New York Landlord-Tenant Provisions in Executive Order 202.28

By: Timothy Lynn

On May 7, 2020, Governor Cuomo issued Executive Order 202.28. The Executive Order contains several provisions affecting landlords and tenants.

Security Deposits For Residential Leases:

Landlords and tenants may agree to use security deposits (and any interest accrued thereon) to pay past or future rent.  Landlords are required to provide this relief to any tenant that is eligible for unemployment insurance or benefits or that is otherwise facing financial hardship due to the COVID-19 pandemic.  Tenants are not required to agree to the use of security deposits in this fashion and landlords are prohibited from harassing, threatening or engaging in any harmful act to get a tenant to agree to the use of the security deposit to pay past or future rent.

Any security deposit so utilized must be repaid in monthly increments equal to 1/12th of the of the amount used to pay rent.  Replenishment payments are not required until 90 days from the date the security deposit was used to pay rent.  The Executive Order contains the following language: “The tenant or licensee may, at their sole option, retain insurance that provides relief for the landlord in lieu of the monthly security deposit replenishment, which the landlord, must accept such insurance as replenishment.”  It is not clear what this refers to.

Late Fees For Residential Leases:

Section 239-a(2) of the Real Property Law is suspended to provide that no late fees are permissible for rent occurring between March 20, 2020 through August 20, 2020.

Evictions For Residential and Commercial Leases:

Currently, pursuant to Executive Order 220.8, there is a moratorium on evictions for 90 days (ending June 20th).  Executive Order 202.28 replaces this moratorium with a 60 day prohibition on the initiation of eviction proceedings or the enforcement of an eviction order for non-payment of rent, if the tenant:

• Is eligible for unemployment insurance or benefits, or
• Is otherwise facing financial hardship due to the COVID-19 pandemic.