Tenants may not be able to get an attorney New York City housing courts are moving back to pre-pandemic procedures and full in person operations. Right to Counsel has not been able to keep up with the pace of cases being scheduled. Many tenants are not getting representation at this time. Many of the protections and accommodations that were in place during COVID have ended. Changes are occurring on a weekly basis and each borough's return to full in-person operations will vary.
Answering Nonpayment Cases Nonpayment cases must be answered in person in the housing court within 10 business days. When a tenant files an answer, the court will assign a court date for the first appearance. If tenants do not answer their petition, the landlord can request a default judgment and proceed with an eviction.
Answering Holdover Cases Holdover cases will have a court date automatically scheduled and tenants may file written answers by going to the housing court to get the form. Written answers are not required in holdover cases.
First court date and RTC intake Tenants must attend the first court date in order to be eligible for a lawyer
Eligibility screening will be done on the first appearance.
In some boroughs, and on some days, where the legal service providers intake appointments are full, tenants might be offered advice only.
Tenants must check in with the court at the first court date and ask where to do an intake for right to counsel
Tenants should not wait or expect someone to offer help.
Tenants may ask for an adjournment for time to prepare the court documents and defenses in the case.
Negotiating a stipulation
Many tenants will need to handle their cases without a lawyer. Tenants should know who is who in the court room and the court halls. Typically, the landlord’s lawyer will approach the tenant and want to talk about the case. They might try to talk to the tenant in the hall or in the courtroom. Tenants should identify the other people involved with their court case: the court room will have a judge, court clerks and court attorneys. Tenants might also see HRA staff and the staff of legal service providers (lawyers who represent tenants). Many of these folks can help a tenant understand what is going on.
Tenants should be careful. The landlord's attorney can and may use things a tenant says against the tenant.
Tenants who do not have an attorney can negotiate their own stipulations. Tenants can push for enough time to pay, move out, cure an issue, or resolve the case some way. They can ask that the terms they agree to be written in the stipulation. Tenants can ask for time to read the whole stipulation and ask questions about any section that they don't understand.
The court attorney can help negotiate. The court attorney works for the judge and can help the tenant understand what the legal language in the stipulation means. However, the court attorney is not the tenants attorney and tenants should not assume the court attorney is working in the tenants interest. They are simply there to help resolve the case between the landlord and the tenant.
Read the language in the stipulation carefully. Tenants need to understand every part and what exactly all the terms are. Every word matters!
Click on this guide, made in collaboration with the Center for Urban Pedagogy, for tips on how to negotiate stipulations in Housing Court.
Learn more about how to best help self-represented tenants in this workshop presented by HCA Advocates
ERAP: when does an ERAP application pause a case?
The Emergency Rental Assistance (ERAP) program was created by the federal government to pay rent arrears for tenants who were affected by the pandemic. ERAP protected tens of thousands of New Yorkers from eviction. The portal is still open for new applications. The state has currently committed to paying applications filed by June. They hope to get more money for the program so more back rent can be paid. The latest reports show that the program has paid rent arrears for over 190,000 households in New York and close to $3 billion is going to landlords for lost rent. ERAP can pay up to 12 months of back rent plus up to 3 months of future rent.
Housing Court cases are supposed to be paused, or stayed, while tenants apply for ERAP. Most tenants are also protected from being evicted for rent that ERAP pays.
When the tenant applies for ERAP and is waiting for the decision they are responsible to pay the ongoing rent.
Eviction protections
Tenants who applied for ERAP are protected from eviction in many situations:
Tenants who applied, and were approved, are protected from eviction for rent owed for the months covered by the payment.
Tenants with pending applications are also protected from eviction. If the landlord filed an eviction case against the tenant, the case cannot move forward in Housing Court until they receive a decision on the ERAP application.
In holdover cases, landlords can ask the court to “vacate the ERAP stay” or lift the pause.
Tenants who applied and were approved cannot be evicted in holdover eviction cases for one year if their landlord accepted back rent from ERAP. There is an exception for cases claiming “nuisance” or the tenant is a danger to other tenants in the building. The landlord has to prove the claim that the tenant is a nuisance.
Tenants who received conditional approvals, because the landlord didn’t cooperate, are protected from being sued for the rent covered by the application, and maybe protected against holdover cases for six months.
Landlords cannot file new cases for rent owed for the months covered by the tenant's ERAP application.
Many tenants are hearing confusing information. Many of the court issues related to ERAP have not been settled yet. Judges and lawyers disagree on which cases should be dismissed or paused.
General guidelines
Tenants with new cases who applied for ERAP (and don't have a decision yet), can tell the court about the pending ERAP when filing the answer or at the first appearance. This might pause the case.
Tenants in nonpayment cases where ERAP paid part or all of the back rent should show the court the notice from the state which describes the payment and the months covered.
Any tenant with a pending ERAP application should tell the court - even for older cases filed before the pandemic. Bring proof of an ERAP application or proof of an appeal. These might pause the court case.
Judges are not all in agreement on when ERAP can pause a case. Tenants should try to get legal advice if they have questions about how an ERAP application helps their case. Judges have said:
A case can move forward in court if the landlord is suing for months of rent that are not covered by the ERAP application or if the landlord does not plan to accept the rent (and the ERAP rent will not end the case).
A case that was started before the tenant applied for ERAP does not have to be dismissed.
Some judges have said that licensees and squatters cannot use the protections of ERAP - (licensees and squatters are not named on the lease and are not the original tenant). Some judges have allowed a licensee who is claiming succession rights to be protected (the person has rights to the apartment after the prime tenant dies or moves out).
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