for allowing water and heat failures, but not for cracked paint, this result is not surprising.” [6]

Rent controls lower property values of rental properties, often leading government to make up lost revenue by raising taxes on everyone else. The “tax burden is shifted not only to single family homeowners, but also to tenants in the uncontrolled market.” [7]

Policies that increase housing supply, rather than shrink it, might be better policy.

Minneapolis, for instance, has done away with single-family zoning, opening up development of apartments and condominiums.




[1] Alston, Richard M.; Kearl, J. R.; Vaughan, Michael B. (1 May 1992). “Is There a Consensus Among Economists in the 1990’s?”

[2] Reckonings; A Rent Affair, Paul Krugman, New York Times, June 7, 2000.

[3] Reckonings; A Rent Affair, Paul Krugman, New York Times, June 7, 2000.

[4] Navarro, Peter. 1985. Rent Control in Cambridge, Massachusetts. Public Interest 78(4): 83- 100.

[5] Sims, David P. 2007. Out of Control: What Can We Learn from the End of Massachusetts Rent Control? Journal of Urban Economics 61(1): 129-51.

[6] Sims, David P. 2007. Out of Control: What Can We Learn from the End of Massachusetts Rent Control? Journal of Urban Economics 61(1): 129-51.

[7] Navarro 1985, 96.

Emotional Support Chickens

Emotional support chickens? Really? Read on. 

Under current federal law, all a tenant needs is a letter from a medical professional or counselor that any animal is needed for emotional support, and pretty much the landlord must accept the animal. No choice. No pet fees or deposits. 

Recently in a rental housing industry listserve someone posted about their client whose tenant presented a letter from a doctor indicating the need for emotional support chickens (plural). Now the Housing and Urban Development Department is after the landlord for refusing to allow a chicken coop in the residential rental unit. 

We have no way to verify the story, but there is no incentive for the posting to be fictitious, and the scenario, as crazy as it may sound, is consistent with current federal law on emotional support animals. 

service animal

Companion Animals and Fair Housing

You sometimes see signs in restaurants prohibiting all animals except service animals. Service animals and emotional support animals are not the same things. Different laws apply to service animals and emotional support animals.

The definition of service animal under the Americans with Disabilities Act is a dog trained to do work or perform tasks for an individual with a disability. A service animal does not require professional training, and no certification is required.

An emotional support animal under fair housing laws can be any animal, not just a dog. No training is needed. All that is needed is a simple letter from a doctor or therapist indicating that the individual has a metal disability and that the animal lessons the effects of the disability.

Note that the emotional support animal rules are under fair housing laws. Fair housing laws are for housing, not places of public accommodation such as restaurants. The rules regarding service animals are under the Americans with Disabilities Act, which does apply to restaurants.

Justice Department Combats Sexual Harassment of Tenants

The US Justice Department last October announced the Sex Harassment Initiative  to combat sexual harassment of tenants, proclaiming that “No woman should be made to feel unsafe in her own home.”

Two months later the Justice Dept. filed  a lawsuit against a Kansas landlord on allegations he sexually harassed tenants. The sexual harassment lawsuit is based on allegations that the landlord made unwelcome advances and comments, engaged in unwanted sexual touching, and evicted tenants who refused his sexual conduct. Two tenants had previously made these allegations in a Housing and Urban Development complaint.

The Justice Depart. claims that it in 2017 it recovered over $1 million for sexual harassment victims in housing.

Consult with an attorney if you have questions about laws against sexual harassment of tenants.


Warranty of Habitability

Originally, a landlord had no duty to present the rental in a habitable condition, or to make any repairs to keep it in a habitable condition. The only obligations the landlord had were the terms and conditions in the lease contract. This is still true of commercial tenancies, but in residential tenancies a warranty of habitability is implied as a matter of law.

The seminal court case is Javins v First National Realty Corp decided in 1970.  The District of Columbia Circuit Court of Appeals held that a warranty of habitability is implied in residential leases, and breach of the warranty of habitability is a defense in an eviction.

The Court reasoned that local housing codes require a warranty to be implied. The Court also noted that society had changed since the old common law rules first evolved.

In agrarian England and early America where these rules first developed, the primary purpose of a lease was use of the land for agriculture. If a peasant erected a thatched hut on the land, that was secondary to agrarian purposes. In modern life, a residential tenant seeks a habitable dwelling, not land to farm.

The Court also noted that the modern trend was to treat a lease as contract as well as a conveyance of land. The Court pointed to implied warranties in other consumer contracts, such as sales contracts.

The Javins Court found that landlords and tenants in urban housing markets have unequal bargaining power, preventing tenants from bargaining for an express covenant of habitability.

After the Javins decision, states began adopting an implied warranty of habitability through court decisions and/or legislation. Now in the US a warranty of habitability rule is essentially universal. The standards the landlord must meet to satisfy the implied warranty, and the remedies available to the tenant upon breach of the implied warranty vary among the different states.

If you have questions about the implied warranty of habitability, you should contact a lawyer in your jurisdiction.