Ask Sam: I had to stop paying rent. What will happen next?

Under normal circumstances, your landlord could begin eviction proceedings against you for nonpayment of rent—but the circumstances now are anything but normal, says Sam Himmelstein, a lawyer with the firm Himmelstein, McConnell, Gribben, Donoghue & Joseph who represents residential and commercial tenants and tenant associations. 

Ordinarily, if a tenant has not paid their rent by the 5th of the month, the landlord can send them a notice stating that their rent is late. If the tenant doesn't pay after this point, the landlord can then serve them with a 14-day rent demand and then start a summary non-payment proceeding. The tenant can respond by going to the clerk’s office and filing a written or oral answer, or having an attorney answer. They will then be assigned a court date, and can go to housing court to defend themselves either with or without a lawyer.

“Pre-Covid, in a landlord-tenant case, you could be ordered to pay all or some of the rent you owe, or enter into a payment plan,” Himmelstein says. “If you don’t meet the obligations to pay within the time period that the court set or you agreed to, you could be evicted, and you’d have a money judgment against you.”

But in the Covid era, much remains uncertain. There are several bills pending in the New York State legislature that, if passed, could offer rent forgiveness for tenants affected by the coronavirus crisis as well as set up an emergency fund for struggling landlords.

“We don’t know which, if any, of these bills will be passed,” Himmelstein says. “We don’t know if there will be a rent suspension, or a law that says post-Covid you can’t be evicted, or if landlords are going to flood the courts with eviction cases once courts reopen.”  

Tenant lawyers, in the meantime, are weighing a number of possible defenses for clients who are sued for nonpayment of rent. One option is a force majeure (i.e. act of God) defense, though the utility of this depends on the tenant’s lease. Other potential defenses include impossibility of performance, frustration of purpose, failure of consideration, and breach of the warranty of habitability.

“Most leases with force majeure clauses don’t include pandemics,” Himmelstein says. “And the other defenses have been narrowly construed by the courts. But this is such an unprecedented situation that maybe the law will adjust. People shouldn’t be evicted because they lost their jobs because of the economic crisis caused by the Covid pandemic.”

A complicating factor for tenants right now is that landlords are being advised not to negotiate on rent reductions, as the real estate industry awaits the outcome of pending legislation.

But some tenants who withhold rent may have valid defenses beyond loss of income due to Covid-19. Tenants who are dealing with conditions in their apartment or building that breach the warranty of habitability, for instance, can argue they are withholding rent due to poor conditions and lack of necessary repairs.

Others may find if they look at their apartment’s rent history that they should be stabilized and are being overcharged on rent, another valid defense.

“Some of these tenants should be rent-stabilized, but the landlord is claiming they’re market-rate. If the landlord sues them, they can defend themselves by saying they should be stabilized and their rent is illegal, which could allow them to collect overcharges, treble damages, interest, and attorney’s fees,” Himmelstein says. “Their landlords may be nervous about bringing them to housing court and having a judgment made against them for overcharges.”

And if these defenses don’t apply to you, you still have time on your side: Courts are unlikely to reopen for non-emergency cases anytime soon, and you are not at risk of being sued or evicted until they do.

“I don’t see the courts reopening until next year,” Himmelstein says. “And although historically, economic hardship has not been a defense for the nonpayment of rent, we don’t know if it’s going to be different after this.”

Related: 

Ask Sam: What are the rules for evicting rent-stabilized tenants in NYC? (sponsored)

Ask Sam: My wife and I have been laid off. What happens if we can't pay our rent? (sponsored)

Ask Sam: What happens if you have a case pending in NYC housing court during the coronavirus crisis? (sponsored) 

Ask Sam: Could I lose my rent-stabilized apartment if I'm staying with family because of the coronavirus? (sponsored)

Read all our Ask a Renters Rights Lawyer columns here.

Sam Himmelstein, Esq. represents NYC tenants and tenant associations in disputes over evictions, rent increases, rental conversions, rent stabilization law, lease buyouts, and many other issues. He is a partner at Himmelstein, McConnell, Gribben, Donoghue & Joseph in Manhattan. To submit a question for this column, click here. To ask about a legal consultation, email Sam or call (212) 349-3000.